New START: Advise, Don't Consent
Our friend Andy McCarthy at NRO criticizes Republican Senators attempting to amend the New START Treaty for misunderstanding the Constitution. He cites my 2005 book, The Powers of War and Peace (a page-turner if there ever was one) as support for his argument that
The power to give advice is just that: to give advice. It is not license to change a treaty. If the Senate wants a treaty changed, it must withhold its consent.
I couldn't agree more with McCarthy's bottom line -- that Senators cannot actually make changes unilaterally to a treaty, because a treaty is made by the President. The power to make treaty rests in Article II of the Constitution, which establishes the Presidency and vests in it the executive power -- unlike legislation, it is the President who decides whether to negotiate treaties, it is the President who chooses at the end whether to make it, and it is the President who has an absolute veto over treaties. But this doesn't mean that the Senate cannot achieve an amendment in other ways. The President needs the Senate's advice and consent before he makes the treaty under Article II of the Constitution. Although the Senate cannot amend a treaty, it can give its conditional consent to a treaty with different terms. The Senate can say to the President: we will not agree to the treaty in its current form; but if you were to re-negotiate it with Russia to delete language on missile defense that we find objectionable, you have our advice and consent to that different text.
This is what happened with the United States's first treaty under the Constitution, the Jay Treaty of 1795 with Great Britain -- the Senate gave its advice and consent, on the condition that a specific provision be deleted. President Washington went back to Great Britain, which agreed to the removal of the offending clause. Republican Senators trying to "amend" New START to cure its problems are only following this time-honored practice, reaching back to the Washington administration.
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May '10
Re: New START: Advise, Don't Consent
He's pretty invested in rejecting it. I'm OK either way- reject New START, or fix it to remove any barriers (real or implied) to missile defense or to reconfiguration of delivery vehicles for conventional use. But don't ratify this turkiye (for you, Claire) in its present form.