[Congressional Record Volume 148, Number 73 (Thursday, June 6, 2002)]
[House]
[Pages H3232-H3238]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1030
                        PRIVILEGES OF THE HOUSE

  Mr. KUCINICH. Mr. Speaker, under rule IX, I rise to a question of the 
privileges of the House, and I offer a resolution.
  The SPEAKER pro tempore (Mr. LaHood). The Clerk will report the 
resolution.
  The Clerk read the resolution, as follows:

       Whereas the President's constitutional duty is to 
     faithfully execute the laws of the United States, and
       Whereas, under the Constitution, treaties have the status 
     of ``supreme law of the land,'' equally with other laws, and
       Whereas, the President does not have the authority to 
     repeal laws, and
       Whereas, the President is not authorized to withdraw 
     unilaterally from treaties in general, and the Anti-Ballistic 
     Missile Treaty in particular, without the consent of 
     Congress, and
       Whereas, the President unilaterally withdrew the United 
     States of America from the Anti-Ballistic Missile Treaty of 
     1972 without seeking or obtaining the consent of either house 
     of Congress; therefore be it
       Resolved, That the President should respect the 
     Constitutional role of Congress and seek the approval of 
     Congress for the withdrawal of the United States of America 
     from the Anti-Ballistic Missile Treaty.

                             Point of Order

  Mr. HYDE. Mr. Speaker, I make a point of order that the resolution 
does not constitute a question of privilege under rule IX of the rules 
of the House.
  Mr. Speaker, I would like to speak specifically to the parliamentary 
issue before the House, whether the resolution offered by the gentleman 
from Ohio constitutes a question of privilege. The starting point for 
this inquiry is the rules of this institution, and in particular rule 
IX which governs questions of privilege.
  Rule IX states that in order for a resolution to constitute a 
question of privilege of the House, it must deal with matters 
``affecting the rights of the House collectively, its safety, dignity 
and the integrity of its proceedings'' or ``affecting the rights, 
reputation and conduct of the Members, Delegate or the Resident 
Commissioner, individually, in their representative capacity only.''
  An important clarification of this rule is set forth in section 702 
of the House Rules and Manual. That section states that, under 
applicable House precedents, ``rule IX is concerned not with the 
privileges of the Congress, as a legislative branch, but only with the 
privileges of the House, as a House.''
  Mr. Speaker, in this connection I think it is important to emphasize 
the gentleman's resolution relates to the termination of a treaty. As 
we all know, the Constitution gives the House of Representatives no 
role in the approval of treaties. Under article 2, section 2, clause 2 
of the Constitution, the Senate alone has the prerogative to review 
treaties and approve their ratification by the President. Until the 
Senate grants its approval, a treaty may not be ratified and enter into 
force.
  In the case of the antiballistic missile, or ABM, treaty, which is 
the subject of this resolution, the Senate approved ratification of the 
treaty on August 3, 1972, and President Nixon ratified it 2 months 
later. Once this happened, the ABM treaty became the supreme law of the 
land pursuant to article 6, clause 2 of the Constitution. All of this 
happened without any involvement by the House of Representatives, which 
is as it should be under the Constitution. In addition, the treaty 
itself under article 15 states that ``each party shall, in exercising 
its national sovereignty, have the right to withdraw from this 
treaty.''
  The sponsor of this resolution argues that even though the House of 
Representatives had no role in bringing the ABM treaty into force, we 
somehow have an indispensable constitutional role in deciding whether 
to approve the termination of the treaty. I could understand someone in 
the Senate making such an argument about the prerogative of the Senate 
in such matters, but I am mystified how anyone could read such a 
prerogative into the Constitution for the House of Representatives.

[[Page H3233]]

  More to the point, the Supreme Court has told us that not even the 
Senate has such a prerogative. In 1979 in the case of Goldwater v. 
Carter, the Supreme Court rejected a claim by former Senator Goldwater 
that President Carter had acted unconstitutionally by abrogating our 
mutual defense pact with Taiwan without first obtaining the Senate's 
permission to do so. I happen to share some of Senator Goldwater's 
reservations about President Carter's action with regard to our 
commitments to Taiwan. But disagreeing with the substance of the action 
is very different from claiming that the action itself was 
unconstitutional. That is in effect what the Supreme Court told Senator 
Goldwater when it threw his case out of court.
  I would urge the sponsor of this resolution to take that lesson to 
heart. He certainly has the right to disagree with President Bush's 
decision, and I would welcome a debate on any properly framed 
legislation he might want to offer addressing that decision, or 
questions of missile defense more generally. But it ill serves this 
institution, to say nothing of the Constitution, to accuse the 
President of violating the Constitution when Supreme Court precedent 
and 215 years of practice make clear that the President was fully 
within his rights to act as he did.
  Out of respect for this institution and our Constitution, I would 
urge the gentleman to withdraw his resolution. Failing that, I would 
urge the Chair to rule the resolution out of order, and I would urge my 
colleagues to sustain that ruling if appealed.
  The SPEAKER pro tempore. Does the gentleman from Ohio wish to be 
heard?
  Mr. KUCINICH. Mr. Speaker, I wish to be heard on the point of order.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. KUCINICH. Mr. Speaker, I would like to begin by thanking my good 
friend from Illinois and letting him know that this is not about the 
ABM treaty. This is really about the role that this institution has in 
a democracy. Mr. Speaker, almost 226 years ago, the Founders of this 
great Nation cast off the yoke of imperialism and declared their 
independence from the tyranny of King George III. Soon after, these 
United States weaved from the sturdy threads of justice and democracy a 
Constitution to serve as the ultimate guardian of rule by the people 
and for the people. Over two centuries later, these documents still 
comprise the fabric of our Republic.
  Unfortunately, Mr. Speaker, this fabric is today being steadily 
frayed by an executive that does not respect the constitutionally 
protected role of this Congress in the governance of our Nation. The 
President insists that he has the unilateral authority to terminate 
treaties; but article 1, section 1 of our Constitution clearly states, 
quote, ``all legislative powers shall be vested in a Congress of the 
United States which shall consist of a Senate and a House of 
Representatives.''
  The Constitution empowers Congress to establish laws and charges the 
President with carrying out these laws. Nowhere in this Constitution 
does it give the President the authority to repeal laws. Only Congress 
has the authority to undo its legislative work. Yet this is exactly 
what the President has done, unilaterally repeal a law, the ABM treaty, 
that was constitutionally enacted by joint action of the legislature 
and executive, Senate ratification and Presidential signature.
  The Constitution sets up the legislature and the executive as coequal 
and separate branches of government. Allowing the President to execute 
only those laws he agrees with obliterates our carefully constructed 
system of checks and balances. If the President acts both as the maker 
and the executor of laws, why have a Congress at all? Such action was 
so offensive to liberty that Thomas Jefferson cited it in the 
Declaration as a grievance warranting disaffiliation with Britain. 
Thomas Jefferson chafed at the actions of King George and others, 
quote, ``suspending our legislatures and declaring themselves vested 
with power to legislate for us in all cases whatsoever.''
  Mr. Speaker, your decision today to grant privilege to this motion 
should take into consideration the grave challenge to the Constitution 
the President has made in his unilateral withdrawal from a treaty; but 
your decision, Mr. Speaker, will and must turn on House precedent. My 
motion to raise a question as to the privileges of this House under 
rule IX falls under section 702 of the rule and, Mr. Speaker, section 
702 of this rule, which I have highlighted here in green in the 
Jefferson manual, and I would ask my colleagues to look at this because 
these are the rules that we play by. Section 702 of this rule states, 
``The constitutional prerogatives of the House also include its 
function with respect to treaties.'' I am going to read that again. The 
constitutional prerogatives of the House, of the House, also include 
its function with respect to treaties.
  Hind's notations in this book contains 36 precedents. Thirty-five of 
them do not have any bearing on this issue today, but one of them does, 
Mr. Speaker, and I believe that one establishes the precedent for my 
motion today. I refer specifically to notation 1505. On March 2, 1835, 
the House agreed to the following resolution which read in part, 
``Resolved, that in the opinion of this House, the treaty with France 
of the 4th of July, 1831, should be maintained.''
  Why did the House pass a resolution stating that a treaty should be 
maintained? The treaty with France was done to settle claims by the 
U.S. against France for the confiscation of American vessels and cargo. 
At the time France confiscated American property, our two countries 
were hostile towards each other. The treaty of 1831, then, was an act 
of diplomacy intended to prevent the resumption of hostilities through 
the diplomatic resolution of claims. President Andrew Jackson was 
unhappy with French compliance with the treaty, which in his opinion 
was too slow. President Jackson, according to ``A Diplomatic History of 
the American People'' by Thomas Bailey, was thoroughly aroused. ``The 
French,'' he was reported to have shouted, ``won't pay unless they're 
made to.'' He declared that Congress should authorize the Federal 
Government to seize French property.
  According to another source, ``A Diplomatic History of the United 
States'' by Samuel Flagg Bemis, ``Further negotiation,'' Jackson 
declared, ``was out of the question.'' In other words, Mr. Speaker, 
President Jackson wanted to withdraw from the treaty with France. The 
House, wanting to support the President, gave the President the 
authority to make contingent preparations to meet any emergency growing 
out of relations with France. But, and this is a critical point, Mr. 
Speaker, the House did not authorize the President to withdraw from the 
treaty. Rather, the House asserted the opposite, that the treaty should 
be maintained. Congress insisted that the President not rule out of 
question further negotiation with France as his rhetoric and actions 
suggested he wanted to.

                              {time}  1045

  Instead, Congress in effect told him he had to continue negotiating 
with France.
  Now, I ask my colleagues today, who here has the courage, like our 
vaunted predecessors in this hallowed body, to assert Congressional 
prerogative? Who here will challenge a power grab by the chief 
executive?
  The world's geopolitical trash bin is already littered with treaties 
and agreements unilaterally discarded by the United States under this 
administration. Congressional requests for testimony and information 
are routinely ignored. Our insistence on our oversight role is scoffed 
at. We must assert our role in this treaty withdrawal in order to 
prevent further erosion of constitutional authority.
  Mr. Speaker, in 1835 the House of Representatives asserted its 
prerogative with respect to treaties, and that law is why this 
reference is in this manual. It did not permit the President to 
unilaterally withdraw from the treaty with France as he clearly 
intended to do and as he stated his intention to do so. Instead, 
through action in this House, Congress affirmed that the treaty with 
France be maintained. This episode, Mr. Speaker, set a precedent for 
this House that bears directly on this resolution today.
  My resolution states, ``Resolved, that the President should respect 
the constitutional role of Congress and seek the approval of Congress 
for the withdrawal of the United States of America from the 
Antiballistic Missile Treaty.'' In other words, before the President

[[Page H3234]]

unilaterally withdraws the United States from a treaty, he should seek 
approval of the Congress, as the Congress of 1835 asserted.
  Mr. Speaker, it is my belief that the privileges of this House as set 
forth by a precedent in 1835 have been violated by the President. My 
motion claims that a privilege of this House has been violated, and it 
is a privilege that sits on 167 years of precedent.
  Mr. Speaker, indeed, in more than two centuries, only a handful of 
treaties have been unilaterally terminated by the President. In the 
vast majority of those cases, one or both of the Houses of Congress 
consented.
  My motion, Mr. Speaker, deserves to be heard today. Supreme Court 
Justice Frankfurter ruled 50 years ago, ``The accretion of dangerous 
power does not come in a day. It does come, however, from the 
generative force of unchecked disregard of the restrictions that fence 
in even the most disinterested assertion of authority.''
  Mr. Speaker, at issue today are not the specifics of the ABM treaty, 
the merits of missile defense or any other policy considerations. At 
issue is whether this House of Representatives, this Congress, will 
stand up to an imperial President.
  ``The history of the present king of Great Britain,'' wrote Thomas 
Jefferson in this declaration, ``is a history of repeated injuries and 
usurpations.''
  How many injuries and usurpations must this Congress endure before it 
fights back? How much longer will we allow this executive to trample on 
our Constitution? I urge the Speaker to allow this motion to be heard, 
and I urge my colleagues to defend this document, our Constitution of 
the United States, which establishes the centrality of the role of this 
Congress.
  The SPEAKER pro tempore (Mr. LaHood). Does the gentleman from 
Illinois (Mr. Hyde) wish to be heard further on the point of order?
  Mr. HYDE. I would like to be heard further on my point of order.
  Mr. Speaker, if the gentleman from Ohio, who is my good friend and 
someone for whom I have the utmost respect, but if his theory has any 
substance, then the Mutual Defense Treaty with Taiwan which President 
Carter abrogated unilaterally must have undergone resurrection. It was 
improperly terminated then, and how many treaties over the years have 
been terminated without the involvement of the House that have now 
experienced Easter?
  Now, it is a matter of fact that the treaty itself provided a means 
for revocation and the Senate ratified the treaty in all of its 
verbiage in all the four corners of the document, and article 15, 
section 2, as ratified by the United States Senate pursuant to the 
Constitution, says, ``Each party shall in exercising its national 
sovereignty have the right to withdraw from this treaty,'' et cetera, 
et cetera.
  The President was required to give 6 months notice, he did give 6 
months notice, and June 13 of this year equals the 6-month period where 
the revocation becomes final.
  So the Congress was involved in the treaty ratification pursuant to 
the Constitution, which gives the House no role in ratifying treaties. 
The rule the gentleman referred to talks about the House's role in 
implementing treaties through legislation. Yes, we have that role, we 
always have. But that is a far cry from saying we must approve a 
termination of a treaty which, by its terms, provided a process for 
revocation by the President.

  Mr. KUCINICH. Mr. Speaker, may I respond.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. KUCINICH. Mr. Speaker, my good friend from Illinois would be 
interested to hear the words of a constitutional law scholar who wrote 
in the New York Times on August 29, 2001, and this is from Professor 
Bruce Ackerman, he said, ``Presidents can't terminate statutes they 
don't like. They must persuade both houses of Congress to join in a 
repeal. Should the termination of treaties operate any differently? The 
question first came up in 1798. As war intensified in Europe, America 
found itself in an entangling alliance with the French under treaties 
made during our own revolution. But President John Adams did not 
terminate these treaties unilaterally. He signed an act of Congress to 
declare the treaties heretofore concluded with France no longer 
obligatory on the United States. The next case was in 1846. As the 
country struggled to define its northern boundary with Canada, 
President James Polk specifically asked Congress for authority to 
withdraw from the Oregon Territory Treaty with Great Britain and 
Congress obliged with a joint resolution. Cooperation of the 
legislative and executive branches remained the norm, despite some 
exceptions, during the next 125 years.''
  That is from constitutional scholar Bruce Ackerman.
  Furthermore, citing my good friend from Illinois who spoke of 
Goldwater versus Carter, another constitutional scholar, Peter Weiss, 
said in a work called The President, the Constitution and the ABM 
Treaty, ``It is generally believed that Congress lost this case, 
Goldwater versus Carter, precluding further challenges to unilateral 
presidential termination. But as a vast number of commentators have 
pointed out and as the following analysis will show, this is a vast 
oversimplification of the extraordinary complex set of judicial 
rulings. In fact, Congress' role in treaty termination is very much 
alive. As Chief Judge Wright of the D.C. Circuit, quoted with approval 
by Justice Rehnquist of the Supreme Court, said in the Goldwater case, 
Congress has a variety of powerful tools for influencing foreign policy 
decisions that bear on treaty matters. In the first stage of the 
constitutional debate between 24 members of Congress and President 
Carter, Judge Oliver Gasch of the District Court of the District of 
Columbia District found that the plaintiffs had standing to invoke the 
aid of his court and their suit was not barred by the political 
question doctrine. In approaching the substantive question of treaty 
termination authority, on which the Constitution is silent, Judge Gasch 
first reviewed the history of two centuries of treaty termination. He 
found that, while there have been some apparently unchallenged 
instances of unilateral termination by the President, most of these 
involved `commercial situations where the need for the treaty or the 
efficacy of it was no longer apparent.' ''
  More significantly, Mr. Speaker, he found out that ``The great 
majority of the historical precedents involved some form of mutual 
action whereby the President's notice of termination received the 
affirmative approval of the Senate or of the entire Congress.''
  I want to conclude by stating this. He says, ``The President invoked 
his foreign affairs power in support of his position,'' citing the 
famous, or infamous, depending on one's views, dictum in Curtiss-
Wright, that he is ``the sole organ of the Federal Government in the 
field of international relations.''
  But that case involved an executive agreement, not a treaty, and 
Judge Gasch dismissed the argument in the following terms: ``While the 
President may be the sole organ of communication with foreign 
government, he is clearly not the sole maker of foreign policy. In 
short, the conduct of foreign relations is not a plenary executive 
power.''
  Mr. HYDE. Mr. Speaker, may I be heard further?
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. HYDE. Mr. Speaker, the Constitution, section 2, says he shall 
have the power, by and with the advice and consent of the Senate, to 
make treaties, provided two-thirds of the Senators present concur.
  I have looked through this document. It does not say a single blessed 
thing about revocation or termination of treaties. It talks about the 
making of them, and it is the Senate who advises and consents, with 
two-thirds in support.
  Now, I would like to ask my dear friend if there is any merit or 
substance to his position, how many votes of the House will it take to 
ratify a termination and where do you find that?
  The SPEAKER pro tempore. The Chair will hear the gentleman from 
Illinois, but Members should not be yielding back and forth.
  Do any other Members wish to be heard?
  Mr. KUCINICH. Mr. Speaker, I would like to answer the gentleman from 
Illinois.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. KUCINICH. Mr. Speaker, the gentleman from Illinois speaks to the 
Senate's ability to make treaties.

[[Page H3235]]

  Mr. HYDE. Ratify.
  Mr. KUCINICH. Ratify treaties. But it does not speak to the 
President's authority to break treaties which he has no authority to 
do, as the treaty is a law.
  Mr. HYDE. Mr. Speaker, if I may be heard further, but the treaty 
itself, Mr. Speaker, provides a mechanism for terminating the treaty, 
and that treaty was ratified by a two-thirds vote of the Senate, which 
involved the House constitutionally. So, I just do not see what the 
gentleman's complaint is.
  The SPEAKER pro tempore. The Chair would remind Members that they are 
to make their points to the Chair.
  Mr. KUCINICH. Mr. Speaker, my good friend, the gentleman from 
Michigan (Mr. Kildee), points out that in article VI it says, ``This 
Constitution and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made,'' and all treaties made, ``or 
which shall be made under the authority of the United States, shall be 
the supreme law of the land.''
  It is a law and the President cannot unilaterally break a law. It is 
not his right under the Constitution.
  The SPEAKER pro tempore. Does the gentleman from Illinois wish to be 
recognized?
  Mr. KIRK. Mr. Speaker, I seek to be recognized on the point of order.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. KIRK. Mr. Speaker, I rise to support the gentleman from Illinois 
(Chairman Hyde) in his objection on this motion.
  The gentleman from Ohio refers to House rule 9 preserving the 
integrity of the House, but he does not refer to article II of the 
Constitution, which clearly places the power to ratify treaties not in 
this body, but in the Senate.

                              {time}  1100

  He does not refer to the text of the ABM treaty, which reads as 
follows, in article 15, part 1: ``Each party shall, exercising its 
national sovereignty, have the right to withdraw from this treaty if it 
decides that extraordinary events related to the subject matter of the 
treaty have jeopardized its supreme interest. It shall give notice of 
its decision to the other party 6 months prior to the withdrawal from 
the treaty,'' which the President has done.
  This power is given directly to the President to respond to increased 
threats from missiles by withdrawing from the outdated 1970s document.
  This motion by the gentleman from Ohio (Mr. Kucinich) ignores settled 
Supreme Court decisions regarding the abrogation of the treaty with 
Taiwan. This motion does not refer to the SHAHAB III Iranian missile 
program, the Iraqi Scud program, the North Korea No Dong missile 
program, all pointed at the U.S. Armed Forces. It makes no reference to 
the 39 Scud missiles that fell on Israel and the growing missile threat 
to our Israeli allies.
  Under the terms of the Constitution, giving this power to the Senate, 
not to the House, in a treaty which specifically allows the President 
to withdraw from it, and relevant Supreme Court decisions regarding the 
abrogation of the treaty, and in light of the growing missile threat 
from rogue nations to the United States and our allies, the President 
has duly executed this authority and the House has no role.
  In sum, Mr. Speaker, this is a treaty, not a law. A treaty should be 
regarded as a statute, especially with regard to implementing 
legislation requiring House action. That is not present here, and the 
motion should be ruled out of order.
  The SPEAKER pro tempore (Mr. LaHood). Does any other Member wish to 
be heard?
  Mr. NADLER. I do, Mr. Speaker.
  The SPEAKER pro tempore. The Chair recognizes the gentleman from New 
York (Mr. Nadler).
  Mr. NADLER. Mr. Speaker, this is a very, very important debate. I 
want to commend the gentleman from Ohio (Mr. Kucinich) for bringing 
this resolution before the House.
  I would direct my remarks particularly to my friend, the gentleman 
from Illinois (Mr. Hyde), the distinguished chairman of the Committee 
on International Relations.
  There are two texts that are key here. One is the provision in 
article 6 of the Constitution that the gentleman from Ohio read a few 
minutes ago: ``The Constitution and the laws of the United States, 
which should 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.''
  A treaty is a law, in exactly the same sense as any other law made 
pursuant to the Constitution of the United States. It is treated 
exactly the same. That is the first point.
  The gentleman from Illinois read from the ABM treaty, and he read a 
sentence that says, and I do not have the exact words, and the 
gentleman from Illinois may wish to give me the exact words, but the 
parties shall have the authority to withdraw from the treaty. I think 
that is what the gentleman read, that the ``parties'' shall have the 
authority to withdraw from the treaty.
  But who are the parties? The party is the United States, not the 
President. Indeed, the President, who signed it, Richard Nixon, I 
think, would we say that only Richard Nixon has the authority to 
withdraw from the treaty, or Richard Nixon's successors? No, the 
parties to the treaty are a country. The United States signs the 
treaty. Someone may sign on behalf of the United States, but the United 
States is the party to a treaty; so the United States may, according to 
its constitutional processes, whatever they may be, and that is what we 
are discussing here, withdraw from a treaty.
  So that language in the treaty is not particularized to the 
President. The question is: How does the United States withdraw from a 
treaty? I submit this is a very important debate and should not be 
ruled out of order. It may be the resolution, it may be that we need 
further study of this.
  Maybe one could make a case, I do not think so, but maybe one could 
make a case that rather than a vote of both Houses to withdraw from the 
treaty, we should need a two-thirds vote of the Senate, because that is 
how we got into it. I would not think so, but it may be.
  But the fact is, it is the law. The Constitution in article 6 says 
that the treaty which shall be made under the authority of the United 
States shall be the supreme law of the land. We cannot permit, in a 
democratic society, the President by himself or any other person by 
himself to repeal a law. That is not our system.
  It is, frankly, puzzling to me, it has been puzzling for a long time, 
and I think this opens a number of questions, that we have various 
trade treaties which do not get two-thirds votes in the Senate and 
require votes in the House and Senate. I do not understand why they are 
not treaties. There are provisions in the Constitution that we seem to 
have conveniently forgotten about.
  I think that this provision is very clear: a treaty is a law, exactly 
the same as any other law. It can be repealed in the same way, and the 
language of the gentleman from Illinois, that the distinguished 
chairman cited in the treaty itself, simply says the parties may 
withdraw from the treaty; but the party in this case is the United 
States.
  The parties it refers to are the United States and Russia and China; 
China did not sign it, but France, and whoever else signed the treaty. 
A party to a treaty has always been held in law to be the country, not 
the individual who signed on behalf of the country.
  The SPEAKER pro tempore. The gentleman recognizes the gentleman from 
Illinois (Mr. Hyde).
  Mr. HYDE. Mr. Speaker, the gentleman reminds us that a treaty is the 
supreme law of the land, and then says that the President cannot 
abrogate the law unilaterally without some legislative action.
  I suggest that the President has followed the law to the letter. The 
law is in the treaty. The treaty itself provides a mechanism for 
withdrawing from the treaty: ``Each party shall, in exercising its 
national sovereignty. . . . '' How do we exercise our national 
sovereignty? The gentleman would suggest a plebiscite throughout the 
country.
  The very words of the treaty, which are the supreme law of the land, 
have been observed by the President. So that argument is a nullity.
  Secondly, do all Members, and I am asking this rhetorically, do all 
Members concede the Taiwan defense treaty as still valid and that 
President Carter's termination of it was illegal, and of no force and 
effect? They have

[[Page H3236]]

to hold that position if they hold the position they are arguing today.
  I submit this is not a privilege of the House.
  The SPEAKER pro tempore. The Chair recognizes the gentlewoman from 
Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Speaker, let me acknowledge the 
distinguished gentleman from Illinois (Mr. Hyde) for his recounting of 
the past history with the Taiwan agreement. I might not be quoting 
specifically from the Constitution, but past errors do not suffice for 
allowing us to continue in that path.
  What we have not done, Mr. Speaker, is to focus on the language that 
the distinguished gentleman from Ohio (Mr. Kucinich) has offered. The 
language specifically said: ``Resolved, that the President should 
respect the constitutional role of Congress and seek the approval of 
Congress for the withdrawal of the United States of America from the 
antiballistic missile treaty.'' Nowhere does it distinguish between 
House and Senate. The gentleman is only asking that the President not 
unilaterally withdraw from the ABM treaty.
  If we look to the Constitution, we will find that there are three 
articles that begin our Constitution: article I, the legislative 
branch; article II, the executive branch; and article 3, the judicial 
branch. None of those branches are elevated higher than the next 
branch. These are three equal branches of government.
  What we argue today is section 9 does allow a privileged resolution, 
if I might use the quote from rule IX of the privileged motion, ``. . . 
must deal with the rights of the House and the dignity of the House.''
  The House is a reflection of the American people. The right of the 
House is to be part of a Congress that, in joint collaboration with the 
executive, then makes a determination as to whether the people of the 
United States withdraw from the ABM treaty.
  The resolution does not ask for the House to act. It simply says it 
seeks the approval of Congress. We are asking that the President seek 
the approval of Congress; that before he moves forward with the final 
decision on the ABM treaty, he does not make a unilateral decision.
  I believe, Mr. Speaker, this comes within the privileged motion. It 
comes within the rights of the House, the House being a reflection of 
the American people. I believe that it is clear that between the three 
branches of government, there is no superior branch.
  As we know, those who escaped persecution and came to found the 13 
Colonies in the United States of America decided to try to escape 
despotism and the oppression of a single ruler. Specifically, the 
Founding Fathers established three equal branches of government.
  I believe we are abdicating our responsibilities as a House of 
Representatives, and therefore, the Congress of the United States, by 
suggesting that a President can unilaterally withdraw from a treaty as 
important as the Anti-ballistic Missile Treaty.
  I would argue that rule IX does stand and does comply, or at least 
the motion of the gentleman from Ohio (Mr. Kucinich) does comply with 
rule IX. It is a privileged motion. It protects the rights of the 
House. It should be adhered to, and we should be allowed to debate this 
very important statement and resolution on behalf of the dignity of the 
House, on behalf of the rights of the House, on behalf of the rights of 
the people of the United States of America and in reflection of the 
Constitution of the United States that indicates article 1, 2, and 3 
are equal; and that, if by some error, we allow an erroneous action to 
take place under President Carter, that we should not continue such and 
we should begin to turn the tide by suggesting that the Congress has a 
viable role in ensuring that a unilateral decision as important as the 
ABM treaty should not be made by a single branch of the government, and 
that is the executive.
  The SPEAKER pro tempore. Are there other Members who wish to be 
heard?
  The Chair intends to recognize the gentleman from Pennsylvania (Mr. 
Weldon), the gentlewoman from California (Ms. Lee), and the gentleman 
from Ohio (Mr. Kucinich), and the gentleman from Illinois (Mr. Hyde). 
That should conclude debate on the point of order and the Chair will be 
prepared to rule.
  The Chair recognizes the gentleman from Pennsylvania (Mr. Weldon).
  Mr. WELDON of Pennsylvania. Mr. Speaker, I support the position of 
the distinguished chairman. He is absolutely correct.
  I would be happy to debate the merits of the President's decision in 
this body any day under an open process. But the gentlewoman from Texas 
just said that this House has the prerogative and that no one of our 
three branches is, in fact, greater than the other. I agree with her.
  In fact, let us look at our constitutional history. When a Senator, a 
Member of the other body, challenged the actions of President Carter in 
his abrogation of the treaty with Taiwan, a Senator, who was part of 
the ratification of that treaty, went to the Supreme Court.
  Now, the Supreme Court is the third branch of our government. As the 
gentlewoman said, none of the three branches are above the other. The 
Supreme Court would not even hear the case. The Supreme Court said that 
there is no standing of the Senator.
  The Supreme Court is that third branch of our government that 
interprets the Constitution, not some scholar from Harvard, not some 
independence analyst. The Supreme Court issued an order saying to a 
Member of the other body: You have no standing. You have no standing to 
bring an action against the President, even though he in fact abrogated 
a treaty, which was allowed within the terms of the treaty.
  So this debate has no basis. It has no substance. In fact, my 
colleagues on the other side have not even answered the question if 
they would in fact agree with what the gentleman from Illinois (Mr. 
Hyde) said, that, therefore, the treaty of Taiwan is still in place, 
because this issue is about the substance of the ABM treaty.
  Let us have that debate. The gentleman can offer a bill, and we will 
debate it on the floor of the House as a sense of the Congress. But 
there is no standing, as determined by the Supreme Court.
  Mr. Speaker, I include for the Record this brief one-paragraph 
statement by the Supreme Court in their opinion that the Senator had no 
standing in objecting to what President Carter did.
  The SPEAKER pro tempore. Members may insert materials in the Record 
following disposition of the point of order.
  The SPEAKER pro tempore. The gentlewoman from California (Ms. Lee) is 
recognized briefly.
  Ms. LEE. Mr. Speaker, I want to commend the gentleman from Ohio for 
this very important debate with regard to our constitutional duties and 
our responsibilities.
  Of course, I rise in support of the question of the privileged 
resolution, for this resolution. The rules actually state that a motion 
may be considered as a privilege when the integrity of the House is in 
question, so this integrity, I believe, is at stake when the President 
seeks to unilaterally revoke the laws of this Nation by single-handedly 
withdrawing from the ABM treaty.
  The Constitution, and we have heard the debate this morning, it does 
not give the President the authority to repeal laws. That is a 
congressional function.
  Article 1, section 1 of the Constitution says: ``All legislative 
powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and a House of 
Representatives.'' Foreign policy is not the exclusive domain of the 
executive. Congress has the right and the duty to fulfill its share of 
the balance of powers. That is what this is about.
  I strongly support this privileged resolution to uphold the ABM 
treaty to protect American citizens and to uphold congressional 
authority. This is central to our democracy. The privileges of the 
House also reinforce these principles. Rule IX states that the 
constitutional prerogatives of the House also include its function with 
respect to treaties.
  The treaty with France of July 4, 1835, and the House resolution 
stating that the treaty should be maintained is also precedent for 
today's motion. So we must stand up for these rights and

[[Page H3237]]

for the public interest. That is what this debate is about.
  The SPEAKER pro tempore. The gentleman from Ohio (Mr. Kucinich) is 
recognized briefly.
  Mr. KUCINICH. Mr. Speaker, I want to thank the Speaker for his 
indulgence in this extremely important debate.
  If my colleagues' arguments are correct, then the House of 
Representatives in 1835 acted unconstitutionally when it passed the 
resolution stating that the Treaty of France ``should be maintained.'' 
But, Mr. Speaker, in fact, no court has ever found that, in 167 years, 
that the House acted unconstitutionally in 1835. It is, therefore, not 
for opponents to say that the House has no role in treaty termination 
today.
  My motion is therefore both constitutional, Mr. Speaker, and within 
the rules of the House. A party to a treaty is the country, not a 
specific President. In a democracy, a President is not sovereign. In 
America, the people are sovereign.
  The SPEAKER pro tempore. The Chair is prepared to rule on whether the 
resolution offered by the gentleman from Ohio (Mr. Kucinich) presents a 
question of the privileges of the House under rule IX.
  The resolution offered by the gentleman from Ohio asserts a 
congressional prerogative over withdrawal from treaties by the United 
States and resolves that the President should not withdraw from a 
certain treaty absent the approval of the Congress.
  The gentleman from Ohio argues that the Constitution has delegated to 
the Congress specific responsibility with regard to treaties. As argued 
by the gentleman from Illinois (Mr. Hyde) and as stated in section 702 
of the House Rules and Manual, however, rule IX does not support a 
resolution as a question of privilege when the constitutional 
prerogatives of the Congress, as a legislative branch, are involved. 
Rather, it is properly involved only with regard to the privileges of 
the House, as a House.

                              {time}  1115

  The Chair was presented with an analogous situation on May 6, 1921. 
On that occasion, Speaker Gillett held that a resolution presenting a 
legislative proposition as a question of constitutional privilege under 
the 14th Amendment did not qualify as a question of the privileges of 
the House.
  Speaker Gillett's rationale bears repeating: ``The whole question of 
a constitutional privilege being superior to the rules of the House is 
a subject which the Chair has for many years considered and thought 
unreasonable. It seems to the Chair that where the Constitution orders 
the House to do a thing, the Constitution still gives the House the 
right to make its own rules and do it at such time and in such manner 
as it may choose. And it is a strained construction, it seems to the 
Chair, to say that because the Constitution gives a mandate that a 
thing shall be done, it therefore follows that any Member can insist 
that it shall be brought up at some particular time and in the 
particular way which he chooses.''
  Before Speaker Gillett's ruling in 1921, Speaker Reed in 1898 had 
also ruled that the ordinary rights and functions of the House under 
the Constitution are exercised in accordance with the rules, without 
precedence as matters of privilege.
  The Chair has evaluated similar resolutions in more recent years and 
determined in each case that a question of privilege was not presented. 
On February 7, 1995, a resolution invoking several Constitutionally-
derived Congressional powers and prerogatives and resolving that an 
investigation be undertaken into Presidential actions allegedly 
infringing on such powers was offered as a question of privilege. In 
ruling that the resolution did not present a question of privilege, 
Speaker Gingrich stated: ``Although the resolution may address the 
aspect of the legislative power under the Constitution, it does not 
involve a constitutional privilege of the House. Were the Chair to rule 
otherwise, then any alleged infringement by the executive branch, even, 
for example, through the regulatory process, on a legislative power 
conferred on Congress by the Constitution would give rise to a question 
of the privileges of the House.''
  On November 4, 1999, the Chair again ruled that a resolution alleging 
a certain imbalance in trade, invoking the Constitutionally-derived 
Congressional power to regulate interstate and foreign commerce, and 
resolving that the President act to alleviate the imbalance did not 
present a question of the privileges of the House.
  Thus the Chair will continue today to adhere to the same principles 
enunciated by Speaker Gillett. The Chair holds that an assertion that 
the Constitution has reserved for Congress certain power with respect 
to treaties does not render a measure purporting to address the 
executive branch's exercise of such power a question of the privileges 
of the House.
  The gentleman from Ohio (Mr. Kucinich) has cited page 400 of the 
House Rules and Manual in support of his argument that resolutions 
invoking constitutional prerogatives with respect to treaties involve 
questions of the privileges of the House. The citations listed on page 
400 of the Manual are from the second volume of Hind's Precedents at 
sections 1502 through 1537. The Chair would note that these examples, 
including section 1505, are merely instances where the House voted on 
or debated its proper or desired role in certain matters arising under 
the Constitution with respect to treaties. They are not occasions where 
resolutions on such topics were presented as questions of privilege. In 
particular, the example recorded in section 1505 involved a joint 
resolution reported by the Committee on Foreign Affairs and not 
considered as privileged on the floor.
  The Chair would also note that the relief sought in the resolution 
offered by the gentleman from Ohio (Mr. Kucinich) is in the nature of a 
desired policy objective. It does not seek to vindicate ``the rights of 
the House collectively, its safety, dignity, or the integrity of the 
proceedings.''
  Accordingly, the Chair rules that the resolution offered by the 
gentleman from Ohio (Mr. Kucinich) does not constitute a question of 
privileges of the House under rule IX, and may not be considered at 
this time.
  Mr. KUCINICH. Mr. Speaker, I respectfully appeal the ruling of the 
Chair.
  The SPEAKER pro tempore (Mr. LaHood). The question is: Shall the 
decision of the Chair stand as the judgment of the House?


                  Motion to Table Offered by Mr. Hyde

  Mr. HYDE. Mr. Speaker, I move to lay the appeal on the table.
  The SPEAKER pro tempore. The question is on the motion to table 
offered by the gentleman from Illinois (Mr. Hyde).
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. KUCINICH. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 254, 
noes 169, not voting 11, as follows:

                             [Roll No. 214]

                               AYES--254

     Aderholt
     Akin
     Armey
     Bachus
     Baird
     Baker
     Ballenger
     Barr
     Bartlett
     Barton
     Bass
     Bereuter
     Berman
     Biggert
     Bilirakis
     Bishop
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boozman
     Brady (TX)
     Brown (SC)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Capuano
     Carson (OK)
     Castle
     Chabot
     Chambliss
     Coble
     Collins
     Cooksey
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (FL)
     Davis, Jo Ann
     Davis, Tom
     Deal
     DeLay
     DeMint
     Diaz-Balart
     Doolittle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Everett
     Ferguson
     Flake
     Fletcher
     Foley
     Forbes
     Fossella
     Frank
     Frelinghuysen
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goss
     Graham
     Granger
     Graves
     Green (WI)
     Grucci
     Gutknecht
     Hall (TX)
     Hansen
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hilleary
     Hobson
     Hoekstra
     Holden
     Horn
     Hostettler
     Hulshof
     Hunter
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Kanjorski
     Keller
     Kelly
     Kennedy (MN)
     Kerns
     King (NY)
     Kirk
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette

[[Page H3238]]


     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Matheson
     McCarthy (NY)
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Meehan
     Menendez
     Mica
     Miller, Dan
     Miller, Gary
     Miller, Jeff
     Mollohan
     Moore
     Moran (KS)
     Moran (VA)
     Morella
     Murtha
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Obey
     Ortiz
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Reyes
     Reynolds
     Roemer
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Sandlin
     Saxton
     Schaffer
     Schiff
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Snyder
     Souder
     Spratt
     Stearns
     Stenholm
     Stump
     Sullivan
     Sununu
     Sweeney
     Tancredo
     Tauzin
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Thune
     Tiahrt
     Tiberi
     Toomey
     Turner
     Upton
     Vitter
     Walden
     Walsh
     Wamp
     Watkins (OK)
     Watt (NC)
     Watts (OK)
     Weiner
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--169

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baldacci
     Baldwin
     Barcia
     Barrett
     Becerra
     Bentsen
     Berkley
     Berry
     Blagojevich
     Bonior
     Borski
     Boswell
     Boyd
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Cardin
     Carson (IN)
     Clay
     Clayton
     Clement
     Clyburn
     Condit
     Conyers
     Coyne
     Crowley
     Cummings
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley
     Doyle
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frost
     Gephardt
     Gonzalez
     Gordon
     Green (TX)
     Gutierrez
     Hall (OH)
     Harman
     Hastings (FL)
     Hill
     Hilliard
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Kucinich
     LaFalce
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lipinski
     Lofgren
     Lowey
     Luther
     Lynch
     Maloney (CT)
     Maloney (NY)
     Markey
     Mascara
     Matsui
     McCarthy (MO)
     McCollum
     McDermott
     McGovern
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Millender-McDonald
     Miller, George
     Mink
     Nadler
     Napolitano
     Neal
     Oberstar
     Olver
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Phelps
     Pomeroy
     Price (NC)
     Rangel
     Rivers
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sawyer
     Schakowsky
     Scott
     Sherman
     Shows
     Skelton
     Slaughter
     Solis
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Thurman
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Velazquez
     Visclosky
     Waters
     Watson (CA)
     Waxman
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--11

     Boucher
     Combest
     Gilchrest
     Greenwood
     Houghton
     Kingston
     Lewis (GA)
     Riley
     Serrano
     Smith (WA)
     Traficant

                              {time}  1143

  Mr. WYNN and Ms. SCHAKOWSKY changed their vote from ``aye'' to 
``no.''
  Messrs. SANDLIN, COSTELLO, OTTER, BLUMENAUER, BAIRD and MOORE changed 
their vote from ``no'' to ``aye.''
  So the motion to table was agreed to.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Mr. WELDON of Pennsylvania. Mr. Speaker, I include for the Record 
this brief one-paragraph statement by the Supreme Court in their 
opinion that the Senator had no standing in objecting to what President 
Carter did.

  [Goldwater et al. v. Carter, President of the United States, et al.]

 [444 U.S. 996; 100 S. Ct. 533; 62 L. Ed. 2d 428; 1979 U.S. Lexis 4144]

       [**533] Certiorari granted, judgment vacated, and case 
     remanded with directions to dismiss the complaint. Mr. 
     Justice Marshall concurs in the result. Mr. Justice Powell 
     concurs in the judgment [*997] and filed a statement. Mr. 
     Justice Rehnquist concurs in the judgment and filed a 
     statement in which The Chief Justice, Mr. Justice Stewart, 
     and Mr. Justice Stevens join. Mr. Justice White and Mr. 
     Justice Blackmun join in the grant of the petition for writ 
     of certiorari but would set the case for argument and give it 
     plenary consideration. Mr. Justice Blackmun filed a statement 
     in which Mr. Justice White joins. Mr. Justice Brennan would 
     grant the petition for writ of certiorari and affirm the 
     judgment of the Court of Appeals and filed a statement. 
     Reported below.--U.S. App. D.C.       , F.2d     .

                          ____________________