THE PRESIDENT’S POWER TO NEGOTIATE TREATIES:A Clear and Present Danger
By Attorney Jonathan Emord
September 27, 2010
Lurking beneath the surface of public debate over the constitutionality of the President’s agenda is concern that Obama and the Democrat controlled Senate might commit the United States to a treaty that would violate Americans’ economic and civil liberties. If, for example, the President were to enter into a treaty, confirmed by two-thirds of the Senate, committing the United States to harmonize the domestic regulation of foods and dietary supplements with the restrictive regime imposed on Europe by adoption of European Food Safety Authority recommendations, would that treaty be constitutional? What if through an act of Congress, the Legislative branch gave the Executive authority to negotiate such a treaty, would it then be constitutional?
In Federalist No. 75, Alexander Hamilton presciently observed that if the President were vested with power not only to negotiate but also to confirm treaties committing the United States, there existed a distinct risk that he would sacrifice Americans’ liberties for personal gain. Consistent with this defense of the Constitution, Article II, Section 2 vests in the President the power to negotiate treaties but reserves to a vote of two-thirds of those present in the Senate the power to adopt a treaty. In a passage that rings true today not only for the President but also for members of Congress and appointed heads of federal agencies, Hamilton wrote:
[A] man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to interest, which it would require superlative virtue to withstand.
Corruption of this kind is commonplace in the nation’s Capitol. To feather their own nests, heads of federal agencies, members of Congress, and even Presidents of the United States enter into deals that give favored industries anti-competitive benefits—either through the passage of regulations or laws that create barriers to entry or through the adoption of licensing regimes that exclude competitors from the right to conduct business. In exchange, a grateful industry often gives those responsible in government a major payback in the form of lucrative post-government employment.