Bruce Fein
Constitutional Lawyer and Author

Our safety and salvation lie in the Constitution and the rule of law.
 
That is why the President’s sole oath is to “preserve, protect, and defend the Constitution of the United States.”
 
Thus, President-elect Donald Trump must void President Barack Obama’s Joint Comprehensive Plan of Action (JCPOA) aiming to restrain Iran’s nuclear ambitions because it is an executive agreement that violates the Constitution’s Treaty Clause.
 
The Constitution’s authors worried that the President would betray national interests for ulterior motives in concluding secret agreements with foreign nations. The example of King Charles II was fixed in their memories. The British Monarch unilaterally negotiated the Secret Treaty of Dover with French King Louis XIV in 1670. Among other things, the treaty provided that Charles II would receive a yearly pension from Louis; that additional sums would be forthcoming when Charles jettisoned Anglicanism for Roman Catholicism; that Louis would provide up to 6,000 French soldiers in the event Charles’ treason provoked an English rebellion; and, that Charles would ally with France in its war against the Dutch.
 
Accordingly, Article II, section 2, clause 2 of the Constitution empowers the President, “by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”
 
To provide treaty advice to the President, half of the eight United States delegates to negotiate the United Nations Charter were Members of Congress: Senators Tom Connally (D-Tex.) and Arthur Vandenberg (R-Mich.), and Representatives Sol Bloom (D-N.Y.) and Charles Eaton (R-N.J.). Presidents William McKinley, Warren Harding, and Herbert Hoover similarly included Senators as U.S. delegates to negotiate treaties.
 
Alexander Hamilton elaborated the reasons for the Treaty Clause in Federalist 75:
 
An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
 
President Obama negotiated the JCPOA without congressional participation. Further, the agreement between the United States and Iran is a treaty by any plausible constitutional standard or tradition. Hamilton explained in Federalist 75 that treaty “objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.”
 
The JCPOA fits an agreement between sovereign and sovereign like a glove. Moreover, agreements bearing on nuclear arms have traditionally been treaties. They include the Limited Test Ban Treaty, the Nuclear Non-Proliferation Treaty, the Intermediate Nuclear Force Treaty, the Anti-Ballistic Missile Treaty, the Comprehensive Test Ban Treaty, and the Strategic Arms Reduction Treaty. Even a paltry agreement with Britain over migratory birds was a treaty, i.e., the Migratory Bird Treaty of 1916.
 
Secretary of State John Kerry did not dispute that the JCPOA is a treaty in testifying before the House Foreign Relations Committee. Instead, Mr. Kerry explained that the Obama administration would no longer comply with the Treaty Clause because the threshold of political consensus needed for ratification was too challenging.
 
Rep. Reid Ribble (R-Wisc.) inquired: “Why is this [Iran deal] not considered a treaty?”
 
Secretary Kerry responded:
 
“Well Congressman, I spent quite a few years ago trying to get a lot of treaties through the United States Senate...And frankly, it’s become physically impossible. That’s why...Because you can’t pass a treaty anymore...And it’s become impossible to, you know, schedule, it’s become impossible to pass. And I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics. So I think that’s the reason why.”
 
Alexander Hamilton would have been appalled. The Treaty Clause is to prevent, not to facilitate presidential betrayals or follies.
 
The Constitution’s framers would have impeached, convicted, and removed Mr. Kerry from office for his constitutional perfidy. But Congress has degenerated from a vertebrate to an invertebrate institution over the past several decades. Accordingly, Mr. Kerry escaped congressional rebuke. Congress meekly acquiesced in the JCPOA as an executive agreement.
 
But the Constitution’s separation of powers is a structural bill of rights to protect the American people from tyranny. The Supreme Court has thus held that one branch may not voluntarily surrender its powers to another branch and jeopardize the liberties of the citizenry.
 
Last March, Mr. Trump declared that his “Number-One priority” would be “to dismantle the disastrous deal with Iran.” That is not an option. It is a constitutional imperative until and unless the Senate ratifies the agreement with a two-thirds majority.
 
And if the JCPOA precedent is not disowned by President Trump, it will lie around like a loaded weapon ready for any successor to use to justify an international global warming pact as a constitutionally valid executive agreement that might cripple the American economy.
 
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More: Iran Nuclear Deal Executive Agreements Treaty Clause Trump

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author
President-elect Donald Trump campaigned against the multi-trillion dollar military industrial-counterterrorism complex (MICC). Democratic presidential nominee Hillary Clinton and her battalions of neo-con myrmidons were its drum majors.
If Mr. Trump refrains from dismantling the MICC in favor of invincible self-defense, he will have betrayed his constituents. He will be another outsider who becomes an insider by the seduction of power.
The MICC represents the worst investment in the history of mankind. Continuing MICC wars in Iraq and Afghanistan, for instance, have cost a staggering $6 trillion—nearly one-third of the entire national debt. In exchange for that sum, they have begotten an escalation of international terrorism, record opium production, the birth of the Islamic State of Iraq and Syria (ISIS), and a strengthening of arch-enemy Iran. The MICC is unworthy of even a sentence in The Art of the Deal.
Mr. Trump’s campaigned on making America great again.
In foreign policy, America’s greatness and glory has been the celebration of liberty at home, and exerting influence abroad by example. The principles of equality, self-government, and liberty enshrined in the Declaration of Independence and United States Constitution fell like hammer blows on an anvil across monarchical Europe.
Then Secretary of State John Quincy Adams elaborated in his July 4, 1821 Address to Congress that preserving America’s greatness meant renouncing war except in self-defense, and creating an invincible national shield with the motto: “Freedom, Independence, Peace.” Thus, when Hungary pleaded for United States military intervention to defend against the Russian Bear under the banner of “world leader,” Senator Henry Clay responded:
“Far better is it for ourselves, for Hungary, and for the cause of liberty, that, adhering to our wise, pacific system, and avoiding the distant wars of Europe, we should keep our lamp burning brightly on this western shore as a light to all nations, than to hazard its utter extinction amid the ruins of fallen or falling republics of Europe.”
Senator Clay was echoing President George Washington’s Farewell Address warning against foreign entanglements.
The United States lost its greatness with the birth of the MICC after World War II. It inflated danger abroad manifold to justify its existence and growth. At present, the MICC is gratuitously waging war in seven countries: Somalia, Yemen, Libya, Syria, Iraq, Afghanistan, and Pakistan. It is also engaged in indefinite global wars against ISIS and Al-Qaeda. The MICC scoffs at Abraham Lincoln’s pinpointing the true danger to American greatness:
“-At what point shall we expect the approach of danger? By what means shall we fortify against it?— Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never!—All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
At what point then is the approach of danger to be expected?...It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
To make America great again, President Trump’s foreign policy slogan should be “Tens of billions for defense, but not one cent for world leadership.”
President Trump should immediately end all of the MICC’s wars that are diverting trillions of dollars away from the construction of needed infrastructure; making us less safe by creating more enemies than they are destroying; hijacking our national genius away from production to killing; and, giving birth to a surveillance state that targets every “not-yet-guilty” American.
President Trump should redeploy all of our armed forces stationed abroad back to the United States to defend our borders, our sea lanes, our air space, and our cyberspace. As Otto von Bismarck would not risk the bones of a single Pomeranian grenadier for the whole of the Balkans, President Trump should not risk the life of a single American soldier for a foreigners or foreign nations without allegiance to us.
To symbolize his commitment to invincible self-defense, President Trump should give our armed forces a pay raise after redeployment to the United States.
He should also renounce any treaty commitment to defend another nation from aggression as unconstitutional. The United States Supreme Court held in Reid v. Covert that treaties cannot override the Constitution; and, the latter entrusts to Congress exclusive responsibility for war under Article I, section 8, clause 11. Treaties involve only the Senate.
Finally, President Trump should renounce the Joint Comprehensive Plan of Action (JCPOA) with Iran purporting to restrain its nuclear ambitions. By any legal or historical standard, the JCPOA was a treaty requiring Senate ratification by a two-thirds majority. Instead, President Obama promulgated the JCOPA as an executive agreement in circumvention of the Constitution’s Treaty Clause.
The Constitution is too important to America’s greatness to sacrifice on the altar of political expediency.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

The Constitution’s architects unanimously agreed on the allocation of war powers. They unanimously agreed that only Congress should be entrusted with decisions to initiate war under Article I, section 8, clause 11. (The President would retain authority to “repel sudden attacks”).
The architects made Congress the exclusive steward of the war power because legislators have nothing to gain and everything to lose by gratuitous belligerency. No war monument has ever been erected to immortalize a legislator; and, the powers of Congress recede during wartime.
The opposite is true of the executive branch, whose personality salutes Mars and scorns Minerva. James Madison, father of the Constitution, elaborated:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Future Chief Justice of the United States, John Jay, similarly remarked in Federalist 4:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
The reasons advanced by Madison, Jay, and others against presidential wars did not pivot on the state of weapons technology or speed of travel, but on eternals of human nature, including the incorrigibility of the executive branch in craving war for the sake of war with ulterior motives pernicious to liberty.
In serving as megaphones for an extra-constitutional American Empire and multi-trillion dollar permanent global presidential wars, the New York Times and the Washington Post propagate myths about the war powers worth more than two carrier battle groups to the Pentagon.
Myth 1: Article II of the Constitution empowers the President unilaterally to initiate war—including nuclear war—without a legislative mandate enacted by Congress. 

Article I, section 8, clause 11 of the Constitution unambiguously entrusts to Congress—not the President—exclusive responsibility for deciding to take the nation from a state of peace to a state of war. Every participant in the drafting, debating, and ratifying of the Constitution shared that understanding, including George Washington, Alexander Hamilton, James Madison, father of the Constitution, future Justice of the Supreme Court James Wilson, United States Chief Justice John Marshall, Thomas Jefferson, and John Adams. James Madison expressed the national consensus in a letter to Jefferson: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” That consensus was neither disturbed nor violated for 163 years. Beginning in 1802, for instance, Congress enacted ten statutes expressly authorizing military action by Presidents Jefferson and Madison against the Barbary States. That consensus also shipwrecked President Woodrow Wilson’s League of Nations’ treaty, which would have obligated the United States to defend the boundaries of other nations without congressional declarations of war. To obtain Senate ratification of the United Nations Treaty, Article 43, paragraph 3 specifically requires a congressional declaration of war before the President may use our armed forces to implement a U.N. Security Council resolution. From Potsdam, President Harry Truman cabled Senator Kenneth McKellar: “When any such agreement or agreements are negotiated [to use the United States Armed Forces under Article 43 of the United Nations Treaty] it will be my purpose to ask Congress for appropriate legislation to approve them.”
In sum, there is no intellectually respectable support for the theory that the Constitution authorizes presidential wars.
Myth 2: Treaties ratified by the United States Senate can constitutionally obligate the United States to conduct war on behalf of foreign nations without a congressional declaration of war.
Treaties are subordinate to the United States Constitution, including Article I, section 8, clause 11. Justice Hugo Black elaborated in Reid v. Covert (1956):
“Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
Accordingly, Article V of the 1949 North Atlantic Treaty Organization (NATO) which purports to require to the United States to defend all 28 NATO members from attack, including Estonia, Latvia, and Lithuania, is unconstitutional. The House of Representatives is excluded from the treaty process, and its concurrence is necessary for a congressional declaration of war. James Wilson, future Justice of the United States Supreme Court, underscored the importance of that requirement to the Pennsylvania ratification convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.”
Article V of NATO marked the first occasion in 163 years in which a treaty purported to require the United States to conduct war on behalf of other nations without congressional declarations.
Myth 3: Unconstitutional presidential wars have become constitutional by dint of longstanding practice beginning in 1950 with President Harry Truman’s war in Korea without a congressional declaration.
Constitutional transgressions are not excused because they have been repeated for long years. The United States Supreme Court held in Erie Railroad v. Tompkins (1936) that for a century since Swift v. Tyson (1842) federal courts had been unconstitutionally creating federal common law to govern lawsuits between citizens of different states. The Court similarly held unconstitutional the use of the legislative veto to invalidate executive action in INS v. Chadha (1983), notwithstanding hundreds of such provisions enacted during the previous 54 years with the consent of the President.
The Court explained in Myers v. United States (1926) that great weight is to be given to the practices and understandings of early administrations and Congresses populated by many who had participated in the 1787 constitutional convention. They were uniformly against presidential wars. President George Washington, who presided over the 1787 convention, voiced the standard view: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Myth 4: Presidential wars are constitutionally permissible because Congress repeatedly acquiesces.
It is true that presidential wars without congressional declarations have been chronic since 1950, including but not limited to: President Truman’s war in Korea; President Lyndon Johnson’s Vietnam War; the Secret War in Laos conducted by Presidents Johnson and Richard Nixon; President George H.W. Bush’s war in Panama; President William Clinton’s wars in Bosnia and Serbia; and, President Barack Obama’s wars against Libya and the Islamic State of Iraq and the Levant (ISIL) anywhere on the planet. And it is equally true that Congress has generally acquiesced in these usurpations because terrified of being held politically and morally accountable for matters of supreme significance to the nation and our armed forces. But the Supreme Court has held that the Constitution’s separation of powers does not permit one branch to surrender its powers to another branch, for instance, a line-item veto invalidated in Clinton v. New York (1998). Chief Justice John Roberts elaborated in Wellness International Network, Limited v. Sharif (2015): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers, therefore does not mitigate the harm or cure the wrong.”
Myth 5: The President is entitled to flout the Constitution’s allocation of war powers and conduct presidential wars because changes in technology and the obligation of the United States to exercise world leadership have made the Constitution obsolete in foreign affairs.
The Constitution’s authors were long-headed. They knew experience and unforeseeable changes in circumstances might dictate a need for constitutional alterations or adaptations. Thus, Article V was written to authorize amendments supported by two-thirds majorities in Congress and three-fourths of the state legislatures. The very first Congress proposed the Bill of Rights, which was ratified by the States. No amendment has ever been proposed, however, to disturb the Constitution’s assignment to Congress of exclusive responsibility for decisions to cross the Rubicon from peace to war.
Justice Black denied that the mushrooming United States role in international affairs since the Constitution was ratified in 1787, simpliciter, authorized the exercise of extra-constitutional powers in Reid v Covert:
If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.

All Empires create myths to conceal or expiate lawlessness, cruelties, or double standards. Thus, the Roman Empire turned enemy territories into wilderness and called it peace. The American Empire turns the Constitution’s war powers into a jumble of political calculations with ulterior motives and calls it law. The more things change, the more they stay the same.
 
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Original: Huffington Post