(c) 1998 by Sandy Shaw & Durk Pearson
How Much American Sovereignty Can the President Give Away?
a Constitutional Perspective
by Sandy Shaw
President Clinton is giving away a frightening amount of United States sovereignty (that is, control over internal U.S. affairs) to the United Nations in the form of treaties, memoranda of understanding, executive orders, declarations, and initiatives. (Exactly why he is doing this is another subject; my guess is that Clinton has no plans to retire from politics after his two terms as President of the United States, but intends to go on to become the head of the United Nations--eg., President of the World or, perhaps (if U.N. rules prevent him from becoming its head) U.S. Representative to the United Nations Security Council.)
A treaty is not an alternative method of amending the Constitution. The President may propose a treaty "provided two thirds of the Senators present concur" (Art. II Sec. II(2)). A Constitutional amendment must be proposed by two thirds of both houses of Congress and must then be ratified by three quarters of the State legislatures (Art. V). Presidential "treaties" by agreement, declarations, memoranda of understanding, executive orders, and initiatives, in which the Senate is entirely bypassed, are not constitutional and are thus devoid of power to bind the United States. The critical question is: Who has standing to challenge Clinton's illegitimate quasi-treaties in a court of law?
It is interesting to note (as reported in the July 20-26 1998 Washington Times) that the United Steelworkers of America, a 750,000 member union and the Made in USA Foundation, a 60,000 member nonprofit group that promotes U.S.-made trade goods, have filed suit arguing that the North American Free Trade Agreement is unconstitutional because it never received a two-thirds vote of support of the U.S. Senate.
One legal argument on treaties is, of course, that a treaty cannot go beyond the bounds of the Constitution by, for example, giving away Constitutionally protected rights. As the U.S. Supreme Court ruled in Geofroy v. Riggs (1890): "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the terroritory of the latter, without its consent." In 1957 in Reid v. Covert, the Court ruled that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." Moreover, the Court continued, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."
Surprisingly, I found another potentially useful argument in a recent issue of the National Law Journal.
An analysis published in the March 17, 1997 National Law Journal (NLJ), Martin, Farber, Chajet "Determination on Silica May Expose Flaw in Rule," offers a Constitutional argument to oppose standards (such as carbon dioxide emissions) supposedly binding upon the United States that are developed under the auspices of the United Nations.
The case of interest concerns an OSHA rule in which OSHA incorporated certain standards and findings (on silica--ordinary sand--as a carcinogen) that were developed by the International Agency for Research on Cancer (IARC). An important constitutional issue was raised in the article concerning the OSHA rule: whether an Executive agency which has received its rulemaking authority as a result of delegation by Congressional statute can re-delegate that authority to a third party. The Constitution states in Article I Section I: "All legislative powers herein granted shall be vested in a Congress of the United States..."
As the NLJ article noted: "...the agency [OSHA] has taken what is concededly a broad delegation of authority and effectively redelegated that authority to an extragovernmental entity." "Though OSHA may well have broad authority to decide issues under the OSH Act, it does not follow that the agency can pass that same authority to another entity."
The issue arose, though indirectly, in the context of a 1992 decision by the 11th U.S. Circuit Court of Appeals (AFL-CIO v. Occupational Safety and Health Administration 965 F.2d 962, 984 (11th Cir. 1992)), in which the Court considered the propriety of OSHA's incorporation into its rules of the standards and findings of an outside organization. In that case, the court vacated a "generic" OSHA rulemaking to set permissible exposure limits for 428 substances identified by the agency as air contaminants. "The court found that while OSHA may 'rely on the recommendations and documentation' of outside organizations (such as the "threshold limit values" established by the American Conference of Governmental Industrial Hygienists), the outside body's findings 'did not relieve OSHA of the responsibility for making detailed findings, with adequate explanations for all statutory criteria.'"
The NLJ article then goes on to say "The inevitable debate over the marriage of OSHA regulations and the IARC silica findings may also spill over into the constitutional realm. Necessarily, Congress must delegate to the executive branch substantial, but not unbridled, authority to implement the policy judgments of the legislative branch. The undelegable essentials of the legislative function are the determination of the legislative policy and its formulation as a defined and binding rule of conduct."
Durk Pearson and I have argued in our recently filed 108 pages of public comments on an FDA rulemaking concerning ephedra alkaloid containing dietary supplements that the FDA cannot adopt the standards for dietary supplements set by the Canadian government because Canada is not bound by the U.S. Constitution, the U.S. Congress cannot delegate its Constitutional legislative powers to the Canadian government, the FDA cannot redelegate its rulemaking authority to the Canadian government, and the Canadian government is not bound by (among other things) the U.S. Constitution and procedural requirements of the FACA (open meeting law) or the APA (Administrative Procedures Act). All this applies as well to standards set by the United Nations. (Incidentally, the FDA's proposed rules on ephedra--considered a high priority by the FDA--were to go into effect in February 1998; however, the rules have not yet been issued.)
© Copyright 1999 by Durk Pearson & Sandy Shaw
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