A Further Perspective

START’s Lame Passage

Has the Senate abdicated its constitutional responsibility?

By 1.11.11

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Last week the Republican majority held a reading of the Constitution on the floor of the House of Representatives. One wonders whether the Senate should do the same. For in ratifying the Strategic Arms Reduction Treaty (START) on a rushed basis during a lame duck session of Congress, the Senate arguably abdicated its constitutional responsibility.

Article II of the Constitution provides that a treaty may be approved only with the "advice and consent" of the Senate and the concurrence of two-thirds of the Senators. Two aspects of this provision are noteworthy. First, treaties -- unlike laws -- may be approved only after the "advice" of the Senate: mere consent is not enough. Second, the Constitution requires a two-thirds majority for ratification of a treaty; the mere majority necessary for passage of laws is insufficient.

These provisions demonstrate not only the importance the Framers attached to the Senate's ratification power, but also the active role the Framers expected the Senate would undertake in the ratification process. The "advice" requirement suggests that the Framers expected the Senate to be involved in shaping treaty language and that, given the importance of such matters, there would be substantial consensus within that body with respect to the propriety of treaty provisions.

However, the process in the Senate in ratifying the START treaty was far from this model. The administration urged the Senate to ratify the treaty during a lame duck session of Congress even though several members who would vote on the treaty had already been voted out of office. Moreover, in the rush toward approval, objections to treaty language were given short shrift. Critics maintained that the treaty was one-sided, imposing limits on U.S. nuclear stockpiles that would not in practice be applicable to Russia, that the treaty contained inadequate provisions to ensure that treaty compliance could be verified, and that there was language in the treaty's preamble that appeared to impose limits on the ability of the United States to develop missile defenses.

Now that the treaty is ratified, we will have to live with these consequences. Only time will tell whether this treaty is a good deal for the United States. For example, the preamble language is arguably a nonbinding statement of intent -- one that is not even applicable to the sorts of missile defense systems being developed by the United States. The preamble references "strategic defensive arms" that "undermine the viability and effectiveness of the strategic offensive arms of the Parties." However, given the limits of current technology, the United States is far from developing defensive systems that would "undermine the viability and effectiveness" of Russia's massive nuclear stockpile. Accordingly, this language may have no practical effect.

Nonetheless, the fact that such language made its way into the treaty at all is troubling. Such ambiguities may give rise to future conflicts or disputes. Accordingly, they should be studiously avoided where feasible. If the Senate had undertaken a more active role and a more thorough and rigorous analysis of the START treaty, one wonders whether such language would have survived.

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About the Author
Douglas Smith is a Senior Lecturer in Residence at Loyola University Chicago School of Law and adjunct scholar at the American Enterprise Institute.