June 12, 2002
Mr. FEINGOLD. Madam President, in 3 days' time, the United States will withdraw from the 1972 Anti-Ballistic Missile Treaty. And it appears that we will do so without a significant debate on this issue in the Senate. For 30 years, the ABM Treaty has been the foundation upon which our strategic relationship with Russia has rested. So I am troubled that this historic treaty is about to be dissolved without so much as a hearing or even any debate in this body. I also regret that the President made this important decision without consulting with the Senate. I find this troubling on both constitutional and policy grounds.
Article II, section 2 of the Constitution states that the President ``shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur. *.*.*'' The Constitution is silent on the process by which the United States can withdraw from a treaty, and the record of the Congress and the executive branch is mixed.
But, the intent of the Framers, as explained by Thomas Jefferson, is clear. In section 52 of Jefferson's Manual, he writes, ``Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation.'' And article II, section 3 of the Constitution states that the President shall ``take Care that the laws be faithfully executed. ..... ''
Jefferson continues, ``Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.'' It is worth noting that four signers of the Constitution were serving in the Congress when this first treaty termination occurred--by an act of Congress--in 1798, just 11 years after the Constitutional Convention.
So it is clear to me, as obviously it was to Thomas Jefferson, that Congress has a constitutional role to play in terminating treaties. If advice and consent of the Senate is required to enter into a treaty, this body should at a minimum be consulted on withdrawing from a treaty, and especially from a treaty of this magnitude, the termination of which could have lasting implications on the arms control and defense policy of this country. Today the ABM Treaty is the supreme law of the United States. The Senate should not stand by while the administration unilaterally abrogates this treaty.
I am concerned about the message that the Senate's inaction sends to this administration and future administrations about how seriously we will take our constitutional responsibilities with regard to the termination of treaties. As Jefferson noted, a treaty is equal with a law. A law cannot be declared to be repealed by the President alone. Only an act of Congress can repeal a law. Action by the Senate or the Congress should be required to terminate a treaty.
Momentarily, I will seek to bring up a resolution on this issue. The resolution is very simple. It just expresses the sense of the Senate that the approval of the Senate is required to terminate any treaty and states that the Senate shall determine the manner by which it gives its approval to such a proposed termination. Finally, the resolution disapproves of the withdrawal of the United States from the ABM Treaty.
Madam President, I ask unanimous consent that the Senate proceed to the consideration of S . Res . 282 , which I submitted earlier today, that the resolution be agreed to, and the motion to reconsider be laid upon the table without intervening action or debate.
The PRESIDING OFFICER. Is there objection?
Mr. HATCH. Madam President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. FEINGOLD. Madam President, I was not surprised, but I do regret that there has been an objection to the Senate taking up this resolution and expressing its will on this important issue.
I am troubled that the Congress appears willing to cede its constitutional responsibility on this matter to the executive branch. I am concerned about the signal that the Senate's refusal to act sends to the executive branch and what it could mean for the future of other treaties with which this or other administrations may not agree.
The Senate does not grant its advice and consent to ratify treaties lightly, and we should not abrogate our responsibility to express the will of this body on whether the United States should withdraw from treaties. By failing to act on this important issue, we are granting the executive branch undue license to trample on the constitutional prerogatives of the Senate and to blur the separation of powers and system of checks and balances. I am concerned that the Senate's inaction today tips the scales dangerously in favor of the executive branch.
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