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The Constitution Mandates “Advice Of The Senate”

President Joe Biden may have set a new record on January 20, 2021. Just before noon, he took the oath of office, swearing to support and defend the Constitution of the United States. But only a few hours later, he was in the Oval Office signing at least one Executive Order, and maybe more, that violates the constitutional oath he just swore to defend. And he did so by taking a page from President Barack Obama’s presidential handbook, using the art of wordsmithing to create a “Duck Test” exception.

If we see something we have trouble identifying, the Duck Test tells us to apply our powers of observation to study the subject’s habitual characteristics to discern what it is. Our powers of observation in such a situation is coined by the phrase, “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” But Obama’s presidential tenure carved out an exception to the Duck Test by adding to it, “unless I say otherwise.”

As president, Obama took just such an approach to circumvent Article II, Section 2, Clause 2 of the Constitution, known as the Treaty Clause. Our Founding Fathers’ intention in including this clause was to give the U.S. Senate a “partial agency” in the president’s foreign-relations policy. The clause specifically states, “The President…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…” Thus, the Constitution mandates that treaties must receive supermajority support in the Senate–i.e., 67 votes–to be implemented.

But Obama used wordsmithing to get two key international agreements, which were clearly treaties requiring the 67 vote mandate, by opting not to call them what they were. Why? As explained above, a treaty requires a supermajority Senate vote to pass but a non-treaty only requires a simple majority vote or incorporation into an executive order. Both the 2015 Joint Comprehensive Plan of Action (JCPOA)–i.e., the nuclear deal with Iran–was implemented using the former while the 2016 Paris Climate Accord used the latter.

As a treaty, no initial approval by the House of Representatives is required but, as a non-treaty, or what was dubbed a “political agreement,” it was. This is what came out at a House Foreign Affairs Committee hearing on JCPOA when Secretary of State John Kerry was asked by Representative Reid Ribble (R-Wisc) why the agreement was not a treaty subject to Senate supermajority ratification. Kerry’s blunt response, while effectively acknowledging it was a treaty in substance, was also most revealing about the Obama Administration’s effort to circumvent the Constitution. Kerry said, “I spent quite a few years ago trying to get a lot of treaties through the United States Senate. Frankly, it’s become physically impossible. That’s why. Because you can’t pass a treaty anymore. And it’s become impossible to, you know, schedule. It’s become impossible to pass. And I sat there leading the charge on the disabilities treaty, which fell to basically ideology and politics, so I think that’s the reason why.”

Making sure he understood Kerry’s response, Representative Lee Zeldin (R-N.Y.) sought confirmation of his answer: “This isn’t a treaty because it was difficult to pass. Is that — is that correct?” Backpedaling after realizing he had let the cat out of the bag about its treaty status, Kerry said,  “Well, it’s not — there are a lot of other reasons. We felt, we don’t have diplomatic relations with Iran. It’s very complicated with six other countries. It’s this very complicated process. So we thought that the easiest way to get something that had the leverage, had the accountability, could achieve our goal was through a political agreement. That’s what we have.”

While Biden campaigned on a commitment to return to JCPOA, it remains to be seen what approach he will take to do so. However, concerning the Paris Climate Accord, he wasted no time issuing an Executive Order stating the following:

“I, Joseph R. Biden, Jr., President of the United States, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept said Agreement and every article and clause thereof on behalf of the United States of America.”

Perhaps of the mindset “if it worked for Obama, it will work for me,” the new president needs to be challenged immediately on his effort to dictate by fiat that which the Constitution mandates should be done only with the advice and consent of the Senate. Failure to make that challenge now opens the door for Biden to rule by decree on other issues requiring Senate approval.

Over the past few years, we have seen our flag and National Anthem defiled by those refusing to recognize our exceptionalism. Has it come to the point now that those who take the oath of office, especially the president, defile the very document that provided the foundation upon which such exceptionalism was built without being challenged?