3 ms·

thank you for teaching me something I didn't know. no thank you for being a teeny bit snarky about it, as if everybody obviously should already know this. oh,

thank you for teaching me something I didn't know. no thank you for being a teeny bit snarky about it, as if everybody obviously should already know this. oh, and a small correction, it's not the "treaty under international law" aspect that's bothersome, it's the skirting of the treaty provisions of the US Constitution that raises eyebrows.

dragonwriter 5y ago
> no thank you for being a teeny bit snarky about it, as if everybody obviously should already know this. I was responding to the article text; anyone writing a news article speaking to the prospects for an international agreement coming into force in US law ought to have a basic understanding of how that actually happens in practice in US law. > it's the skirting of the treaty provisions of the US Constitution that raises eyebrows. The treaty provision is a permissive mechanism that allows the President, with strong Senate support, to make agreements with foreign nations while bypassing the House of Representatives role in normal legislation. It is not skirting that to make law within the scope of the legislative power through the normal Constitutional legislative process, just because the content of the legislation was agreed with foreign parties. The treaty power doesn't silently reduce the scope of the legislative power.
- pavon 5y ago
  What are the practical differences between the two? Is it that we aren't making any binding agreement with sovereign countries like we would when ratifying a treaty, instead we just happen to change our laws in line with the accord, but are free to change them again at anytime?
  - dragonwriter 5y ago
    > What are the practical differences between the two? Historically (pre-17th Amendment), the treaty power allows government-to-government agreements without the directly elected representatives of the people intervening to screw things up; their interference was feared to complicate diplomacy. But other than procedural differences, there aren't any practical differences, a treaty ratified by the Senate and a congressional-executive agreement passed by both Houses and the President, and normal legislation (with the President or over his veto), or, I guess, a hypothetical sole-congressional agreement [0] all have exactly the same legal force. > Is it that we aren't making any binding agreement with sovereign countries like we would when ratifying a treaty, instead we just happen to change our laws in line with the accord, but are free to change them again at anytime? The Supreme Court has found (and the fact that Congress in Art. I, Sec. 8, is given the power to define what is and isn't an offense against the law of nations suggests that this is correct) that Congress is free to amend ratified treaties for the purpose of domestic law by normal legislation, so that's not a difference (though it is definitely also true of congressional-executive agreements, which are normal legislation.) [0] where Congress takes a text, say, adopted by an international conference and adopts it over a Presidential veto; active negotiation of such an agreement might have some other legal issues.
- fsckboy 5y ago
  you are using a rhetorical sleight of hand when you say that (paraphrasal) "with strong Senate support the President can bypass the House, but otherwise a treaty can be considered normal simple majority legislation." That's not the way the Constitution is written, and treaties are not normal legislation. I'm not saying that "you're wrong", I'm convinced that it's being done, but imho SCOTUS should overturn this style of treaty.
  - dragonwriter 5y ago
    > I'm not saying that "you're wrong", I'm convinced that it's being done, but imho SCOTUS should overturn this style of treaty. SCOTUS should overturn the Congress exercising using the legislative process to do things expressly within its legislative powers on...what basis? OTOH, congressional-executive agreements aren't new, and have been litigated quite a bit. Heck, SCOTUS has even held a particular one to be included in the delegation by Congress of jurisdiction over treaty interpretation cases to the Courts of Appeal over a century ago. B. Altman & Co. v. United States, 224 U.S. 583 (1912).

dragonwriter 5y ago

> no thank you for being a teeny bit snarky about it, as if everybody obviously should already know this. I was responding to the article text; anyone writing a news article speaking to the prospects for an international agreement coming into force in US law ought to have a basic understanding of how that actually happens in practice in US law. > it's the skirting of the treaty provisions of the US Constitution that raises eyebrows. The treaty provision is a permissive mechanism that allows the President, with strong Senate support, to make agreements with foreign nations while bypassing the House of Representatives role in normal legislation. It is not skirting that to make law within the scope of the legislative power through the normal Constitutional legislative process, just because the content of the legislation was agreed with foreign parties. The treaty power doesn't silently reduce the scope of the legislative power.

pavon 5y ago
What are the practical differences between the two? Is it that we aren't making any binding agreement with sovereign countries like we would when ratifying a treaty, instead we just happen to change our laws in line with the accord, but are free to change them again at anytime?
- dragonwriter 5y ago
  > What are the practical differences between the two? Historically (pre-17th Amendment), the treaty power allows government-to-government agreements without the directly elected representatives of the people intervening to screw things up; their interference was feared to complicate diplomacy. But other than procedural differences, there aren't any practical differences, a treaty ratified by the Senate and a congressional-executive agreement passed by both Houses and the President, and normal legislation (with the President or over his veto), or, I guess, a hypothetical sole-congressional agreement [0] all have exactly the same legal force. > Is it that we aren't making any binding agreement with sovereign countries like we would when ratifying a treaty, instead we just happen to change our laws in line with the accord, but are free to change them again at anytime? The Supreme Court has found (and the fact that Congress in Art. I, Sec. 8, is given the power to define what is and isn't an offense against the law of nations suggests that this is correct) that Congress is free to amend ratified treaties for the purpose of domestic law by normal legislation, so that's not a difference (though it is definitely also true of congressional-executive agreements, which are normal legislation.) [0] where Congress takes a text, say, adopted by an international conference and adopts it over a Presidential veto; active negotiation of such an agreement might have some other legal issues.
fsckboy 5y ago
you are using a rhetorical sleight of hand when you say that (paraphrasal) "with strong Senate support the President can bypass the House, but otherwise a treaty can be considered normal simple majority legislation." That's not the way the Constitution is written, and treaties are not normal legislation. I'm not saying that "you're wrong", I'm convinced that it's being done, but imho SCOTUS should overturn this style of treaty.
- dragonwriter 5y ago
  > I'm not saying that "you're wrong", I'm convinced that it's being done, but imho SCOTUS should overturn this style of treaty. SCOTUS should overturn the Congress exercising using the legislative process to do things expressly within its legislative powers on...what basis? OTOH, congressional-executive agreements aren't new, and have been litigated quite a bit. Heck, SCOTUS has even held a particular one to be included in the delegation by Congress of jurisdiction over treaty interpretation cases to the Courts of Appeal over a century ago. B. Altman & Co. v. United States, 224 U.S. 583 (1912).