THE PRESIDENT'S POWER TO NEGOTIATE TREATIES
A Clear and Present Danger
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.
This corruption is particularly dangerous when it involves benefits coming from foreign governments or industry in exchange for treaty provisions. Hamilton warned (in reference to the President), “[a]n avaricious man might be tempted to betray the interests of the state to the acquisition of wealth” and “[a]n ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.”
In Senate Bill 510 (the FDA Food Safety Modernization Act), we find open-ended language that invites the Executive branch to negotiate agreements with foreign governments that would “harmonize” American laws protective of consumer access to dietary supplements and information concerning them with European laws that deny consumer access to dietary supplements and censor information concerning them. In Section 306 of the bill, the Secretary of HHS is charged with the duty of developing “a comprehensive plan” concerning foods exported to the United States. The plan is to include, among other things, “recommendations on whether and how to harmonize requirements under the Codex Alimentarius” and on “multilateral acceptance of laboratory methods and detection techniques.” Although the last clause of this statutory provision does provide that “nothing” in it “shall be construed to affect the regulation of dietary supplements under the Dietary Supplement Health and Education Act,” that Act has been construed by FDA to mean the opposite of what Congress intended in several key provisions (including the FDA’s refusal to permit scientific literature containing nutrient-disease associations from being sold together with the nutrients in question). Although the section could be construed to be limited to food exports, it could also be construed to invite international agreements that affect not only food exports but also domestic holding, sale, and distribution of foods.
The language of Section 306 of S. 510 is therefore dangerous. It requires the Executive branch to evaluate whether and how “to harmonize requirements” with those of the Codex Alimentarius which, concerning dietary supplements, favors the adoption of regulations by each member state, including the United States, that would impose upper limits on supplements under safety criteria that could make a supplement dose causing any biological effect deemed potentially unsafe and forbidden. This opens the door to expansion into this country of European standards that presume supplements unsafe and illegal unless proven with clinical trial data to be safe (even in the presence of decades of safe consumption). This also opens the door to expansion into this country of European standards that effectively deem any dietary supplement that (and related claims about a supplement that it) produces a physiological effect to be potentially harmful and, thus, unlawful.
The fail safe in Article II, Section 2 of the Constitution is the requirement that the President obtain the advice and consent of the Senate for all treaties and that no treaty be enacted without the consent of two thirds of the Senators present. In United States v. Curtiss-Wright Export Corp., the Supreme Court ruled that the President has sole negotiating power. “He alone negotiates,” wrote Justice Sutherland. “Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it.”
Thus, even without S. 510, the President could negotiate a treaty with the EU that would call for changes in U.S. regulation of dietary supplements to mirror those draconian restrictions present in the European Union, but the treaty could not become law in the U.S. without a vote of two-thirds of the Senators present. Without question Section 306 of S. 510 is an invitation for the Executive branch to negotiate an agreement on harmonization with Europe, albeit it does not expressly confirm Senate approval of the agreement. Arguably if two-thirds of the Senate vote in favor of S. 510, that could be manipulated, particularly by an Administration that has little respect for constitutional strictures that interfere with political efficiency, as Senate consent to harmonization without need for a formal separate passage of a treaty.
In this way, an administration that has already proven itself willing to violate the Constitution to achieve administrative ends (e.g., FDA censorship of health claims; a health care law that forces those who are not in “commerce” -- who have no health insurance and do not want it -- to buy that insurance) could alter domestic law without statutory amendment to the Food Drug and Cosmetic Act entirely through the treaty power; or could it?
The Supreme Court has not defined clearly the limits of the treaty-making power in Article II, Section 2 of the Constitution. Nevertheless, use of it to supplant laws of Congress regulating domestic products would be beyond the plain and intended meaning of the treaty making provision. The treaty making power cannot withstand serious constitutional inquiry if it is used to replace or circumvent the Article I enumerated powers of Congress or to invade the exercise of rights protected from the federal government by the Bill of Rights.
But would President Obama and Democratic leadership in the Senate abuse the treaty making power to achieve changes they desire to domestic law cognizant of the fact that it would be difficult to achieve through statutory means? I think they would. I see nothing in the words or actions of either that reveals a serious commitment to ensure that the government lives within the limits of the Constitution. None of them appears alarmed by the fact that almost all federal laws are made not by Congress but by the unelected bureaucracy, transforming the United States from a republic into a bureaucratic oligarchy. None appears to have been detained for even a millisecond before passing into law the health reform bill despite profound constitutional questions concerning the proper power of Congress under the Commerce Clause to require all Americans to buy health insurance if not presently covered. A cavalier disregard for constitutional limits is the order of the day. The political ends desired appear to justify unconstitutional means according to this way of thinking. Given that mindset, I would not be surprised in the least if the Obama Administration uses S. 510 as a basis for achieving through international agreement what could not pass in Congress—a harmonization to some as yet unknown degree of American law with EU law, imposing here draconian restrictions and censorship not politically possible by act of Congress.
Moreover, it is very difficult to challenge the President’s treaty making power. Issues related to standing to sue and nonjusticiable political questions make it difficult for potential plaintiffs to achieve judicial review of treaties, albeit when those treaties specifically address a company or group, standing has been found by the courts.
S. 510 thus potentially opens Pandora’s box. Section 306 of the bill invites mischief that could play itself out in extraconstitutional actions by this Administration that would limit U.S. access to and claims concerning dietary supplements. For reasons I have explained in a prior article (“More Government without Accountability—8-30-10), the entire bill should be scrapped.
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It is more evidence of feverish legislative activity by this Congress that seeks to supplant free enterprise with government fiat. It is odious to economic and civil liberty. Federal law already provides full power to the FDA to act against any party that sells an adulterated food or dietary supplement. To the extent that Congressmen and Senators want that goal achieved, the power already exists to achieve it and this bill is redundant and superfluous.
© 2010 Jonathan W. Emord - All Rights Reserved