Advice and Consent

Advice and Consent


Senator Russ Feingold had hoped the Senate Democratic leadership would challenge George W. Bush’s decision to withdraw the United States from the Anti-Ballistic Missile Treaty. At the least, he had expected senior Democratic senators with track records on arms control to defend the agreement between the United States and Russia that since 1972 has underpinned efforts to curb the arms race. In a Senate where Democrats are still hypercautious about questioning the Bush White House on defense issues, however, Feingold stood alone.

“I wanted the leadership to take a lead. But when we contacted [majority leader Tom] Daschle’s office, they just weren’t interested,” said the Wisconsin Democrat. Feingold knew that meant it would be impossible to get the Senate to block withdrawal from a treaty it had approved 88 to 2 in 1972. Still, he said, “I did not want the Senate to be silent on this.” Three days before the June 13 expiration of the treaty, Feingold, chairman of the Judiciary Committee’s subcommittee on the Constitution, rose on the Senate floor to remind his colleagues of the constitutional requirement that decisions regarding treaties be made by the President “with the advice and consent of the Senate” and of the Founders’ intent–as explained in Thomas Jefferson’s Manual of Parliamentary Practice: For the Use of the Senate of the United States–that “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to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded.”

“It is clear to me, Mr. President, as it was to Thomas Jefferson, that Congress has a constitutional role to play in terminating treaties,” Feingold declared. “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.”

When Feingold sought unanimous consent to debate a resolution making that point, however, Orrin Hatch, the ranking Republican on the Senate Judiciary Committee, objected. That ended any hope for a Senate challenge to Bush. Meanwhile, GOP leaders in the House blocked an attempt by Dennis Kucinich to assert that chamber’s authority to preserve the treaty.

The failure of Daschle and other Senate Democrats to stand with Feingold illustrates how, post-September 11, the loyal opposition frequently chooses loyalty to misguided Administration initiatives over necessary opposition. But if Senate Democrats are unwilling to fight the power, Feingold hopes a judge will do so. He has asked for Senate approval to accept pro bono legal assistance so he can join a lawsuit filed June 11 in the US District Court in Washington by Kucinich and thirty other House members who object to the President’s unilateral decision. Peter Weiss, lead lawyer for the lawmakers, says that if it succeeds, Bush would be forced, retroactively, to seek Congressional approval of the treaty withdrawal.

Feingold’s participation in the suit is important, as a judge could decide he has better standing than a House member in a legal matter involving interpretation of the requirement that a President seek the consent of the Senate. Still, the suit is a long shot. A federal judge backed a 1979 attempt by the late Senator Barry Goldwater to block termination of a defense treaty with Taiwan, but an appeals court overturned that ruling and the Supreme Court refused to take the case. That does not deter Kucinich. “The basis of this whole government is the Constitution. When an Administration comes to power in a manner that is extraconstitutional, as the Bush Administration did, it becomes all the more essential that we insist upon the legitimacy of the founding documents, on the sacredness of those documents,” says Kucinich. “Washington has become a very vulgar place, but the Constitution is still sacred.”

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