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The Charlie Savage survey: Treaties are law

The New York Times' Charlie Savage is an essential reporter on issues of presidential power. He does us all a great service today by surveying the presidential candidates about their views of such power. (President Obama—who answered Savage's 2008 survey, declined to answer; so did Rick Santorum and Michele Bachmann.) I'll be dipping in and out of the questions today with an observation or two.

Like this one. Savage asked: "Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard treaties to which the United States is a party?"

There are some bullshit evasions. (Rick Perry: “'Disregard' is a vague and subjective term.") Outside of Ron Paul—who will get his own blog post on this matter—Mitt Romney offers the most cogent answer:
The president’s most important obligation is to protect the United States in a manner consistent with the Constitution and U.S. law. The president should also heed binding international agreements, so long as those agreements do not impinge upon the president’s constitutional duties or authorities granted by applicable statute.
The suggestion here is that the United States' international treaties are subordinate to domestic law. Which sounds reasonable, except for one thing: The United States treaties are binding law.

That's what the Constitution says, in Article VI:
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.
Treaties aren't lesser-than, under the Constitution: They're the "supreme law of the land." It's possible for both laws to conflict, or to be un-Constitutional. But for a president to disregard a treaty means that he's ignoring the judgement of (probably) both a predecessor president and two-thirds of the Senate that the treaty was constitutional and appropriate. To quietly ignore a treaty—as the Bush Administration did when it tortured terrorist suspects—is to quietly break the law. Romney's answer elides that important truth.


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