Our constitution declares a treaty to be the law of the land... regarded..equivalent to an act of th

[stevenleser]

http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:


"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

[vaberella]

1. Thanks SL for providing this information. n/t

[guruoo]

2. k&r for the truth

Two weeks ago they were sayin:
'Obama failing to stop gaddafi's massacre of innocent citizens that were only seeking freedom and Democracy'
Now it's:
Obama conspires with PNAC to send innocent American kids to kill innocent Libyan babies for oil!

[Wait Wut]

4. My doctor said I have whiplash...

...and suggested I sue DU for pain and suffering.

Yes, I'm lying. I don't have a doctor.

[damntexdem]

16. Then DU should sue your doctor for pain and suffering.

;-)

[FloriTexan]

22. Obama said no boots on the ground...

I'm waiting for them to spin the ejected fighter pilots as boots on the ground.

[14thColony]

45. You need wait no longer then

It's already started:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4782979

[PurityOfEssence]

61. The War Powers Act is worded "introduction of U.S. Armed Forces into Hostilities"

Boots, schmoots; it could be purely naval and it would still be a violation.

[MNBrewer]

67. But...

Are they really "hostilities" or is it, as was mentioned on The Daily Show, an exercise in "re-freedoming"?

:sarcasm:

[namahage]

3. K&R

for all the good it does.

But I guess Kucinich's concern trolling is more interesting than reading text about the Constitution.

[Prism]

5. Treaties do not supercede the U.S. Constitution

They are put on equal footing with laws passed by Congress. What you and others seem to be arguing is that a treaty can functionally dissolve entire Articles of the U.S. Constitution without so much as a required vote by the states.

A treaty cannot undo our basic system of checks and balances as enshrined in constitutional law.

I cannot believe I am actually reading arguments that the constitutional duties of Congress are no longer required because the United States signed a treaty. It isn't merely aconstitutional, it's dangerous and, yes, unAmerican.

If you'd like to remove Congress's powers as a check on executive war-making ability, go to the states and ask for it.

You're actually arguing that the UN can now order America into war without Congressional input.

This is flat out insane. If Republicans were attempting to justify the removal of Congressional checks in the name of an imperial Presidency making unilateral war, Democrats would be going absolutely apeshit.

Is there truly nothing President Obama can do that will not be justified, Constitution and our entire system of government be damned?

It appears so.

[JoePhilly]

6. You might want to actually READ the full source the OP links to.

It was written in 2006, long before the current issue became an issue. And it actually deals with many of the complaints you raise.

If you care to read it.

[stevenleser]

7. And it quotes liberally from Supreme Court justices and decisions. n/t

[guruoo]

8. But, but, that would ruin everything! nt

[Prism]

10. I read it in its entirety.

It does not address my objection. At all.

You do realize merely throwing linked text at the wall and hoping some of it will stick isn't actually synonymous with making an argument, yes?

[JoePhilly]

11. It absolutely does.

You claim that the Congress ends up with NO POWER.

The content at that link disputes that entirely. The article describes how these things tend to leap frog each other.

In other words, a Treaty might jump to the front and become the "law of the land". And then later, Congress can pass legislation that jumps out in front of the treaty. After which, a new treaty might leap past the law from congress.

You claim that a treaty, as described by the OP, removes all checks and balances. And the article CLEARLY shows that is not true.

[Prism]

13. What little the article does imply refutes you entirely

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by the Secretary of State, it is said, in summary of the practice and reasoning from the text of the Constitution, that the limitations on the treaty power which necessitate legislative implementation may “be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers....”304 The same thought has been expressed in Congress305 and by commentators.306 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the courts.

Emphasis mine.

Again from the article:

What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers.

Emphasis also mine.

What the article addresses are laws and treaties on the level of statutes - not delegated powers. The article is discussing treaty powers on par with Acts of Congress - not on par with delegated powers of the Constitution.

The Congress is delegated, by the Constitution, the power to weigh in on the war-making abilities of the President. No treaty - and certainly no international entity - can replace or supersede the constitutionally delegated power of Congress on matters of war.

Period.

[Cameron27]

20. Thank you

[JoePhilly]

36. You just proved my point.

Your initial response says that "This is flat out insane. If Republicans were attempting to justify the removal of Congressional checks in the name of an imperial Presidency making unilateral war, Democrats would be going absolutely apeshit."

As the quotes you now reference indicate ... treaties do not remove those checks and balances. And no one is proposing that such checks and balances be removed.

Congress has every right to act. But until they do, the relevant treaty is the law of the land.

[Prism]

37. "Treaties do not remove those checks and balances." Correct, which is why this is wrong.

A treaty cannot substitute for the U.S. Congress on matters of war. The War Powers Resolution of 1973 specifically forbids it.

[JoePhilly]

39. No.

Again, if you read that source closely, a Treaty becomes the law of the land, until an specific act of Congress refutes it.

And that is the point. Congressional power remains, and they can still use it. Unitl then, the relevant treaty is the law.

And the checks and balances remain in place.

[Prism]

41. Even if that were true, you'd still be wrong

Because the War Powers Resolution, an Act of Congress adopted after the UN Charter, specifically refutes the idea that treaties can be used as authorization for war.

[JoePhilly]

42. We are not at war.

[Prism]

43. Of course not. Except for the missiles and things.

But that's not a war. It's a Peace Rain.

[PurityOfEssence]

76. Congress makes the definition, as empowered by the Constitution, and yes, it's "war"

Recap: Article 1, Section 8, the "necessary and proper" clause, grants Congress the right to pass legislation to determine what the various powers are that are granted in the Constitution, and TO DO SO FOR ALL THREE BRANCHES OF THE GOVERNMENT.

That's why Congress passed the War Powers Act: to specify and clarify all the grey areas and to make definitions clear. In the War Powers Act, they define war as introduction of Armed Forces "into hostilities" or situations where they're imminent. That's war. These are hostilities. There's literally no quibble room

Further, the UN Participation Act doesn't even bother to define "war", it flatly states that the President is free to make "special agreements" about force involvement with the Security Council, but that those agreements have to be Authorized by act of Congress. Sure, upon invocation of Article 42, the President may commence combat operations, but ONLY if he's already gotten Congress' Authorization of the special agreement by which he/she does so.

The UN Charter agrees, too, and points out in Article 43 (which defines those special agreements) that the member nations have to run those agreements through their Constitutional process, if necessary.

It's ironclad and VERY unmistakable. They did a good job in 1973; no wonder Nixon vetoed it.

[Hosnon]

77. This repeated claim needs supporting authority.

Preferably a Supreme Court case or something from the Federalist Papers. I'd even take a law review article.

[PurityOfEssence]

60. Yes, but a treaty cannot compel or allow a President to do something the Constitution doesn't allow

A Treaty is the law of the land, but actions called for in it need to be performed Constitutionally.

It's really, really consistent, settled law, and even though we can't act.

[MNBrewer]

21. Treaties are on a par with legislation, and do not usurp Constitutional powers and duties

"In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers."

[stevenleser]

32. AGAIN, no one is saying that they do. n/t

[JoePhilly]

40. We are fighting the same false strawman you mention in a related OP.

[stevenleser]

47. It's beyond bizarre that they dont get it. Its simple. Treaties are specified in the Constitution.

Since they are specified, they aren't 'overriding' the Consitution.

Either these folks are incapable of basic logic, or they are being argumentative for its own sake to avoid acknowledging that we are right.

[JoePhilly]

56. " ... argumentative for its own sake" ... Obama did it, it must eb bad.

[Vattel]

57. you really don't get it, do you?

Take a Constitutional law class or something.

[quaker bill]

55. A treaty is only valid when approved by congress

Treaties have to be ratified by congress. This is also in the Constitution.... A ratified treaty is an act of congress.

[BklnDem75]

9. That makes sense...

What good is a treaty if it's something that can't be taken seriously among countries?

[former9thward]

12. The UN resolution, if that is what you are referring to, is being

ignored by most countries. Russia, China, Germany are just a few of the vast majority of countries which are not taking any part in this military adventure.

[BklnDem75]

14. They abstained...

But even they've admitted something needed to be done. They did not vote against the action.

[former9thward]

17. The are not participating in the military action.

Even the Arab League is not participating. The only Arab country to offer anything was Qatar. The rest of them are sitting it out. Not exactly "an international community".

[BklnDem75]

24. It matters not. There were zero objections

Giving one's blessings does not mean they need to participate.

[former9thward]

27. The no longer "bless" it

Arab League: http://www.washingtonpost.com/world/arab-league-condemns-broad-bombing-campaign-in-libya/2011/03/20/AB1pSg1_story.html. Russia: http://www.bangkokpost.com/breakingnews/227700/russia-slams-indiscriminate-use-of-force China: http://www.rttnews.com/Content/GeneralNews.aspx?Id=1581048&SM=1

[BklnDem75]

38. Keep up with the news...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4780560

Arab League chief Amr Moussa said on Monday that he respected a U.N. resolution that authorized military action on Libya, after earlier comments suggested he was concerned by actions taken by Western powers.

"The Arab League position on Libya was decisive and from first moment we froze membership of Libya ... Then we asked the United Nations to implement a no-fly zone and we respect the U.N. resolution and there is no conflict with it," he said.

"It is for protecting civilians and that is what we care about," he told a joint news conference with U.N. Secretary-General Ban Ki-moon in Cairo. "We will continue to work on the protection of civilians. We urge everybody to take this into consideration in any military action," Moussa said.


And honestly, do you think we should ignore 10 countries that actually bothered to vote to satisfy the two that didn't?

[former9thward]

44. Maybe you should keep up with the news.

There were five countries that abstained in the vote -- Countries that have a majority of the world's population. I wonder what the vote would have been if the General Assembly with 192 countries had been allowed to vote.

[BklnDem75]

46. I'm sure there's a point in there somewhere...

[former9thward]

50. If you get past knee jerk apologies I'm sure you will find it.

[BklnDem75]

53. I support the action

So I'm afraid you're just gonna have to spell it out.

[Hosnon]

51. Well, to be clear (and fair), the U.N. Charter specifically

states that all members recognize the authority of the Security Council.

[BklnDem75]

54. Which consists of the 15 members that voted 10-0-5

Article 27

1. Each member of the Security Council shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.


Note: Not a response to you, just backing your post with more info.

[PurityOfEssence]

15. That doesn't give it precedence over Federal Law

"this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty," (USSC, Reid v. Covert, 1957)

The UN Says we allow the nations to attack, but it doesn't REQUIRE them to. Even if it did, we can't without authorization. The War Powers Act clearly states that the President can ONLY send troops when Congress Declares War or Authorizes Action, or when we are attacked. Even in the latter situation, he/she needs to CONSULT with Congress, not merely inform them.

In this situation, where we weren't attacked, he needs Authorization.

The flip side to your concept of the value of the strength of treaties is that they must have safeguards to allow the various states to control their own destinies. This is the reactionaries' big and false claim about the United Nations: that it seeks to overrule our law. It can't, and that was very carefully written into the UN Participation Act of 1945, SPECIFICALLY as it applies to war.

[Prism]

18. Thank you

I can't believe this mess has resulted in arguments (from Democrats!) that mere treaty can actually nullify or make redundant The United States Congress on matters of war.

At this point, I can only stare in awe.

[stevenleser]

19. Again, that is a straw man. It is the Constitution that gives treaties these broad powers. n/t

[MNBrewer]

23. powers that cannot infringe on the Constitution

[stevenleser]

25. Since it is the Constitution that sets up the powers, they don't. n/t

[MNBrewer]

28. Why do you persist in mischaracterizing the relationship between the Constitution and treaties?

[stevenleser]

29. LOL, says the person who hasnt posted a single correct thing about that relationship yet.

Once AGAIN

http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:


"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

I love the B.O.G. and all BOGgers

[MNBrewer]

31. what did I post that is not correct?

[Name removed]

33. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[Vattel]

58. Nothing

but apparently the point that when treaties and the Constitution conflict the latter overrides the former is too difficult to grasp for some. Or maybe the problem is that they really believe that what we are doing in Libya doesn't count as war under the Constitution, and so doesn't need Congressional authorization. The Founders would have laughed at that suggestion, but I suppose we can always change the meaning of Consitution if we don't like what it says. A third possibility is that they buy into John Yoo's laughable position that the President doesn't need Congressional authorization to make war. If war is declared against us, the President arguably needs no Congressional authorization to wage war, but to create war, he does.

[phleshdef]

62. There is no conflict. in this situation.

According to the constitution, Congress has to approve acts of war. Congress approved the UN Charter. Therefore, Congress approved the US answering the call of the UN Security Council ALREADY. Congress already approved it, period.

[Hosnon]

64. Congress did not approve the U.N. Charter.

2/3 of the Senate did.

As the full Congress alone has the authority to declare war, the actions of merely 2/3 of the Senate are not sufficient.

[phleshdef]

65. The United Nations Participation Act of 1945 was passed through both houses of Congress.

But keep trying.

[Hosnon]

66. Trying what? The U.N. Participation Act is a statute, passed by Congress.

The U.N. Charter is a treaty, ratified by 2/3 of the Senate.

Congress (i.e., the House and the Senate) did not ratify the U.N. Charter. It is therefore incorrect to impute that ratification to Congress (I'm referring specifically to your post #62).

[phleshdef]

68. The UN participation act clarifies the grounds for acting in accordance with articles of the charter

You can't separate the 2 in this argument. The participation act clarifies that "The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter" which spells out taking measures to maintain or restore international peace and security. Congress approved this, in both houses, several decades ago.

[Hosnon]

69. You can if you're discussing the process by which they became law.

One is a statute; one is a treaty. But my reason for responding was this statement:

Congress approved the UN Charter. Therefore, Congress approved the US answering the call of the UN Security Council ALREADY. Congress already approved it, period.

(Emphasis added.) That is incorrect. Congress did not approve the U.N. Charter; therefore, your conclusion does not follow.

Your larger point about whether the U.N. Participation Act acts to authorize war when approved by the U.N. Security Counsel is a separate issue. I'm currently discussing that with SanchoPanza here.

[phleshdef]

70. Congress approved the clarifications to the charter, it makes no difference.

You are attempting to nitpick the way I characterized it in order to avoid my point. That doesn't work and it changes my point not in the slightest.

I'm not even sure you are correct that there was no vote in the House on the actual charter itself. I've found no information on it one way or the other.

Regardless, by approving the clarifications to the charter, Congress inherently went along with the charter as well. You can't exactly approve amendments or clarifications to something without recognizing its legality in the first place.

In either event, Congress approved the President acting on the call of the UN Security Council. This is why we've participated in no fly zone operations for AGES without going to Congress first and its why no one brought up this stupid argument in any significant sense, until now, because its Barack Obama making the call.

[Hosnon]

71. First of all, I in no way avoided your point.

In fact, I specifically directed you to a discussion I'm having on that point. I'm sure you agree that it's much easier for you to follow the link and read the posts than it is for me to copy and paste the conversation in this thread (in which case you'd still have to read the posts).

Secondly, I disagree that it is nitpicking to point out fundamentals of constitutional law, particularly when a mistake regarding them is used as a premise for an argument. The House and Senate have the power, by a simple majority, to declare war. The Senate has the power, by a 2/3 majority, to ratify treaties. The U.N. Charter is a treaty, ratified by a 2/3 majority of the Senate. The House did not participate in the constitutional process that made the U.N. Charter the "supreme law of the land". Because it is inaccurate to assert that the House and the Senate ratified the U.N. Charter, imputing the actual ratification of the U.N. Charter to the House to support an argument that the House surrendered its power to declare war is unjustified (which is what you did in your post).

The House very well may have endorsed the U.N. Charter (and its ratification) by subsequent legislation, but that does not change the fact that the House did not participate in the process that made the U.N. Charter part of our law.

[phleshdef]

72. Yes, you did avoid it by attempting to dilute the topic.

Getting back to the basics of my point, Congress did in fact approve the ability for the US to answer the call of the UN Security Council in various manners, such as participating in something like a no-fly zone for the sake of international peace. They already approved this. I mentioned the charter because it was easier than going into the fact that it was a legislation regarding the charter, and not the charter itself, that established the specifics of how the US heeds requests of the UN Security Council. Which of course was my mistake because some anal retentive poster like yourself was bound to beat me over the head with it in order to avoid my larger point.

The house may not have voted on the initial charter but they DID VOTE ON THE LEGISLATION THAT GIVES THE CHARTER THE POWER THAT IT HAS TO COMPEL THE US TO ACT WITH THE SECURITY COUNCIL WHEN CALLED TO DO SO. That means that the President does NOT have to go back and get another vote on it. It was already approved. Congress has approved our cooperation and participation with the UN in these kinds of things. It doesn't have to approve it every single time it comes up.

[Hosnon]

73. Look, it's not being anal retentive to point out that the House does not ratify treaties.

Had I made that mistake (or a similar one), I would have simply admitted so.

And it doesn't appear that you followed the link because it contains my counter-argument to what you keep repeating about Congress authorizing action pursuant to the Security Council. So, I'll copy and paste it for you here:

Hosnon: I'm not sure that's accurate.:

The full text of Section 6:

"The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.

The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements."

The "special agreement" is not the U.N. Charter itself; that would be circular because the "special agreement" must be "in accordance with article 43" of the U.N. Charter. If the "special agreement" is the U.N. Charter, the language of Section 6 is meaningless.

I read the section as authorizing the President to negotiate an agreement with the Security Council regarding our obligations pursuant to Article 43 of the U.N. Charter. Once that agreement is negotiated, it must then be approved by Congress. If approved, no further authorization from Congress is needed to perform under that agreement.

So - what is the agreement, and has Congress approved it?

SanchoPanza: That makes no sense.:

I think you're misreading the charter and the Participation Act. You do not need an Article 43 agreement to take an Article 42 action. Why would you need Congressional authorization for an Article 43 agreement but not an Article 42 action if the two reference the same process? Hell, why would you even need Article 42 in the first place?

They don't relate to the same thing. Article 43 references permanent contributions to a U.N. security force, something along the lines of a standing army of the Security Council. Article 42 references limited peacekeeping actions (should non-military interventions in Article 41 fail or prove insufficient). The Security Council has never invoked Article 43, yet has been using the more limited Article 42 in every multilateral intervention since Korea. This is, generally speaking, a good thing. Article 42 actions are narrow in scope and have specific goals, so there is less of a chance of "mission creep" or a military operation going beyond the scope of the resolution. People nervous about Libya becoming a quagmire should take comfort in this.

The reason why there is a distinction made in the Participation Act between Articles 42 and 43 is because, when it was ratified in 1947, Congress had no idea that the U.N. would come to rely exclusively on the more limited Article 42 actions. So they made it impossible for the President to submit troops to a permanent force without their approval. But in the tradition going all the way back to Jefferson's war against Tripoli, they left ad hoc engagements largely up to the executive under the rationalization that Congress could always curtail them after the fact. The War Powers Resolution of 1973 merely codified this unwritten rule into law and set specific time tables for such engagements (60 days plus an additional 30 for redeployment) as well as establishing reporting requirements that the President must fulfill.

Hosnon: Thanks for the thoughtful reply.:

Both provisions of Section 6 use the phrase "special agreement or agreements" (albeit slightly differently, which I think supports my interpretation). The first provision provides that the President is "authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution". The second provision provides that the the President "shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements. (I think we are in agreement that the phrase references the same concept.)

Under either Article 42 or 43, an agreement - approved by Congress - is necessary before any military force can be used. With regard to Libya, what is that agreement?

ETA: What about my post didn't make sense? I did not reference Article 42.

SanchoPanza: I still think you're misreading it.:

First, let's look at the full Articles of the UN Charter. I'll include Article 41, because it provides context for Article 42.

Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 43
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

Taken together, we have the following framework for Security Council actions: 1) The Security Council may pass resolutions calling for non-military interventions in sovereign states for the purpose of peacekeeping. 2) Should those non-military interventions fail, the Security Council has the ability to authorize military intervention by its member states. 3) The Security Council may make special agreements with member states to provide it (meaning the Security Council) with military forces and other assistance should the need arise, and such agreements will be made in accordance with the constitutional processes of member states.

What you're saying is that a "special agreement" under Article 43, which is what the U.N. Participation Act is referencing when it uses the words "special agreement," is necessary for an Article 42 action. I think what you're missing is that Article 42 actions are not taken by the Security Council itself, but that these actions are taken by member states, acting in concert, with authorization of the Security Council. The UN Participation Act says, in laymans terms, that if the President is committing U.S. forces to a military action under Article 42, then Congressional authorization is not needed unless such actions are undertaken using forces granted to the Security Council under Article 43.

And your post didn't make sense because no special agreement under Article 43 has ever been made, at least not with the United States, and that every single U.S. commitment to a military action authorized by the Security Council has been done explicitly and exclusively under article 42. Including Korea. In other words, if you're right, then not only has nearly every President since Truman violated the War Powers Clause, but Congress and the Judiciary has done absolutely nothing about it for over sixty years. Personally, I find that to be a bit of a stretch.

Hosnon: Let me clarify something regarding my position here:

I'm leaning towards the position that this military action is constitutional. However, that opinion is based on the broad military powers given the President by the Constitution. The President's authority to engage in military conflict is limited only by his inability to declare war. The minutes of the Constitutional Convention make it clear that the Founders replaced "make war" with "declare war" so as to give the President broad authority. And that is with regard to "war" - not every military action is a "war", and the President likely has unlimited authority to engage in non-war military actions. Therefore, I do not believe that "every President since Truman violated the War Powers Clause", regardless of compliance with any statute or treaty. (As a side note, the Supreme Court's inaction is deliberate; the Court has willingly bowed out of resolving this kind of issue pursuant to its Political Question Doctrine.)

As for the U.N. Charter, the U.N. Participation Act, and the War Powers Act: none of them can amend the Constitution, including the scope of the President's military power. Absent an amendment to the Constitution, the President's military power remains undiminished.

The large caveat here is that Congress always has the authority to (1) defund the military action and (2) impeach the President. That is why, to me, discussing compliance with any and all treaties and statutes is important. The more consensus the President can achieve, the less likely Congress is to exercise its options to stop him.

He's clearly complied with the U.N. Charter as this military action is pursuant to a resolution from the Security Council. As for the War Powers Act, he's sent the necessary notice (including the "I think I don't have to do this" language). Congress will likely acquiesce, if perhaps only by silence; however, it will affirmatively condone the action if it does to take any steps to defund the military action. And if Congress does not authorize the military action but the President continues doing what he is doing, Congress' only recourse is one or both of the two options listed above, because the Supreme Court will not resolve the issue. The Supreme Court is not the only arbiter of constitutionality, especially when it has declined to assume that role. Any issues of constitutionality will be resolved by other means, e.g., impeachment.

Lastly, I'm not convinced that my interpretation of the "special agreement" language is spot on, and I'm not sure yours is either. They both seem to be reasonable interpretations of the text. The only authority I came across was a report prepared for Congress by Richard F. Grimmett, a Specialist in International Security with the Congressional Research Service at the Library of Congress. According to his report:

For armed actions under Articles 42 and 43 of the United Nations Charter, Section 6 of the U.N. Participation Act authorizes the President to negotiate special agreements with the Security Council “which shall be subject to the approval of the Congress by appropriate Act or joint resolution,” providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the agreements have been concluded, further congressional authorization is not necessary, but no such agreements have been concluded.

I haven't read the entire report but his interpretation here agrees with mine. But again, simply because the U.N. Participation Act has not been complied with does not mean, in my opinion, that this military action is unconstitutional. The constitutionality of this is wholly independent of these treaties and statutes. Compliance with them only serves to aid the President politically, which in turn will decrease the chances the military action will be defunded and he will be impeached.

In sum (for clarity's sake), this military action is probably constitutional pursuant to the President's military powers bestowed upon the office by the Constitution. However, Congress holds the purse strings and can impeach the President. Therefore, it is wise to build as large a consensus as possible by complying with treaties and statutes on the subject. But whether he has complied is not ultimately an issue of constitutionality (unless of course, it leads to his impeachment and removal, in which case it is fair to say that his actions were unconstitutional).

[phleshdef]

74. At the end of the day, the way I & apparently this other poster interpret...

...the relationship between the Constitution, the UN Charter and the Participation Act is consistent with the way the process has been treated by past precedent. If the way President Obama engaged participation in this no fly zone against Libya was in violation of the Constitution, then multiple Presidents over the past 70 years all violated it by many uses of military power that were ordered in similar fashions. Thats really what this comes down to and is why I believe my interpretation to be correct. Numerous Congresses, led by one party or another, led by different ideological incarnations of both parties, have given this kind of leverage to the President when it has came to multilateral UN actions. And from what I'm reading, the basis for such leverage is there, in law, and still entirely consistent with the Constitution.

[Hosnon]

75. You obviously didn't read what I wrote.

If you did, you'd know that I think this military action, and the military actions of Presidents over the past 70 years, were probably constitutional.

[PurityOfEssence]

79. Completely incorrect: the President may act on a Article 42 call only if he already has approval

In fairness to you, it's not that clearly written, but the gist is this: upon a call to arms from Article 42, the President can act without approval of Congress pursuant to such special agreement that is already in effect and that has been Authorized by Congress

The American Journal of International Law does it better:

� "Constitutional processes" is defined in section 6 of the UN Participation Act of 1945. Without the slightest ambiguity, this statute requires that the agreements "shall be subject to the approval of the Congress by appropriate Act or joint resolution." Statutory language could not be clearer. The President must seek congressional approval in advance. Two qualifications are included in section 6:

��� The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That . . . nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.



� The first qualification states that, once the President receives the approval of Congress for a special agreement, he does not need its subsequent approval to provide military assistance under Article 42 (pursuant to which the Security Council determines that peaceful means are inadequate and military action is necessary). Congressional approval is needed for the special agreement, not for the subsequent implementation of that agreement. The second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements entered into by the President.



� Thus, the qualifications do not eliminate the need for congressional approval. Presidents may commit armed forces to the United Nations only after Congress gives its explicit consent. That point is crucial. The League of Nations Covenant foundered precisely on whether congressional approval was needed before using *30 armed force. The framers of the UN Charter knew that history and consciously included protections of congressional prerogatives.



http://www.law.berkeley.edu/faculty/yooj/courses/forrel/reserve/fisher.htm

[guruoo]

34. Congress granted Presidents 60 days authority (War Powers Resolution)

'The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto.'

http://en.wikipedia.org/wiki/War_Powers_Resolution

[stevenleser]

30. AGAIN with the strawman argument. No one is saying that treaties supersede the Constitution

NO ONE has said that. NO ONE. If you disagree, show me a link to someone who has.

My contention, and the contention of those who agree with me is that the Constitution ITSELF has set up treaties to have these broad powers.

http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:


"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

I love the B.O.G. and all BOGgers

[RaleighNCDUer]

35. "...these broad powers..."

Please, clearly and explicitly explain what these powers are that you are talking about.

Put it in you own words, not some cut-n-paste crap. Prove you understand what you are talking about.

[stevenleser]

48. How many times do I have to do this and in how many OPs and threads?

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=634307&mesg_id=636135

[RaleighNCDUer]

49. Ok. I get it. You have no idea what you are talking about.

That's why you cut and paste crap - you cannot interpret in your own words because you don't understand it.

Thanks.

[PurityOfEssence]

52. Beats hell out of me; apparently you can be endlessly wrong.

Feel free to stop any time.

[craigmatic]

26. Treaties equal federal law but are slightly weaker because they lack enforcement power because

they rely on 2 or more countries to act in good faith.

[mmonk]

59. They become law of the land but do not supersede Constitutional restraints.

They do not devour the Constitution and become a de facto replacement.

[phleshdef]

63. And its completely dishonest to suggest anyone said they did.

The fact remains that Congress already approved answering the calls of the UN Security Council when they approved the charter some decades ago. The constitution says such things have to be approved by Congress yes. And Congress approved it in this situation, already. They don't have to approve each and every action. The approval of a charter was a blanket blessing by Congress to act with the UN Security Council.

[PurityOfEssence]

78. No; the President must get Congressional Authorization for all special agreements regarding forces

Congress' UN Participation Act of 1945 SPECIFICALLY states that we are NOT ceding this authority. That's the very law that governs how we play a part in the United Nations.

Section 6 allows the President to negotiate any agreement, but the Congress must AUTHORIZE it. If he gets this authorization, he may make forces available to a UN Article 42 call-up, but ONLY PURSUANT TO SUCH AN AGREEMENT. If he doesn't have one in place when the Bat Searchlight sends up a 42 call, he has to get it before sending in the forces. It goes on to further state that if the President does so, it is not construed to be permission to do anything beyond the scope of a special agreement that CONGRESS HAS AUTHORIZED.

He's also in violation of the War Powers Act.