Co-blogger Andrew Hyman pointed out to me that the Republican Party platform has some matters of interest for treaty power scholars and originalists. First, there's this:
We reject the agendas of both the Kyoto Protocol and the Paris Agreement, which represent only the personal commitments of their signatories; no such agreement can be binding upon the United States until it is submitted to and ratified by the Senate. (p. 22)
Apart from that thing about the Senate "ratifying" treaties (see here: the Senate consents to ratification; the President ratifies), I sort of agree. The Kyoto Protocol is a nonbinding agreement by its terms. I'm inclined to think the Paris Agreement requires Senate approval under the U.S. Constitution. It's still probably binding on the U.S. under international law, now that the President has ratified it. But, we are told, it does not have material binding obligations (all its obligations being either non-material or non-binding). So I guess the statement is mostly true.
Then there's this:
We will not recognize as binding upon the United States any international agreement forged without the constitutionally required assent of two-thirds of the United States Senate. (p. 10)
Well, I applaud the sentiment as a matter of original meaning, but wait a minute here: NAFTA was "forged without the constitutionally required assent of two-thirds of the United States Senate" (as were most recent U.S. trade deals). Is the platform calling for withdrawal from NAFTA? As best as I could see on a quick look, NAFTA is not directly mentioned in this regard, but it's hard for me to read the quoted language otherwise. Perhaps it could be read to apply prospectively only, but the past tense in "forged" seems clearly to apply to deals made in the past.
It gets back to treaties later:
We intend to restore the treaty system specified by the Constitution: The president negotiates agreements, submits them to the Senate, with ratification requiring two-thirds of the senators present and voting. This was good enough for George Washington but is too restrictive for the current chief executive, who presumes to bind this country to bilateral and multilateral agreements of his devising. His media admirers portray his personal commitments — whether on climate change, Iranian weapons, or other matters — as done deals. They are not, and a new Republican executive will work with the Congress to reestablish constitutional order in America’s foreign relations. All international executive agreements and political arrangements entered into by the current Administration must be deemed null and void as mere expressions of the current president’s preferences. Those which are in the national interest but would traditionally have been made by treaty must be abrogated, renegotiated as treaties, and transmitted to the Senate for its advice and consent as required by the Constitution. The United States will withdraw from all agreements and arrangements failing those standards. (pp. 26-27)
This passage makes it sound more that sole executive agreements and nonbinding agreements are the problem. I agree that the next President could constitutionally withdraw from these if the President wants to, though the platform seems a bit excessive in labeling "[a]ll" agreements "entered into by the current administration" as in effect unconstitutional. It would be hard to make that case, even under the original meaning. I wonder if the platform committee realizes how many low-level agreements are made every year. Also this language seems — perhaps deliberately — to avoid dealing with congressional-executive agreements.
And the platform is tough in some other regards too — such as this part:
The rule of law is the foundation of our Republic. A critical threat to our country’s constitutional order is an activist judiciary that usurps powers properly reserved to the people through other branches of government. Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia. We are facing a national crisis in our judiciary. We understand that only by electing a Republican president in 2016 will America have the opportunity for up to five new constitutionally-minded Supreme Court justices appointed to fill vacancies on the Court. Only such appointments will enable courts to begin to reverse the long line of activist decisions — including Roe, Obergefell, and the Obamacare cases — that have usurped Congress’s and states’ lawmaking authority, undermined constitutional protections, expanded the power of the judiciary at the expense of the people and their elected representatives, and stripped the people of their power to govern themselves. We believe in the constitutional checks and balances and that the Founders intended the judiciary to be the weakest branch. We encourage Congress to use the check of impeachment for judges who unconstitutionally usurp Article I powers. [Editor's note: "!" Also "?" because I'm not sure what Article I powers — as opposed to state powers — the Court has supposedly usurped.] In tandem with a Republican Senate, a new Republican president will restore to the Court a strong conservative majority that will follow the text and original meaning of the Constitution and our laws. (p. 10)
Mostly I like that they said "original meaning" instead of "original intent."
Posted at 6:41 AM