Treaties, Sovereignty, and Binding Legal Authority

Joe Miller, a favorite Catallarchy commenter, sends some kind words and a response my way in the course of discussing War, the Constitution, and the UN Charter. While I'm just a humble biologist/economist, I do have more than a few opinions on war & the legality thereof, so I figured I'd return the favor of a response- and if I'm way off the mark, well, y'all know where the comments section is...

Regarding my comments in the thread for Sean's earlier post as to whether AsUMF[1] count as / are legally indistinguishable from declarations of war (they do, and are not distinguishable), Tom Anger popped in and brought up the supposed unconstitutionality of subordinating US warmaking power to the UN Security Council, as interpreted by many as forbidding any military action by the US that is either (a) not immediately defensive in nature or (b) sanctioned by the UN Security Council.

Joe's response is that Tom's objection is too quick:

Now if the Charter said that the U.S. must wage war when and only when the Security Council so directs, then I would be first in line to agree with Tom; that clearly would be unconstitutional. But the Charter doesn't require that at all. Rather, what the Charter says is that in any case other than immediate self-defense, the U.S. may declare war only with Security Council approval. The Charter, then, does not usurp Congress' role in declaring war. Rather, the Charter adds an additional requirement. For certain kinds of wars, Congress agrees to declare war only if the Security Council approves. On my reading, Congressional approval to wage war is still a necessary condition for a war's legality. It is not, however, always a sufficient condition for a war to count as legal.

Joe is, I believe, correct in his answer to Tom in that a particular congress of the US is not acting unconstitutionally to agree to prior limitations on its actions via treaty- the congress can set rules and legislate curbs on government activity whenever it desires (and when concordant with the Constitution; see below) and a treaty, by dint of the supremacy clause (if I am not mistaken), is on par with an act of congress. The congress can pass legislation saying "we promise not to raise taxes except if the president explicitly asks for it" and the act is not unconstitutional, even though taxation is an enumerated power of the constitution vested in congress. Where I believe Joe falls short is his suggestion/implication that by simple act of congress / treaty (which is an even lower standard of approval, which only takes one house to ratify- the Senate- albeit at a 2/3rds requirement), all future congresses can be bound and constitutional authority removed or amended.

The kto, kgo of binding authority

I think this is mistaken, for the same reasons I mentioned in my comment earlier. First, as we have seen with balanced budget legislation (i.e. Gramm-Rudman-Hollings), congress can simply change its mind and repeal the act or, more typically, simply ignore the provisions ad hoc and muddle along- the principle of "no parliament can bind a future parliament" holds in theory and in practice. More importantly, though, is that there is a heirarchy of legal authority in the US Federal government and (as Joe noted prior to the section I quoted) for any conflict between the constitution and an act of congress, the constitution prevails. And so as treaties are on par with acts of congress, the same trump-card relationship applies when a treaty provision conflicts with provisions of the US constitution.

Therefore since Article I, Section 8 of the Constitution vests the authority "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" (and admits to no qualification of that authority as in other sections where such and such power is established "under such regulations as the Congress shall make," or "as the Congress may from time to time ordain and establish," or at such place or places as the Congress may by law have directed." (Article III, I'm looking at you)), AND as the only means to trump the Constitution is by More Constitution (i.e. Amendments), it follows that no treaty, acceded to in the conventional manner as all other treaties to which the US is a signatory, can legally supercede warmaking authority granted by the Constitution.

In short, the US congress is not by law bound by a need to secure UN Security Council approval of AUMF resolutions or declarations of war, and congressional authorization is both necessary *and* sufficient for a war's legality (in US terms).

Belaboring the Point(s)

What I have provided is the basic statement of the grounds of my position/conclusion, but in the words of Keith Burgess-Jackson , it is perhaps not quite persuasive yet. To the Pedant Cave, then, Batmen!

Going to the root of the matter, from where does sovereignty come (in the US sense) and in whom is it kept? As a practical matter, by the terms of the peace between the United States (nee United Colonies) and the United Kingdom of Great Britain, sovereignty was transferred to the several states, all of whom acknowledged that sovereignty was at all times derived from and ultimately retained by the people constituting the several states. By delegation of this retained sovereignty, the people in turn:

in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, [did] ordain and establish [the] Constitution for the United States of America.

(of course, by way of the Articles of Confederation beforehand, but neveryoumind.) Ultimate authority is derived from and remains with the people of the United States, its next iteration is the Constitution, and the next iteration after that is the Congress and then Presidency. The low men on the totem pole do not have the authority to cede sovereignty because they have no sovereignty to cede. In order to proceed, as Joe does, with the operating assumption that the US is subordinate to the UN (by way of treaty) and thus the UN treaty's provisions on war are binding/dispositive, one would need to establish that what I have laid out is not, in fact, true, or that the people of the United States have somehow agreed to vest supreme authority in the UN rather than in the US, in the same matter in which the US Constitution was ratified. I do not believe such can be shown.

With that final bit of throat clearing, to the meat of Joe's interpretation- Joe suggests that the UN Charter puts an additional requirement on Congress' warmaking ability and, critically, forbids Congress from legally passing an AUMF/War Declaration absent a security council resolution or de facto state of war. Joe admits, too, that it is in some sense a surrender of sovereignty:

Yes, this is a subtle difference. And yes, many of you might well find it treading close to surrendering U.S. sovereignty to an international body. That's clearly Tom's position. I don't, however, think that it is actually unconstitutional. After all, isn't this just what treaties are supposed to do? Treaties are voluntary agreements to refrain from certain acts that would, in the absence of a treaty, be perfectly within a nation's right to carry out. So, for example, a treaty that bans the production of new nuclear weapons places certain limits on Congress. Specifically, it acts as a limitation on Congress' power to "raise and support armies." An action that Congress would have been free to do is now illegal. Still, it's hard to see why that would be unconstitutional. All treaties limit the power of the state. That is, all treaties take away the right to do certain things that the state otherwise would have had the Constitutional power to do. Tom's reading of the Constitutionality would, I think, simply have the effect of making all treaties unconstitutional. That reading, however, would pretty clearly run counter to the intent of the Framers.

The questions and points in order:

1. (re: surrendering US sovereignty to an international body) "isn't this just what treaties are supposed to do?" - No, I do not believe it is within the power of the US government to cede sovereignty , as the sovereign power is merely delegated to the US government and resident in fact within the people of the United States. Cession of sovereignty would require, as I have mentioned above, a referendum or process at least on par with the original Constitutional Convention, and not simply on a 2/3rds vote of the Senate. Treaties in this sense are like laws, which do not surrender sovereignty but are in fact instantiations of it.

2. "Treaties are voluntary agreements to refrain from certain acts that would, in the absence of a treaty, be perfectly within a nation's right to carry out." - emphasis added on voluntary. Again, it would seem to require more than a 2/3rds vote of the Senate to make legal the compulsion of "specific performance" of this magnitude; the US may break its treaties and suffer the reputational fallout as it happens, but at no point does a treaty decisively constrain ultimate congressional authority, which is derived from the Constitution.

3. "So, for example, a treaty that bans the production of new nuclear weapons places certain limits on Congress. Specifically, it acts as a limitation on Congress' power to 'raise and support armies.' An action that Congress would have been free to do is now illegal." - More precisely, so long as Congress does not amend the law, the Executive branch of the US Government (and state governments and private entities in the US, in accordance with the supremacy clause) is barred from producing new nuclear weapons. It may be pedantry, but Congress proposes, the executive disposes (or however the phrase goes)- Congress may yet abrogate or amend the treaty by law or by directing the executive / President to renegotiate the treaty; it is not barred from taking up the matter again except to the extent that it is concerned about the reputation and good name, faith, and standing of the US people and government; unlike say, in a case of an amendment to the Constitution forbidding the production of nuclear weapons, where Congress may not change policy or take up the matter at all, save through further amendment.

4. "All treaties limit the power of the state. That is, all treaties take away the right to do certain things that the state otherwise would have had the Constitutional power to do." - Not true, for the reasons laid out above. A more correct rephrasing would be: "All treaties limit the power of the state on the margin. That is, all treaties proximally take away the right constrain state policy choices that the state otherwise would have had the Constitutional power to do so choose." The reformulation is, of course, pretty flaccid, but at least its correct.

5. "Tom's reading of the Constitutionality would, I think, simply have the effect of making all treaties unconstitutional. That reading, however, would pretty clearly run counter to the intent of the Framers." - So would a reading that implied that the Constitution could be amended by 2/3rds vote of the Senate, as the Framers rather explicitly told us what their intent was in that regard:

Article V -
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; [...]

To bind congress, or more specifically to absolutely and in a binding fashion change the authority vested in Congress by the Constitution, one must amend the Constitution.

In long, the point again: since the Constitution is the ultimate source of authority in the US government, and as it trumps both law and treaty when there is conflict; and as the Constitution may not be amended by treaty but by manner prescribed by the Constitution; and as it would require an amendment to the Constitution to substantively modify Congress' warmaking authority; the UN treaty therefore is not a legal constraint upon the US Congress' warmaking authority, and Congressional AsUMF or declarations of war are necessary and sufficient for a US war's legality.

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fn1. AsUMF = Authorizations for the Use of Military Force.

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Wonderful!

Wonderful!

P.S. If you're not tired of

P.S. If you're not tired of the subject, see my exchanges with Joe at his blog, here.

Wow. It's going to take me a

Wow. It's going to take me a day or so to digest this and develop a response that is half this articulate. In the meantime, I'd just like to say that it's exactly this sort of outside perspective that I'd hoped to bring to my students this semester, so thanks to both you and Tom. I'll try to have something relevant soon...

Brian, I finally got around

Brian,

I finally got around to responding to your post. It's available here.