The Iran Nuclear Deal. What Will the Senate Do?

Cartoon: The Economist

Last week, the America administration, together with the governments of China, Germany, France, Russia and Great Britain, agreed the framework of an agreement with the Iranian government regarding the latter’s nuclear capacity. In brief, the deal will lift sanctions on Iran in exchange for preventing Iran from quickly building a nuclear bomb, although Iran’s nuclear program remains in place.

Immediately, Israeli Prime Minister Netanyahu denounced the deal. The western world’s media is undecided as to whether the deal is beneficial and whether it will work. The parties have until June to produce the formal agreement. Once this is in place, the participating governments will be asked to approve it. In the case of America, those who negotiated the deal will not decide whether it becomes law. The American Constitution gives that power to the Senate under its “advise and consent” responsibility.

When a treaty is submitted for approval, the Senate has several options. It may approve or reject the treaty as it has been submitted or it may make its approval conditional by including amendments to the text of the treaty. The President and the other countries involved must then decide whether to accept the conditions and changes in the legislation, renegotiate the provisions, or abandon the treaty. Finally, the Senate may choose to take no definitive action, leaving the treaty pending in the Senate until withdrawn at the request of the President or, occasionally, at the initiative of the Senate.

Will the Senate approve the Iran deal? The Senate has a history of rejecting treaties. During the last quarter of the 19th century, numerous international agreements, mainly relating to trade, were rejected. In an effort to avoid the same fate for his 1898 peace treaty with Spain, President McKinley named three U.S. senators to negotiate the treaty. Senators from both parties roundly criticized his action, but the Senate ultimately ratified the agreement.

A generation later, senators criticized President Wilson for not including some of its members in the delegation that negotiated the Treaty of Versailles, which ended World War I and established the League of Nations. When the President hand-delivered the treaty to the Senate in July 1919, Democrats mostly supported it, but Republicans were divided. The “Reservationists” called for approval of the treaty only if certain reservations, or alterations, were adopted. The “Irreconcilables” opposed the treaty in any form. The disputes and disagreements resulted in the United States never ratifying the Treaty, nor did America join the League of Nations. Interestingly, President Truman involved the chairman and the ranking Republican of the Senate Foreign Relations Committee in the creation of the United Nations. This action helped to spare the U.N. the fate of the League of Nations.

It is possible to by-pass the Senate by classifying a deal as an executive agreement, not a treaty, a distinction that has only domestic significance. International law regards each mode of international agreement as binding, whatever its designation under domestic law. The challenge of obtaining two-thirds vote in the Senate on treaties was one of the motivating forces behind the vast increase in executive agreements after World War II. For example, in 1952 the United States signed 14 treaties and 291 executive agreements. In recent years, the growth in executive agreements is also attributable to the sheer volume of business conducted between the United States and other countries, coupled with the already heavy workload of the Senate.

It is difficult to envisage President Obama taking the Senate-avoidance route in the Iran case. The treaty is hugely important and several other nations are involved. Failure to involve the Senate would demonstrate the President’s weakness and a lack of confidence in the treaty itself. The problem for the President is twofold. First, the Republican senators may vote en-masse on political grounds to defeat their enemy in the White House. Second, many Democrat senators are influenced by the pro-Israel lobby and will be reluctant to approve a treaty which can be construed as a threat to Israel’s security. All of this leads to: “watch this space.”

The 22nd Amendment

Come Back, Bill, Barack and W. All Might Be Forgiven.

This week, David Cameron, the British Prime-Minister, announced that if his government was

elected in May, he would serve a full five-year term and no more. There was no legal requirement for him to say this. His statement will provoke many questions, such as who will succeed him in 2020? How and when will this decision be made? The British political media will have a field day.

The former power given to a British PM to declare an election whenever he chose has been changed by an Act of Parliament, so that governments will always serve for five years unless defeated by a vote of confidence. Of course, the Act can be annulled if Parliament so chooses. However, there is a concern that we seem to be adopting the two term limit American system.

The American Constitution provided that executive power be vested in a President for a four year term. In the 1789 document, no limitation was placed on the number of times a person could stand for election. However, the 22^nd amendment to the Constitution provided that no person shall be elected to the office of the President more than twice.

During the Constitutional Convention, there was much debate on the question of the length of time a president should serve. Fears were expressed about executive power being a potential threat to liberty, hence Edmund Randolph called for a one year term with no re-eligibility. Others, including Alexander Hamilton, argued for a seven year term, likewise with no re-eligibility. Fear was expressed that the one term limit would incline a president to “accumulate wealth and provide for his friends”.

Ultimately, the Convention agreed on a four year presidential term with re-eligibility. Many of the early presidents were elected for second terms. Neither Washington, Jefferson, Madison, Monroe nor Jackson sought election for a third term. Therefore, an unwritten convention arose that no president would seek a third term.

After McKinley’s assassination in 1901, Teddy Roosevelt served as president for almost four years before winning an election in his own right in 1904. Roosevelt announced he would not stand again in 1908 because he “supported the wise custom which limits the President to two terms.” This did not prevent Roosevelt from running again eight years later, his justification being that 1904 was his first election.

Franklin Roosevelt was elected president in 1932. In 1940, he was reluctant to run openly for a third term but at the Democratic National Convention that year, he was nominated on the first ballot. FDR’s Republican challenger announced that, if elected, he would ask Congress to pass a presidential term limit as the first order of business. In any event, FDR was re-elected to third and fourth terms, which would suggest that if a custom or convention existed that presidents would not serve more than two terms, it was not considered binding by the electorate.

By 1946, Republican politicians were bent on limiting perceived presidential term excesses. They had been excluded from the White House for sixteen years. When the Republicans gained control of both houses of Congress that year for the first time in twenty- two years, their first order of business was the introduction of what ultimately became the 22^nd Amendment.   The main argument put forward by the Republicans was that whilst the law had not been broken by FDR, established constitutional tradition had been. An amendment would restore an intention that had been understood, if not spoken.

Another argument put forward was that the balance of power between the three branches of government might be lost if there was insufficient check on the power of the presidency.  There was also an adverse reaction amongst Republicans to the rapid increase in the growth of bureaucratic government under FDR and accordingly they considered it important to limit the power of a president, who was now the head of a large bureaucracy. New government agencies had been created by FDR, all of which were directly answerable to the President, not Congress. There were fears amongst Republicans that future presidential terms of the length of FDR’s would result in an embedded civil service resistant to changes of policy initiated by a new president.

 The Democrats argued the 22^nd amendment would reduce the people’s political free choice, restricting the rights of the electorate. Congressman Joseph Bryson said, “If the people of the United States can be trusted to elect a President for one or two terms, they can also be trusted to determine whether he should continue in office for a third term.” The electorate appeared to show little concern about limiting presidential terms. Gallup polls found it did not register among public political concerns.

Harry Truman argued the Amendment was unwise because it made a “lame duck” out of every second term President for all time in the future. “It puts a President who is in the hardest job in the world.........with one hand behind his back.” The first president to be affected by the Amendment was Eisenhower. He told reporters that the electorate “ought to be able to choose for President anybody that it wants, regardless of the number of terms he has served”.  

Since Eisenhower’s day, there have been only four presidents, Reagan, Clinton, Bush (43) and Obama, who have been subject to 22. But the question arises, does the Amendment do the job? No one has challenged it but there are numerous possibilities which would enable 22 to be circumvented. For example, Mrs Clinton might have her husband stand for the vice presidency. If her ticket won, she could stand aside, perhaps on grounds of ill health, in which event Bill would be back in charge.

Another scenario might be Obama running for a third term in 2016 by popular acclaim. If Congress and the Supreme Court sought to stand in his way, it is not inconceivable, although highly unlikely, that an elderly Democratic senator would run as a stalking horse presidential candidate with Obama on the ticket as VP and stand aside after victory. The ultimate test would be whether Obama has sufficient powers of persuasion to by-pass the Amendment.

All scenarios require the collaboration of a political rival for the presidency and are thus far-fetched, but the essential point is that the legal imperative of the Amendment can be avoided.

The American Constitution was designed to ensure that the President did not have so much power that a tyranny or dictatorship would ensue. Numerous checks and balances curb any excesses of power. Some post war presidents have criticised the Amendment as restrictive, a dilution of power on the office where, since the end of the World War II, the greatest constitutional responsibility lies.

The ways of government in The United Kingdom differ immensely from our American cousins. Whilst Cameron’s decision was personal, will it bind future PMs? If so, we need to question whether we need to adopt term limitation? I don’t think so.

The American Execution Contradiction.

If nothing else, the USA is the land of paradox. For example, more than three hundred million people occupy it. Yet the vast majority of the population is squeezed into California, the north east states and some southern states, while states like Wyoming and Montana, two of the most beautiful states, are sparsely occupied. Go to a baseball game. Before a ball is pitched, someone holding a microphone will lead the singing of the national anthem, praising the States as the land of the free. But at any given time, some two percent of the American population is incarserated in a federal or state prison.

The Declaration of Independence seeks to guarantee certain inalienable rights. Thomas Jefferson and colleagues were eager to protect “life,” as well as liberty and the pursuit of happiness. Yet America's federal government and thirty-two states maintain the death penalty on their statute books. Thus a majority of Americans live under laws which include the legal right for the state to execute people, ending their lives before the natural span has expired. It occurs to me that the Declaration of Independence suffers from a lack of clarity. Should it not have guaranteed "the right to life, provided the law is not transgressed and a capital crime committed?"

There is a fundamental question. Should any state or nation have the right to withdraw human life? My belief is that it should not. Too many mistakes have been made over the years and people have been wrongly executed. Setting my personal views aside, America remains the only western democracy that retains the right to curtail life. Why is it so out of step with its political partners?

I have written before about the death penalty so why am I going down this route again? In a word, Utah. The state government of Utah has decided to alter its method of execution. It can no longer purchase lethal injection chemicals. Evidently, the sole supplier is the EU, which will no longer oblige. Is there no other concoction? Veterinary surgeons all over the country put dogs "to sleep" every day. They administer an anaethsetic, followed by a drug that stops the heart. Cannot something similar be found for humans in America?

Faced with the dilemma, the Utah legislators have decided to reinstate the firing squad, a method that was outlawed by the state more than ten years ago. Talk about going back to the dark ages. A Utah legislator said, "It will only take a few seconds for people to die. It’s a quick bleed out." This punishment seems cruel and unusual, offending the 8th Amendment. Will Governor Herbert, a Republican, sign the bill into law? His term of office expires next year. If he wishes to run again, does he need to be seen to be tough on crime?

Currently, Utah has five people on death row. How will they feel about being shot to death? Why should we care? These people have been convicted of capital crimes and have received the benefit of a two phase trial. Does it matter how they die? The answer must be “yes” as the Supreme Court has often considered the ways and means of lethal execution.

Utah is a beautiful state, Salt Lake City excepted. How can its citizens be happy with a law which will sully the state's reputation? As for the shooters themselves, did they sign up to kill in cold blood? The death penalty is an aspect of American life which I find beyond belief.

Obamacare Under Challenge

Americans are fond of saying that “the President is the most powerful man in the world.” It is true that he has an array of weaponry at his disposal that could blow up the world seventeen times before breakfast. But, as Lyndon Johnson famously remarked about the conduct of the Vietnam War, “the only f***ing power I have is nuclear and I can’t use that!”

Having inherited the worst economic situation in decades from a Republican administration, the Obama administration has turned things round. For example, it has helped the car industry recover its strength. It has reduced unemployment. Abroad, it has ended its participation in the Iraq and Afghanistan wars, another inheritance from the Republicans. Yet Obama is under fire. This time, he faces a challenge in the Supreme Court which has taken up the Affordable Care Act, better known as Obamacare, for the third time.

The Supreme Court case is the latest effort by political opponents to wreck President Obama’s most important domestic achievement, the Affordable Care Act. If the Supremes find for the plaintiffs, Obama’s legacy will be tarnished, it will foment infighting among Republicans, augment partisanship, not to mention hatred, between the GOP Congress and the White House, and cause enormous chaos in the health insurance market. Worst of all, an estimated 9.6 million people would lose their health insurance cover.

The lawsuit before the Court, King v. Burwell, is unlike the previous two Obamacare cases that have been brought to the Supreme Court. Three years ago, in National Federation of Independent Business v. Sebelius, Chief Justice John Roberts joined the court’s four liberals in upholding the constitutionality of the Affordable Care Act’s individual mandate, permitting most Americans to obtain government-supported health insurance. Last year in Hobby Lobby v. Burwell, the Court weakened ACA birth-control coverage, a case which had religious freedom implications. The case was GOP inspired.

The ACA entitles Americans to buy health insurance through insurance exchanges. Thirteen states have established an exchange. The other thirty seven have not, but the federal government provides exchanges instead. Yesterday, the Court heard oral arguments in King v Burwell, a lawsuit engineered by conservative and libertarian think tanks who claim a handful of words within the ACA, “an exchange established by the state,” makes it illegal for the federal government to provide healthcare insurance whilst issuing tax credits in those  states using federal health insurance exchanges

The plaintiffs’ assertion has dire implications for low and moderate income people receiving those subsidies in states where the federal government, not the state, created a health insurance exchange. Just thirteen states and the District of Columbia are fully operating these marketplaces.

As of last month, 8.8 million people had taken private health insurance policies through the exchanges in the thirty seven states that use the FederalHealthCare.gov system. Millions more have used state-based marketplaces. According to a recent article in The Washington Post, since sign-ups began in October 2013, the share of customers on federal exchanges receiving tax credits for their coverage has been above 85 percent. According to data from the Department of Health and Human Services, the average value of those subsidies is $268 a month, bringing down the average monthly price to $105 for subsidized enrollees.

The ruling is expected in June. If the Supreme Court sides with the plaintiffs, a majority of the public will demand the subsidies restored, according to a survey by the Henry J. Kaiser Family Foundation. Their poll revealed that 64 percent of Americans believe Congress should enact a fix, and 59 percent think their own states should set up health insurance exchanges.

But a fix may never come. Congress could have made the Supreme Court hearing unnecessary by passing a simple amendment clarifying the intent of the Affordable Care Act. The Congressional Republicans have adamantly refused to consider this. The Obama administration maintains there’s nothing it can do on its own to mitigate the disappearance of subsidies.

It is a disgrace that the current Republican-controlled Congress should defy not only the will of a previous Congress but also a Supreme Court ruling that Obamacare was lawful, as well as the wishes of the majority of Americans. I have written on many occasions about the hypocrisy of legislators who enjoy, at taxpayers’ expense, the best medical health insurance plans but seek to deny protection to millions of their fellow citizens.

It is my understanding that the states could evade the consequences of an adverse Court ruling by establishing their own health insurance exchanges. However, Republicans control at least one branch of government in nearly all of the affected states and would probably block any such proposal. None has taken steps to begin the contentious, time-consuming and costly effort to do so.

A recent poll by the Urban Institute suggests that of those who would lose coverage, 62 percent live in Southern states, mostly governed by Republicans, 81 percent are employed and 61 percent are white. With an election looming next year, surely the Congressional Republicans should reconsider their position in the light of potential vote losses. Furthermore, the disruption would not be limited to people who qualify for health insurance subsidies. It would have profound effects on health insurance markets, often Republican led, in the affected states.

Having briefly read the reports of yesterday’s hearings, the justices seem to be keeping to their ideologies. If so, the ruling might sink ACA and restore millions of people to the position they had before 2013, worrying about their finances should they need medical care. How does this equate with the much vaunted American ideal of fairness? Mr Spock of Star Trek fame said it best: “The needs of the many outweigh the needs of the few.” It is to be hoped that the Supremes heed the spirit of the law, not its letter, and throw out the law suit.

Alice in Wonderland Meets Congressional Republicans

Recent machinations in Congress reminded me of an exchange in Lewis Carroll’s “Alice in Wonderland. “ Substituting Congressional Republicans for Alice and John Boehner for the Cheshire Cat, the following conversation might occur:

Republican: “I don’t want to go among mad people.”

JB: “Oh, you can’t help that, we’re all mad here. I’m mad, you’re mad.”

Republican: “How do you know I’m mad?”

JB: “You must be or you wouldn’t have come here.”

Republicans, who now control both Houses of Congress, are unable to agree on how to respond to President Obama's immigration policies. Recently he issued Executive Orders which would shield an estimated five million undocumented immigrants from deportation. Conservative Republicans have added a rider to a bill extending funding for the Department of Homeland Security, cancelling the Executive Orders. DHS funding expires this Friday. The Democrats aren’t budging and the Republicans cannot get the funding bill through.

Speaker of the House, John Boehner, plans to hold a vote on a bill that would extend DHS funding for another three weeks. What is the point of setting an arbitrary deadline for such a short time? The expression, “kicking the can down the road,” comes to mind. Has Boehner the 218 votes he needs to pass this short-term bill? If not, DHS funding will expire. 

If the House bill passes, the House and Senate will have just three weeks to bridge their fundamental differences on funding DHS for the long term and, at the same time, block President Obama’s changes to immigration policy. In addition, Congress must update a complicated Medicare reimbursement formula for doctors. And it needs to pass the budget. There is a logjam down the road, not just a tin can, and a major governance failure for the Republican Congress. GOP leaders have vowed to avoid such problems but we have heard all this before.

Republicans will continue their internal debate over whether to partially close DHS and protest President Obama’s immigration actions. The party has virtually no chance of forcing Obama to roll back his immigration plans. Senate Democrats will almost certainly filibuster any legislation that blocks Obama’s executive orders, just as they did in January and February. Even if Senate Republicans manage to eliminate filibusters, as Democrats did during the last Congress, they don’t have the votes to overcome a presidential veto. Republicans have only one other form of leverage: cut off DHS funding in hopes that Obama will roll back his immigration plans.

For now, the president’s executive orders on immigration are on indefinite hold after a federal judge last month temporarily suspended them in response to a 26-state lawsuit challenge. The Obama administration will appeal the decision, which will prolong the legal battle into next year, especially if the case moves to the Supreme Court.

President Obama has never conceded to shutdown threats. Furthermore, the last partial government closure in 2013 hurt Republicans’ approval ratings far more than his own. It’s unclear what Republicans will do about DHS this week, but one thing is certain: a shutdown alone will not negate the recent immigration orders. Will we see John Boehner adopt the role of another “Alice” character, the Mad Hatter, and run around the House saying, “clean vote?”