One of Donald Trump's campaign promises is to renegotiate NAFTA (into a more amazing and fantastic agreement, no doubt). Here's a simple question that should get some attention: Can he abrogate NAFTA without an Act of Congress? If NAFTA were a traditional treaty (approved by two-thirds of the Senate), then the answer would be yes. The Supreme Court long ago held that it's up to the President alone to decide whether treaties should be, in effect, broken.
NAFTA, though, is not a traditional treaty. It was a congressional-executive agreement enacted by both houses of Congress. Thus, I would think that only an Act of Congress can undo NAFTA from our side. (There could be a provision in the original statute that gives the President some repudiating authority, and I would be curious if any of the comments to this post might shed light on that.)
If NAFTA can only be renegotiated following an Act of Congress, then I think the Speaker of the House and the Senate Majority Leader should be asked about their position on that. Granted, they are doing their best to imitate an ostrich these days, but I think this is a valid question about future action in the legislature.
Article 2205 says "A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties."
ReplyDeletehttps://www.nafta-sec-alena.org/Home/Legal-Texts/North-American-Free-Trade-Agreement?mvid=1&secid=d5a8ba07-1fb2-4f28-88d0-a8eac08611a2
I didn't try to read the whole thing, but I see no reason to think that this abrogates standard US law permitting a President to withdraw from a treaty. It appears to leave it up the local law of each signatory.
That said, I have no expertise in international law.
My own position would be that it would take an act of Congress, since it IS a treaty. But that's more a normative position than a statement of current precedent. I suppose current precedent is that Presidents can do anything a majority of the Supreme court don't object to.
ReplyDeleteThe question would be if "a congressional-executive agreement enacted by both houses of Congress" is different than a "treaty" or a regular executive agreement.
ReplyDeleteSome assume so (though it comes off as somewhat ipse dixit me): http://www.dorfonlaw.org/2016/04/the-us-v-texas-oral-argument-cotton.html (note it still might be complicated by that analysis). Also found this:
https://piie.com/system/files/documents/piieb16-6.pdf
But, "both houses of Congress" acting here very well might be different from a treaty with only the Senate involved. Anyway, if Congress wanted to, it could on its own pass rules regulating international commerce.
"since it IS a treaty"
ReplyDeleteUnder the Constitution, "a treaty" requires the concurrence of 2/3 of the Senate. This did not -- it required a majority of both houses of Congress.
So, if we are taking a "normative position," that might be notable. I personally think it makes sense that if you need Senate consent to enter, you should have consent to exit (and here since both houses concurred, both houses). But, practice suggests not if with some doubt.
http://www.slate.com/articles/news_and_politics/explainer/2001/07/can_congress_stop_bush_from_breaking_the_abm_treaty.html
In that case, it's legislation, and the President's (largely eviscerated) "take care" duty is relevant.
ReplyDeleteNo, as Joe says, it's an Executive Agreement with foreign nations. The implementing legislation is a law, and the take care clause is relevant to that. But current law, which I think is correct, is that the President can abrogate treaties (e.g., Bush and the ABM Treaty). Executive agreements would be an a fortiori case.
ReplyDeleteSo President-for-life Trump could not only abrogate the US' acceptance of the Paris Agreement as an executive agreement signed by Barack Obama, but denounce the Rio Treaty (UNFCC), to which the Senate consented i 1992 by I think 98 votes.
ReplyDeleteTrump's language of "cancelling" the Paris Agreement is of course legally illiterate, since it would remain in force for the other parties. (You could set up a classroom exercise in which the withdrawal would make the number of Parties fall under the 55 needed for entry into force, but it would be highly artificial). Trump seems to imagine that if the US withdraws, the whole thing falls apart. It would not; countries sign important treaties because they accord with their considered view of their national interest, not to please Uncle Sam. Obviously the agreement would be badly damaged, and any hopes of a second wave push for 1.5 degrees C would be postponed, perhaps indefinitely. Retaliation is not impossible, through carbon fees on imports from do-nothing countries.
The Constitution only enforces one form of international agreement - the treaty. NAFTA is not a treaty because 2/3 of the Senate did not ratify it.
ReplyDeleteThus, a President Trump should be able to reverse this executive agreement (even if supported by a resolution of Congress) with an executive order.
The Constitution only recognizes two types of legally binding commitments, treaties and legislation. If it was passed by a majority vote of both houses, and signed by the President, it's legislation.
ReplyDeleteI intend to vote for Trump, but Presidents do not have the authority to abrogate legislation on their own, unless the legislation happens to say so.
If it was passed by a majority vote of both houses, and signed by the President, it's legislation.
ReplyDeleteAs Joe and I keep trying to tell you, NAFTA itself was not passed by Congress at all. It's not a statute. What passed Congress was legislation putting into effect the agreements made.
It's possible there's some confusion here about the treaty process. It works basically like this:
1. The President "makes" a treaty. Art. II, Sec. 2, cl. 2.
2. The Senate "concurs" with the treaty. Id.
3. At this point, there are 2 possible results. By Supreme Court rule, some treaties (a very few) are "self-executing". Congress doesn't need to do anything to put the treaty into effect. Most treaties, however, require enabling legislation. Congress has to pass some law to put the treaty into effect. Such legislation is not "the treaty", it's just legislation.
Executive agreements work similarly. Presidents have power to make agreements with other nations. That's part of the "executive power", all of which is vested in the President by Art. II. However, because the Senate does not "concur" with an executive agreement, it's not a "treaty" under US law. But though it's not a treaty, Congress can still pass a law implementing the provisions of the agreement. That's what happened with NAFTA.
So, can a President withdraw from NAFTA? Absolutely. But withdrawal wouldn't abrogate the enabling legislation (unless it so provides; I haven't checked). Thus, while NAFTA would no longer be in place in the US, the statutes would remain unless they have some kind of sunset clause based on withdrawal.
Where do you think we're disagreeing, Mark?
ReplyDeleteNAFTA wasn't, legally, a treaty, as it wasn't ratified by the Senate.
The enabling legislation WAS legislation.
NAFTA itself could be abrogated by the President because, as it was ungratified, it didn't have any legal force anyway. (Just to remind you, we haven't ratified the Vienna convention.) Nothing to "abrogate" except a Presidential promise.
The enabling legislation could only be abrogated under the terms it set itself.
Ok, then we're in agreement.
ReplyDeleteBrett: The Constitution only recognizes two types of legally binding commitments, treaties and legislation. If it was passed by a majority vote of both houses, and signed by the President, it's legislation.
ReplyDeleteThe Constitution only recognizes one form of agreement between the United States and other nations - the treaty.
Article II grants the President the plenary "power...to make treaties," subject to the consent of the Senate, which is meant to be a check, not a substantive power.
Treaties or any other agreements between nations are not legislation and Article I does not provide Congress with the power to make such agreements.
The Senate did not consent to NAFTA so it is nothing more than an executive agreement. Presidents can reverse executive agreements with executive orders.
Bart: Article 1, Section 8, paragraph 3: (Congress shall have power...) "To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;"
ReplyDeleteIs it your contention that the topic of NAFTA enabling legislation was something other than this?
Brett: The enabling legislation could only be abrogated under the terms it set itself.
ReplyDeleteEnabling legislation requires an underlying treaty to enforce.
Brett: Article 1, Section 8, paragraph 3: (Congress shall have power...) "To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;"
ReplyDeleteRegulating legislation is unilateral and a treaty is a multilateral agreement. They are not the same things.
OFF TOPIC: Check out this post:
ReplyDeleteLevinson, ed., "Nullification and Secession in Modern Constitutional Thought"
at the Legal History Blog. I don't recall Sandy as having promoted this book in his recent posts. The contribution by Prof. LaCroix is available via a link to SSRN. Her article is a short 16 pages on the Confederate Constitution. The comparisons with the US Constitution and interpretation of the Confederate Constitution are well done. Although the Confederate Constitution included a provision for a Supreme Court, it was never established.
I found this per Shag's comment.
ReplyDeletehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2571358
"differ[ed] only from that of our fathers in so far as it is explanatory of their well known intent"
The essay has this quote from Jefferson Davis -- that is, he argued that even when the Confederate Constitution (as it did in various particulars) changed something, it was just explicitly doing what the text of the original U.S. Constitution allegedly implicitly did. That this required a change of various words is a bit telling. Of course, we need not take Davis totally at face value.
The reference is off topic but perhaps appropriate since Constitution Day (9/17, observed by some on 9/16 this year) just passed.
http://www.libs.uga.edu/hargrett/selections/confed/trans.html
Per a pending book by the author of the opening post, it might be of interest to note that the Confederate Constitution inserted the 1-8th Amendments in its Art. IX while 9th and 10th was placed in Article VI.
I'm glad Mark Field and Brett concur on something, but ...
ReplyDeleteThe Constitution only recognizes two types of legally binding commitments, treaties and legislation.
There are executive agreements, "legally binding" in certain respects.
NAFTA itself could be abrogated by the President because, as it was unratified, it didn't have any legal force anyway.
NAFTA was negotiated as an executive agreement and was approved by Congress via the North American Free Trade Agreement Implementation Act. Regardless, executive agreements are not mere "promises," but in various ways are legally binding. For instance, they can be under international law. Likewise, they can trump local law (see, e.g., U.S. v. Belmont, trumping local banking law).
Just to remind you, we haven't ratified the Vienna convention.
We agreed to NAFTA though.
OH, I'm sorry, are executive agreements mentioned in the Constitution somewhere? How embarrassing that I overlooked it, which clause was it, again?
ReplyDeleteExecutive agreements are "legally binding" as recognized by centuries of law.
ReplyDeleteAs to the text, e.g., they arise from various powers given to the executive under Art. II. For instance, an armistice can be negotiated between U.S. forces and an enemy without Senate ratification under the commander-in-chief power etc.
The terms would be legally binding. Presidential power to recognize the legitimate government of a foreign nation could result in executive agreements. And, there can be (like NAFTA) a mixed congressional-executive agreement per powers of each. A late 19th Century postal convention might have been that.
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ReplyDeletebuy anniversary cake online
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Channelling Bizarro Brett/Bart:
ReplyDeleteMaybe the question is not whether a President Trump can withdraw us from NAFTA, but whether, given his multiple violations of federal and state law, including felonies, through his 'charities,' he would get a chance to do so before he's properly impeached.
On the question debated, it's interesting to see the disdain for executive agreements because they're not explicitly mentioned in the text of the Constitution. Leaving aside the fact what is in the text is a very vague, and therefore susceptible to an expansive reading, delegation of powers in Art. II regarding national security and foreign relations, one would think the old and unbroken tradition (starting with Washington) of executives making such agreements which were then honored might mean something to the supposed intellectual descendants of Burke.
ReplyDeleteMista Whiskas, I'm sure Trump is every bit as guilty as Ted Stevens, Tom Delay... Who can forget Lawrence Walsh bringing an indictment a week before the election, only to see it dismissed after the election? (For reasons he had to have known of when he brought the charges...) There's a long list of Republican candidates being prosecuted before elections, and then the charges falling apart after.
ReplyDeleteEverybody knew that Trump would end up in legal trouble if he ran against Hillary, and the election looked at all close. Having your opponent prosecuted for something is now part of the Democratic party playbook. The problem for her is that the expectation of that is already largely factored in.
As for executive agreements, they are indeed traditional, (Though not constitutional) and unless entered into over the clear opposition of Congress, diplomatic prudence advises sticking with them. I believe Trump has only said that he would "renegotiate" NAFTA, not that he'd repudiate it.
Balkinisation wins the prize for the oddest spam on the Web. Sending a birthday cake to India is rather a sweet idea.
ReplyDeleteBrett: "Just to remind you, we haven't ratified the Vienna convention." Apropos of what? As the State Department says, it's largely declaratory of customary international law, reinforced by the nearly universal consensus expressed in its ratifications. It assimilates all formal international agreements to treaties, for its own technical purposes. "Treaty" has a different meaning in domestic US law. So the Paris Agreement is a treaty in international law, not in domestic US law. If you are trying to say that international executive agreements are unconstitutional and invalid, not many will agree with you.
"here's a long list of Republican candidates being prosecuted before elections"
ReplyDeleteIs Hillary Clinton a Republican? Because doesn't her case of investigations before and during an election season only for the investigation to turn up no charges fit into your pattern?
But hey, as you said during that investigation, why not rely on what you can actually know for yourself? We know that Trump has bragged about giving donations to politicians for special treatment. We know that elected officials were looking into taking action on some of his scams, I mean enterprises. We know that he gave money to these officials. We know that he used his charities to route the payments, itself a violation of law and exactly the behavior of someone trying to hide a bribe. And we know that the investigations were dropped. On your legal philosophy of 'everyone knows what was going on there,' we're dealing with a multiple felon. And here you are, supporting a multiple felon. My, my, it seems the conservatives and Republicans these days are willing to just ignore multiple felonies when it comes to getting someone they like into office. Does this signal the end of the Republic?
"they are indeed traditional, (Though not constitutional)"
ReplyDeleteA conservative might think tradition is something of an indicator of constitutionality. Sola Scriptura, for example, is for conservative Catholics a theological error those radical Protestants make...
"As the State Department says"
ReplyDeleteFancy that. The State department, part of the Executive branch, says that the Executive doesn't need Senate approval to legally bind the US to a treaty. The Executive branch asserts unilateral Executive authority. What else would you expect?
Does the Legislative branch have an opinion on this? In fact they do, and it's not the Executive branch's opinion. They expressed that opinion by rejecting the Vienna convention. It is the opinion of the Legislative branch that the Convention is NOT binding on the US.
I'm not saying that international executive agreements are affirmatively unconstitutional, in the sense of being constitutionally prohibited. I'm just saying that they're not constitutional, in the sense that the Constitution allots them no legal force. Compliance with them has considerable diplomatic prudential force. It's just not legally mandated under the US Constitution.
"Is Hillary Clinton a Republican?"
ReplyDeleteNo, and she wasn't prosecuted, either, now, was she?
"A conservative might think tradition is something of an indicator of constitutionality."
A constitutional textualist might think what the actual text of the Constitution says is something of an indicator of constitutionality, and that violations of the Constitution can become traditional, without ceasing to be violations.
she wasn't prosecuted, either, now, was she?
ReplyDeleteMore to my point, that. Heck, the GOP's election time fishing expedition was so flimsy it didn't even reach the level of a charge!
A constitutional textualist might think what the actual text of the Constitution says is something of an indicator of constitutionality, and that violations of the Constitution can become traditional, without ceasing to be violations.
ReplyDeleteExactly my point. That an abstract philosophical system trumps tradition isn't unreasonable, but it's more expected from the Jacobin than the Burkean.
Hark! Both Trump and HRC have been the subject of election season investigations which so far have yielded nothing legally. For Jacobim conservatives like Brett, the looking into of Trump is itself evidence of corruption of the system, but on the other hand it's that HRC hasn't been looked into *more* and with some actual legal result that proves corruption of the system!
ReplyDeleteI guess the great thing about being a rank partisan/ideologue is that you always have a spare set of principles and standards lying around if the other set don't seem to be 'working'
Mr. W / Brett:
ReplyDeleteMr. Trump almost certainly paid off politicians and bureaucrats to operate a construction business in NY/NJ. The Donald calls this "getting along" and is SOP in most progressive cities where the government determines what, where and if you can build. The Clintons were among these politicians
Whether these payoffs constitute bribery under state or federal law is a completely different matter. Any competent contractor and politician will move the money indirectly so as not to violate the law. You will note that I have never said the Clitnons violated the law with their influence selling scheme for this very reason.
None of this will matter to Democrat prosecutors, though. They are increasingly abusing their offices to shield Democrat political royalty from their demonstrable crimes and prosecuting the political opposition (including dissenters in their own party) for acts which do not violate the law.
"Exactly my point. That an abstract philosophical system trumps tradition isn't unreasonable, but it's more expected from the Jacobin than the Burkean."
ReplyDeleteThe general idea of conservatism is to keep what works, and be very careful about deciding that something should be changed. Chesterton's fence. We're getting by the way things are, don't screw up what's working.
But, when you're losing ground, real conservatism doesn't require that you not try to win it back. That's not conservatism, that's what conservatism's enemies want it to be, so that they don't have to defend what they've won, and can concentrate on new victories.
And the Constitution isn't an "abstract philosophical system", it's a body of law.
The problem with the Hillary investigations is that they HAVEN'T come up empty. They've come up with more than enough to normally justify prosecution, and it didn't happen anyway.
"Mr. Trump almost certainly paid off politicians and bureaucrats to operate a construction business in NY/NJ."
ReplyDeleteAbsolutely. I've said this over and over: Trump is a businessman, but he's no hero out of an Ayn Rand novel. He's a successful businessman in a very deeply compromised crony capitalism system, and he's done the things that were necessary to succeed in such a system. He's definitely dirty in that respect.
The problem with comparing that to Clinton, is that he was on the side making the payments, she was on the raking them in side. Liberals, with their love affair with government, like to see all such payments as bribes, the innately noble public official being corrupted by the private sector's offers of money.
It's more in the nature of the public officials committing extortion, but even where it is a bribe, what sane person offers a bribe to somebody who might be honest, and take offense? The person paying might be guilty or victim, but the person on the receiving end, (That's Hillary.) is always guilty.
My hope is that Trump doesn't like the system that forced him to hand over that money as a condition of doing business.
Brett I'm not saying that international executive agreements are affirmatively unconstitutional, in the sense of being constitutionally prohibited. I'm just saying that they're not constitutional, in the sense that the Constitution allots them no legal force. Compliance with them has considerable diplomatic prudential force. It's just not legally mandated under the US Constitution..
ReplyDeleteApart from the times when Congress exercises an express Article I power, Article II grants the President as sole executive and CiC the power to direct the nation's foreign policy. Executive agreements and orders are memorializations of these directions. Thus, executive agreements do indeed have the force of the Constitution.
What executive agreements cannot do is legally bind the United States to perform the terms of that agreement. The Constitution only recognizes treaties to which the Senate has consented as the law of the land. Executive agreements are more akin to unenforceable promises between heads of state and the president can withdraw such promises at his or her discretion.
Right: All the force they have derives from the Executive's lawful power even absent the agreement. They're just an executive's promise to exercise that power in a particular way, and are not binding on subsequent executives, nor do they bind any constitutionally independent power.
ReplyDeleteThat's why I like to call them Executive "pinkie promises", to keep them in perspective. What they aren't in any sense is law.
"Any competent contractor and politician will move the money indirectly so as not to violate the law."
ReplyDeleteAs Brett says often, not doing something a prosecutor might prove in court doesn't mean one didn't break the law. If the Donald did indeed pay off officials for official act favors then he broke the law, even if the way he did so left no paper trail that a prosecutor could use to win a case against him.
"They've come up with more than enough to normally justify prosecution, and it didn't happen anyway."
ReplyDeleteThey've come up with what you and other partisans think is enough but even life long GOP prosecutors don't think is enough. Two different things of course, and the first thing can be equally said of Trump.
"he's done the things that were necessary to succeed in such a system. "
ReplyDeleteIf he's given money to get official acts then such things are felonies, even if the nature of the laws involved make a showing in court meeting all the elements difficult. This is of course the exact standard you demonstrate in Hillary's case (well, absent having a layperson second guess a career prosecutor).
"If the Donald did indeed pay off officials for official act favors then he broke the law, even if the way he did so left no paper trail that a prosecutor could use to win a case against him."
ReplyDeleteHow about if he paid off officials for official acts which they were supposed to perform without being paid off?
People who love government, (When they control it, anyway.) really hate to recognize that a lot of 'bribery' is actually extortion.
OFF TOPIC AGAIN (I couldn't resist!):
ReplyDeleteBREAKING NEWS! " WELLS FARGO STAGECOACH DRIVERS ROB PASSENGERS!"
Anyway, of topic: Does anyone else wish that Sandy would just come out and say in a comment that he's closing comments on a posting, instead of just sending things into moderation limbo?
ReplyDeleteBD: "Any competent contractor and politician will move the money indirectly so as not to violate the law."
ReplyDeleteMr. W: not doing something a prosecutor might prove in court doesn't mean one didn't break the law.
Under our criminal justice system, there is no violation of law without evidence beyond a reasonable doubt.
An act which violates the spirit of the law is not a crime.
This is why clients often pay attorneys small fortunes to navigate around the law.
To repeat. Executive agreements are "legally binding" as law has been understood, in some fashion (quick research -- such as U.S. v. Belmont -- referenced at least back to the 19th Century, the opinions written by both conservatives and liberals) back to the days of Washington.
ReplyDeleteThe text of the Constitution explicitly doesn't bar them. Long practice has accepted them. This too is repeatedly a means, if rebuttable, to determine law. They are accepted in the field of international law [honored back to the Declaration of Independence] which per the Supreme Court (etc.) since the early 19th Century at least is assumed binding unless there is very clear error.
Actual text in the Constitution gives executives (and Congress/the executive per NAFTA, postal agreement in the 19th Century etc.) powers that leaves (without more) it open. The references to treaties doesn't rebut all of this. It does suggest "treaty" has a special meaning as a matter of constitutional law with a specific rule of negotiation and ratification. But, it doesn't make executive agreements, including the examples provided, not "legally binding" or merely "traditional" and not "constitutional."
But, Brett disagrees. Sarcastically. It can't just be that he's right while all the other stuff is wrong. Which is sometimes possible (I think I'm right at times when people are wrong). It's so clear he uses sarcasm. Shrugs.
Brett: Does anyone else wish that Sandy would just come out and say in a comment that he's closing comments on a posting, instead of just sending things into moderation limbo?
ReplyDeleteI imagine a busy professor of law has better things to do than play hall monitor on a blawg.
Joe: The references to treaties doesn't rebut all of this. It does suggest "treaty" has a special meaning as a matter of constitutional law with a specific rule of negotiation and ratification. But, it doesn't make executive agreements, including the examples provided, not "legally binding" or merely "traditional" and not "constitutional."
ReplyDeleteActually, the Treaty Clause was meant to allow Congress to check the president's ability to enter into legally binding international agreements.
http://www.heritage.org/constitution/#!/articles/2/essays/90/treaty-clause
Yes, I wish if rules of moderation changed, it would just be done openly.
ReplyDeleteBut, he clearly did it, and you know, can see why. What he does is let it go for a few days and then goes to moderation. He let a few more in that way.
Yeah, I'm glad he's allowing some comments. He may be losing it, but at least he's not thin skinned about it. I just hate guessing when it's gone from actual moderation to all comments just being left in moderation.
ReplyDelete"Actually, the Treaty Clause was meant to allow Congress to check the president's ability to enter into legally binding international agreements."
ReplyDeleteUh huh. So, treaty "has a special meaning as a matter of constitutional law with a specific rule of negotiation and ratification" -- for "treaties" (whatever that might be), a mixed executive and Senate process is provided. This still leaves open "executive agreements" of various types. The link provided pushes back on their breadth (which overall I'm sympathetic with -- they probably have been overused) but doesn't simply say there is no such thing.
Joe:
ReplyDeleteThe president can enter into agreements with other heads of state, but the only treaties are the law of the land and legally enforceable against the United States.
This is the legal distinction between a promise and a contract.
How about if he paid off officials for official acts which they were supposed to perform without being paid off?
ReplyDeleteLegally speaking, that's bribery too.
"Under our criminal justice system, there is no violation of law without evidence beyond a reasonable doubt."
ReplyDeleteThis applies to HRC and you'd have to retract what are then your calumnies.
If I'm a Mafioso, and to protect myself I've told my 'employees' that if I say of someone 'it'd be awful if that person had a fatal occurence,' that they should go make that happen, then even if, based upon, say, a recording of me saying that to them who then went and killed someone, there was no successfully prosecutable case, that still doesn't mean that an illegal 'hit' was just ordered.
"Legally speaking, that's bribery too."
ReplyDeleteYup. But don't expect him to know what's 'legally speaking,' for a partisan/ideologue 'the law' is something, though not fully understood, to be used a cudgel against opposing partisans/ideologues, not applied in some fair way.
Yes, legally speaking, that's also bribery. Non-legally speaking, people understand that, if a public official won't do their job unless you pay them a bribe, you're the victim.
ReplyDeleteNormatively speaking, the person handing out the money isn't necessarily in the wrong. The person taking it always is.
That's Hillary's problem here: She was the person taking the money. That looks worse than handing it over, because it generally IS worse.
Hillary doesn't have any such problem because there was no quo for the quid. If there had been, it would have been a story. Instead what we have is an attempt to paint saving the lives of thousands of people around the world as a "flaw".
ReplyDeleteIn the meantime, actual self-dealing by Trump and at least one case of apparent actual bribery get swept under the rug.
BD: "Under our criminal justice system, there is no violation of law without evidence beyond a reasonable doubt."
ReplyDeleteMr. W: This applies to HRC and you'd have to retract what are then your calumnies.
Rather, this is why my posts noting Clinton's various crimes are laid out like indictments with citations to the voluminous evidence.
Mark Field said...Hillary doesn't have any such problem because there was no quo for the quid.
ReplyDeleteThe world's plutocracy and governments did not pay the Clintons personally over $150 million and indirectly billions of dollars through their foundation for "no quo."
This "quid" is more than ample reasonable suspicion for the DoJ and the press to begin a criminal investigation to find the "quo."
Exactly Mark. With Hillary the 'case' is: her husband and her had a legally separate foundation that did a lot good globally, and, like most large international foundations (like the Gates Foundation) it drew donations from a who's who of important people. The SOS office, as one would expect, dealt with a Who's Who of important people too. Innuendo about overlap followed.
ReplyDeleteIn Trump's case there was a foundation involved in much more explicit self dealing, and where we have an actual publicly available record of using it to transfer money to public officials who subsequently dropped investigations of Trump's affairs. This is coupled with Trump's public admissions that he often paid money to public officials for preferential treatment.
If the latter were demonstrably true about HRC you'd be squealing like a raped pig. But partisans gonna partisan.
Mr. W: With Hillary the 'case' is: her husband and her had a legally separate foundation that did a lot good globally, and, like most large international foundations (like the Gates Foundation) it drew donations from a who's who of important people.
ReplyDeleteTry reading the Foundation's reports.
The Foundation does not use a standard flow through model where donations are collected and then given to various charitable organizations. In 2014, less than 6% income went to third party charitable organizations, and much of that went to celebrity organizations with high overhead. The Foundation travel budget alone out strips these contributions.
Rather, the 80.6% of income the Foundation claims they spend on "charity" actually consists of the lavish salary and travel expenses of its own staff (including Chelsea and a wide variety of cronies) to perform various "charitable work" like jetting around the world to attend conferences. Even though they do no "charitable work," the Foundation also pays for Bill and Hillary's lavish travel expenses.
The Foundation is effectively a slush fund.
http://nypost.com/2015/04/26/charity-watchdog-clinton-foundation-a-slush-fund/
http://thefederalist.com/2016/09/16/clinton-foundation-spent-6-percent-charitable-grants-2014/
Even the Democrat "fact checkers" declaring Foundation critics to be liars cannot account for the Foundation money or say whether it is spent on anything useful.
http://www.factcheck.org/2015/06/where-does-clinton-foundation-money-go/
OPM = Other People's Money. I recall an expression from my youth: "Charity begins at home." This was in the context of the Great Depression. But there was still charitable giving, as people could spare a bit to help those who couldn't help themselves. There was another motto I learned of as a child: "Gold helps those who help themselves." What about a billionaire who helps himself for his personal private obligations from charitable funds? Does God have his back?
ReplyDelete"you'd be squealing like a raped pig"
ReplyDeleteAs compared to some other sort of squealing of pigs, which is apparently quite pleasant.
Going back to the whole treaty thing ... here's a nice quick FAS discussion:
https://www.fas.org/sgp/crs/misc/97-896.pdf
Note how NAFTA etc. "were negotiated by the President and submitted to Congress under the terms of the Omnibus Trade and Competitiveness Act of 1988 (OTCA) and the Trade Act of 1974." Reference is made to Congress delegating to the President tariff bargaining authority back in 1890, which was upheld by the Supreme Court. Field v. Clark (1892). Congress has power over taxation, commerce etc. They can set rules and provide the President the power to execute them.
In Made in the USA Foundation v. United States, a lower court referenced such powers to uphold the constitutionality of NAFTA. The court of appeals said it was a political question, the line between "treaty" and "non-treaty" in this context meeting the test of that category. Thinking about it, I think it's a matter of international law changing over the years. The exact issues of what a "treaty" entails like other things not something fixed, but a changing issue.
NAFTA very well might have in the 1790s been a commercial treaty, but over the years the exact details there changed. More on executive agreements:
https://fas.org/sgp/crs/misc/RL32528.pdf
As to NAFTA, the devil is in the details regarding a President withdrawal.
Ah. Moderation.
ReplyDeleteWe are adults here. Guess we can understand what is happening without it being told to us.
more analysis: http://opiniojuris.org/2016/09/26/preparing-for-trumpxit-how-will-the-u-s-legally-withdraw-from-nafta-wto-nato
ReplyDeleteI highly value Balkinization as a site with a lot of challenging, insightful posts and comments. As a non-native speaker, it is particularly annoying when the train of thought is broken by worn-out political discussions without a justifiable connection to the issue at hand. There are plenty of other sites where you can litigate and re-litigate your beef with candidates and/or each other. I also find it unfair to burden the moderator with unnecessary hassle about admissible or inadmissible comments. I therefore would respectfully ask for a little discipline and self-restraint.
ReplyDeleteI explicitly exclude those posts that are preceded by an "off-topic" warning.
Let me hasten to add that I found the links provided by various people very helpful, indeed.
The short resumé by FAS (https://www.fas.org/sgp/crs/misc/97-896.pdf) seems particularly pertinent as regards the congressional-executive agreements. On p. 1 in footnote 5 they write:
...
"The negotiation, entry into, and implementation of trade agreements implicates the President’s Article II authority to negotiate treaties and international agreements and to conduct foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U.S. 319 (1936), and Congress’s express power to impose duties and tariffs and to regulate foreign commerce. U.S. Const., Art. I, §8, cls. 1, 3. Because of Congress’s express power in this area, the President may not impose, reduce, or effect any other change in existing duty rates through an executive agreement unless he has been delegated the authority to do so by Congress. See United States v. Yoshida Int’l Inc., 526 F.2d 560, 572 (C.C.P.A.
1975)(“no undelegated power to regulate commerce, or to set tariffs, inheres in the Presidency”)(emphasis in the original); Canadian Lumber Trade Alliance, 425 F.Supp.2d at 1357 (“Indeed, when the President exercises authority in regulating foreign commerce, he or she does so as Congress’ ‘agent.’”); United States v. Guy W. Capps, Inc., 204 F.2d 655, 660 (4th Cir. 1953)(“Imports from a foreign country are foreign commerce subject to regulation, so far as this country is concerned, by Congress alone.”)" (all bolds mine)
If I understand the fast-track authority correctly, the particular agreements have to be voted up and down by Congress. Unless there is a special provision that explicitly allows the president to rescind, I would think (s)he would exceed hir mandate as Congress' agent if (s)he would do it on hir own. (Is there one in the fast-track authority?) The same, obviously, would hold for any ensuing enabling legislation enacted by Congress.
The Ducetto may bellow "NAFTA, you are fired!", but unless he can cudgel the "ineffective" Congress into submission, it would be mainly barking.