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Proposed Agreements with Iran and Trans Pacific Partnership are Treaties that Require Two-Third's Senate Approval

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Proposed Agreements with Iran and Trans Pacific Partners are Treaties that Require Two-Thirds Senate Approval


By Joel D. Joseph, Chairman, Made in the USA Foundation

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Whether you agree or disagree with Israeli Prime Minister Netanyahu about an agreement with Iran, the President of the United States is required to submit the proposed treaty to the United States Senate for approval under the Constitution. Similarly, President Obama's proposed Trans Pacific Partnership with 13 other nations is a treaty under the Constitution requiring two-thirds Senate approval to be the law of the land.

The Constitution provides in Article II, Section 2, Clause 2: "He (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." The first question is whether these two Presidential proposals are treaties? There are international agreements other than treaties that the Supreme Court has allowed. However, these lesser agreements were entered into under the President's power to receive ambassadors. Neither of the President's proposed international agreements involve his power to receive ambassadors, nor any other presidential power other than the treaty clause and thus cannot be implemented without Senate approval.

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Are These Agreements Treaties?

Black's Law Dictionary defines a treaty as "an agreement between two or more independent states." By independent states the dictionary means nations. It is hard to imagine agreements that are more important than a nuclear disarmament agreement with Iran and a trade agreement with 13 nations. If the treaty clause has any meaning left it must be applied to these agreements because they will outlive President Obama's term of office and will affect the nation for decades to come. These are not simple agreements that the President can enter into by himself, or with a simple majority in Congress.

The Nuclear Nonproliferation Treaty was negotiated in 1968 and approved by two-thirds of the U.S. Senate the following year. Since that time, agreements seeking to control nuclear weapons with other nations have been considered treaties by the United States since this time. Because the proposed agreement with Iran involves nuclear arms control, it is certainly a treaty.

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Agreements involving international trade are no less treaties than those involving war and peace. The first U.S. trade agreement in a treaty was the Jay Treaty, or more formally, The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America entered into in 1795 with two-thirds Senate approval. Since this was enacted soon after the Constitution was approved, the treaty clause was fresh in the country's mind. Two hundred and thirty years later, however, we have ignored the treaty clause.

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Chairman, Made in the USA Foundation, economist and lawyer, author of ten books and hundreds of articles.

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