[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 .
____________________