New START Is Worthy, but Let’s Not Violate the Constitution to Save It

James Rubin

James P. Rubin, former US State Department Spokesman under Clinton

Since the Cold War ended, arms control treaties don’t get much attention—unless they get into trouble. The New Strategic Arms Reduction Treaty (START) appears to fall into that category. Senator Jon Kyl (R-Ariz.), designated as the Republican point man for the treaty, is blocking it. Kyl, conservative on such issues but usually responsible, is acting badly on this important issue, but so are the Democrats who are advocating skirting the constitutional treaty ratifying process.

Many Republicans have withheld their support for the treaty to raise the price for their acceptance. They wanted, and have already gotten, tens of billions of dollars slathered on the boondoggle that is the nuclear weapons research and production complex. In a post-Cold War world, much of this largesse is merely a welfare project for the states housing such facilities, rather than having anything to do with national security.

And as James Rubin, former assistant secretary of state during the Clinton administration, concludes in the New York Times, beefing up the nation’s nuclear weapons complex works at cross-purposes with a nuclear arms control treaty. Kyl seems to be trying to delay consideration of the treaty until Republican reinforcements arrive in the Senate next January. To get the two-thirds majority needed to ratify the treaty in the new Senate, President Barack Obama would need to get 14 Republican votes instead of the current 9. This effectively raises the price of ratification even higher; perhaps Kyl wants more money shoveled to pet missile-defense projects—again contravening the purpose of agreement. Or there is also a possibility that the Republicans simply don’t want to give Obama any success in foreign policy.

Denying Obama a victory—even if it’s good for the country—is very irresponsible. And on balance, the New START Treaty is good for the country. Signing a treaty that limits nuclear missiles to 1,550 and launchers to 700 does restrict U.S. flexibility, but it opens the door to deeper cuts in strategic (longer range) warheads and beginning to shrink the tactical (shorter range) nuclear stockpile. Although the current treaty’s reductions in nuclear missiles and launchers are not huge, it does reinstate a critical inspection system in which both nuclear powers can see what the other is up to. This transparency is imperative to ameliorate the only existential threat to the United States in its history.

Rubin, however, is so fed up with Republican obstruction on a worthy treaty that he proposes something even worse: virtually abandoning the constitutional process of treaty ratification in the Senate. In the future, Rubin proposes holding international negotiations with other countries, but then merely pledging an administration push to use ordinary U.S. legislation and executive orders, which Rubin says “may not even require legislative approval,” to enact any agreements. Rubin points out that this approach was used after the Senate rejected the Kyoto Protocol on climate change; international negotiators have continued to chase international climate agreements with the wink that they would be implemented only by ordinary domestic legislation.

As with skirting the supermajority (60 votes) needed to pass the Obamacare health legislation, this talk of avoiding a supermajority (67 votes) on the treaty in favor of a mere majority vote is pernicious. Avoiding a supermajority to pass New START is even more dangerous to the American political system than doing so in the case of health care. Avoiding a filibuster stretches Senate rules; avoiding the treaty ratification process circumvents the constitutional requirement that the Senate give consent on treaties with a two-thirds majority.

Despite Rubin’s implication that such circumvention of the U.S. Constitution is a new and radical idea, the Congress’s treaty-affirming power has been eroding since the 1840s. In June of 1844, a treaty of annexation between the United States and the then Republic of Texas failed in the Senate. Then in February of 1845, President John Tyler, violating his normally strict constructionist approach to the Constitution, circumvented the two-thirds majority requirement in the Senate and got Texas admitted to the Union by a joint resolution adopted by only a simple majority in each house of Congress. This evasion of the constitutional treaty ratifying process was not the last. Executive agreements between the U.S. president and the chief executives of other countries—some of which congressional majorities have passed and some of which haven’t had legislative approval at all—continue to undermine this critical constitutional requirement.

Ivan ElandAs with Congress’s other main powers—declaring war and controlling the federal budget—its treaty-approving role has eroded. Although New START is important and worthy, circumventing the nation’s Constitution to bring it to fruition is not worth it.

Ivan Eland

This article first appeared in The Independent Institute and is republished with permission.


  1. Joe Weinstein says

    Yes, there is a constitutional requirement, for a 2/3 Senate majority for ratifying an agreement termed a ‘treaty’. As Eland himself takes pain to demonstrate, this requirement is easily circumvented by making either the agreement itself – or provisions which amount to its implementation – not a treaty at all. He goes on to note that this sort of circumvention is frequent and of long standing.

    It is therefore difficult to take seriously his claim that somehow, just for the special case of START, it makes any difference that the agreement be implemented, if at all, only as a ratified ‘treaty’.

    Anyhow, if this theoretical Senatorial power and prerogative IS so important, then surely the Senate itself could and should take the lead in making the theory have some practical import.

  2. marshall says

    Wonder what your thoughts are on the state of west Virginia being in accord with the laws of of constitution? I think a wink and a nod happen there also. It is not good, no matter how good you think it will work out, to do such things. Remember FDR stacking the high court with additional judges? We could have built a whole new building by now to hold 50 plus judges on the high court that various presidents might have appointed. I have to hold my nose many times when I vote as I try to pick the lessor of the two not ready or not qualified for the job for which they are running.

    It is part of being who we are..not perfect, but better than anything known so far. I know this as I have lived in several countries in both Asia and Europe, and not at the level that our governmet does when they visit, I lived with those not in power.

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