Article IV Of The Constitution

[ThomWV]

This is the second of three paragraphs which make up Article IV of our Constitution.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Notice it doesn't say that the President may modify treaties, nor may he abandon them.

So what difference can this law bush wants to retroactively make the torture he has ordained legal? Are the Geneva conventions not considered treaties between the states which have signed it?

[texpatriot2004]

1. K & R nm

[Avalux]

2. Yes, they are considered treaties between the signatories -

treaties of humanitarian law. Of course, Bush has disregarded the Constitution before, don't see why he'd start paying attention to it now. Congress and the SC must abide by the Constitution and stop him.

[bryant69]

3. President Bush is above the Law

But also, this section may not apply because the Congress has the power to ratify or reject treaties. That's why he is going to congress - he can't do it on his own (although, apparently, he did).

Bryant
Check it out --> http://politicalcomment.blogspot.com

[indepat]

5. And all Congresspersons and other Amerikans who support must be o.k.

with that arrangement and therefore hate our Constitution, this Republic IMNSHO. Madness, sheer madness.

[ThomWV]

6. The Conventions Are Already Ratified

As I see it the Congress has already ratified the treaty that Bush has rejected. The problem with that, as you say, is that only the Congress has the power to 'reject' treaties so that for Bush to do so would be a violation of both the treaty itself and his oath to uphold Article IV of the Constitution.

[earth mom]

17. President? You mean Resident. nt

[havocmom]

4. junta hope law retroactively making torture legal will buy some time

Not unlike Alberto & Harriet saying the torture WAS legal if the pResident says it is, just a weak excuse they hope will confuse enough people to buy them time to come up with next argument

Like: Saddam = 9/11 - what, he didn't do it? Ya sure?

OK, Saddam = WMD & Mushroom clouds. Fight 'em there, not here

FINE! How about Saddam = gas and kill? We're sure about THIS one

ALRIGHT, then, Saddam = he tried to kill my daddy? Gotta kick his ass! Bring it one!

OK, OK, try this one: Saddam hates democracy and we're torturing and killing people just like SADDAM DID, but they all have purple fingers and it's better to die in a democracy than under a dictator....

[Jacobin]

7. He'll just do a retroactive 'signing statement'

And claim he is a 'unitary executive' and laugh at congress.

I wish we had a congress. Congress is an important body.

[Uncle Joe]

24. Unitary Executive!?

All this time, I thought he said Urinary Executive, because he has such a piss poor administration.

[Hosnon]

8. Article VI, not IV. It needs to be pointed out that Article VI is not as

strong as most people think it is. Since Treaties (big "T", meaning U.S. Constitutional Treaties) only require 2/3 of the Senate and the signature of the President, they are only supreme law of the land to the extent that they do not contradict the Constitution (the theory being that the Constitution has an explicit amendment process and it includes more than 2/3 of the Senate plus the President).

This is why the cornerstone of the Administration's argument is "war powers" and "commander-in-chief." Any powers that Bush has under the Constitution to conduct war cannot be altered by an Article VI Treaty. His actions may be illegal under international law but they will not be illegal under U.S. law.

This needs to be pointed out regarding Article VI.

Now, by having Congress define the Geneva Conventions, Bush will protect himself under U.S. law. Furthermore, I would like to see the small print of the Conventions regarding interpretation. At the very least, a lenient interpretation by the U.S. Congress cannot hurt Bush's argument that he did not violate the Conventions.

[treestar]

10. Where does the law say that?

The Treaties are the law of the land; only Congress can declare war.

[Hosnon]

11. The U.S. Supreme Court has said that. And only Congress can declare

war but the President has his C-in-C powers if we are attacked (which is the Administration's argument since 9/11).

[Avalux]

12. You've thrown a lot of assertions out there -

please provide links to back them up. Thanks.

[Hosnon]

13. Limitations on Article VI Treaties:

"It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V."

Justice Black (Reid v. Covert, 77 S. Ct. 1222)

Edit: Need to point out though that this only concerns legality under U.S. law.

[Avalux]

15. Hmmmm.....well, considering the SC upheld Hamdan vs. Rumsfeld -

I'd say the Geneva Conventions is the law of the land. Any attempt to alter common article 3 will be a violation - the SC told the executive branch they cannot set their own rules. And that quote you've given applies to anything not currently covered by the Constitution that would require amending it.

[Hosnon]

18. My original reply was primarily to point out the realities of Article VI.

I focused not on specific application but on general theory.

I'm not sure how the theory applies to the Geneva Conventions. It is quite likely that the Supreme Court has ruled that the powers which it proscribes are not given the President under the Constitution. That would not create a conflict.

When an Article VI Treaty and the Constitution conflict, the Constitution wins. That was my main point. Whether or not there is a conflict between the Conventions and the Constitution is an entirely different question, and one which is probably extremely complex.

As far as your comment on the quoted statement, I see no such qualification in the case.

[endarkenment]

25. This is all a grey area.

"Treaty Termination


The Constitution is silent about how treaties might be terminated. The breaking off of two treaties during the Jimmy Carter administration stirred controversy. In 1978, the president terminated the U.S. defense treaty with Taiwan, in order to facilitate the establishment of diplomatic relations with the People's Republic of China. Also in 1978, the new Panama Canal treaties replaced three previous treaties with Panama. In one case, the president acted unilaterally; in the second, he terminated treaties in accordance with actions taken by Congress. But clearly it seems that the right to terminate belongs to the executive, the sole branch of government that communicates with foreign governments. Only once has Congress terminated a treaty by a joint resolution; that was a mutual defense treaty with France, from which, in 1798, Congress declared the United States "freed and exonerated." In that case, breaking the treaty almost amounted to an act of war; indeed, two days later Congress authorized hostilities against France, which were only narrowly averted.


Status as Law


By virtue of the Constitution's supremacy clause (Article VI, clause 2) a treaty that is concluded compatibly with applicable constitutional requirements may have status as the "supreme law of the land," along with federal statutes and the Constitution itself. A treaty does not become effective as U.S. domestic law automatically, however, upon its entry into force on the international level. Instead, this occurs only where the instrument is "self-executing" and operates without any necessity for implementing legislation."

http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm

Bush could just terminate the GC by executive fiat. I doubt he wants to do that. He would of course prefer that congress passed his torture and kangaroo kourt bill. I fear that indeed passing such legislation would simply abolish as 'the law of the land' the conflicting sections of the GC.

[Hosnon]

28. I think the best answer to the treaty termination question, given the

absence of an explicit mechanism, is that it requires 2/3 of the Senate plus the President. It, in my opinion, should work just like Constitutional Amendments. Amendments aren't "erased" from the Constitution, they are nullified by subsequent Amendments (requiring the same conditions).

I don't think the law is settled but the President alone should not be able to cancel an Article VI treaty.

[endarkenment]

30. You might think that but

there is precedent for the executive doing so by fiat. Ratification is an explicitly defined process, termination is not. Carter, for example, terminated the panama canal treaty by executive order.

[Hosnon]

31. Right...but I don't think the Supreme Court has chimed in definitively

yet.

One would hope, since they are the "Guardians of Logic", that they would rule that something requiring steps A, B and C to be legit cannot be undone via only step B, in the absence of an explicit mechanism.

In any event, my point was that that is what I would do if I were in charge.

[ThomWV]

14. Then why does it say "notwithstanding" the Constitution?

It seems clear enough to me that if the article proclaims itself to be dominant over the rest of the constitution by use of the word 'notwithstanding' toward the paragraph's end then your argument can not be sustained.

[Hosnon]

19. It's not my argument...it's the Supreme Court's. nt

[treestar]

22. I think it is referring to the Constitutions of States

Of one of the 50 states, but I still don't see what the OP means - the President's powers are not said to be dominant over the treaty clause - if some statute in the War Powers Act purports to do that, it may be unconstitutional.

[Hosnon]

27. The President's powers aren't dominant over the treaty clause - they both

have equal weight. However, treaties made pursuant to the treaty clause are inferior to the rest of the Constitution. If such a treaty conflicts with a constitutional provision (such as Executive power), the constitutional provision prevails.

[treestar]

9. Would love to see how Gonzalez tries to get around that one

Logical fallacies and non-legal arguments like "we need this to fight the war on terra," probably.

[beyurslf]

16. Violation of the Geneva Convention is illegal both internationally and

domestically and is an impeachable offense.

[Bandit]

23. But who can impeach a "Unitary Executive"?

That title pretty much says it all.

[endarkenment]

26. Legislation would throw that truth into doubt.

It is entirely unclear what the situation would be if congress passed a law that directly contradicted article 3 of the GC. I think a good case can be made that the new law would legalize these actions. Bush can also unilaterally abolish the entire treaty.

[madrchsod]

20. yes-- why do people assume he can?

because he wants to and he says he can? he can not nor can the congress. i fail to understand why the media,the congress and many others believes he can. just where in the hell are the democrats? why don`t they call his bluff?

[Gregorian]

21. Maybe they're the same kind as the Native Americans had with us.

You know, the kind we can ignore.

[Hosnon]

29. The Geneva Conventions are considered treaties, in the international

sense. If they were ratified by 2/3 of the Senate, they are Treaties, in the U.S. Constitutional sense. I believe the Geneva Conventions satisfy both definitions.

If Bush can get Congress to more specifically define the Geneva Conventions, it would probably protect him from liability under U.S. law. Furthermore, the Congressional interpretation would provide evidence that the Administration didn't violate the Geneva Conventions under international law.

He's definitely trying to cover his ass...