[Congressional Record Volume 148, Number 75 (Monday, June 10, 2002)]
[Senate]
[Pages S5276-S5277]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 UNANIMOUS CONSENT REQUEST--S. RES. 282

  Mr. FEINGOLD. Madam President, in 3 days' time, the United States 
will withdraw from the 1972 Anti-Ballistic Missile Treaty. And it 
appears that we will do so without a significant debate on this issue 
in the Senate. For 30 years, the ABM Treaty has been the foundation 
upon which our strategic relationship with Russia has rested. So I am 
troubled that this historic treaty is about to be dissolved without so 
much as a hearing or even any debate in this body. I also regret that 
the President made this important decision without consulting with the 
Senate. I find this troubling on both constitutional and policy 
grounds.
  Article II, section 2 of the Constitution states that the President 
``shall have the Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided that two thirds of the Senators 
present concur. * * *'' The Constitution is silent on the process by 
which the United States can withdraw from a treaty, and the record of 
the Congress and the executive branch is mixed.
  But, the intent of the Framers, as explained by Thomas Jefferson, is 
clear. In section 52 of Jefferson's Manual, he writes, ``Treaties are 
legislative acts. A treaty is the law of the land. It differs from 
other laws only as it must have the consent of a foreign nation, being 
but a contract with respect to that nation.'' And article II, section 3 
of the Constitution states that the President shall ``take Care that 
the laws be faithfully executed. . . . ''
  Jefferson continues, ``Treaties being declared, equally with the laws 
of the United States, to be the supreme law of the land, it is 
understood that an act of the legislature alone can declare them 
infringed and rescinded. This was accordingly the process adopted in 
the case of France in 1798.'' It is worth noting that four signers of 
the Constitution were serving in the Congress when this first treaty 
termination occurred--by an act of Congress--in 1798,

[[Page S5277]]

just 11 years after the Constitutional Convention.
  So it is clear to me, as obviously it was to Thomas Jefferson, that 
Congress has a constitutional role to play in terminating treaties. If 
advice and consent of the Senate is required to enter into a treaty, 
this body should at a minimum be consulted on withdrawing from a 
treaty, and especially from a treaty of this magnitude, the termination 
of which could have lasting implications on the arms control and 
defense policy of this country. Today the ABM Treaty is the supreme law 
of the United States. The Senate should not stand by while the 
administration unilaterally abrogates this treaty.
  I am concerned about the message that the Senate's inaction sends to 
this administration and future administrations about how seriously we 
will take our constitutional responsibilities with regard to the 
termination of treaties. As Jefferson noted, a treaty is equal with a 
law. A law cannot be declared to be repealed by the President alone. 
Only an act of Congress can repeal a law. Action by the Senate or the 
Congress should be required to terminate a treaty.
  Momentarily, I will seek to bring up a resolution on this issue. The 
resolution is very simple. It just expresses the sense of the Senate 
that the approval of the Senate is required to terminate any treaty and 
states that the Senate shall determine the manner by which it gives its 
approval to such a proposed termination. Finally, the resolution 
disapproves of the withdrawal of the United States from the ABM Treaty.
  Madam President, I ask unanimous consent that the Senate proceed to 
the consideration of S. Res. 282, which I submitted earlier today, that 
the resolution be agreed to, and the motion to reconsider be laid upon 
the table without intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. HATCH. Madam President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. FEINGOLD. Madam President, I was not surprised, but I do regret 
that there has been an objection to the Senate taking up this 
resolution and expressing its will on this important issue.
  I am troubled that the Congress appears willing to cede its 
constitutional responsibility on this matter to the executive branch. I 
am concerned about the signal that the Senate's refusal to act sends to 
the executive branch and what it could mean for the future of other 
treaties with which this or other administrations may not agree.
  The Senate does not grant its advice and consent to ratify treaties 
lightly, and we should not abrogate our responsibility to express the 
will of this body on whether the United States should withdraw from 
treaties. By failing to act on this important issue, we are granting 
the executive branch undue license to trample on the constitutional 
prerogatives of the Senate and to blur the separation of powers and 
system of checks and balances. I am concerned that the Senate's 
inaction today tips the scales dangerously in favor of the executive 
branch.
  The PRESIDING OFFICER. The Senator from Florida is recognized.
  Mr. NELSON of Florida. Mr. President, I would like to be recognized 
to address the Senate.
  The PRESIDING OFFICER. The Senator is recognized.

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