>The judge got it exactly right. I would have have
>written the opinion along just those lines. If
>Congress wants to mix it up with the Prez and assert
>its power to ratify withdrawals from treaties, I'd be
>pleased as punch, of course. jks
The judge got it right, but very inexactly so. The suit should have been dismissed because it was brought by members of the House only--who could be denied standing because the treaty-making (and consequently unmaking) process involves only the Senate and the President. A Senator would therefore have standing because she was denied her constitutionally specified right to advise and consent to the [un]making of a treaty.
The judge is wrong that the judiciary is debarred from
>acting since the Constitution "clearly relegates authority
>> over foreign affairs to the Executive and
>> Legislative Branches, with no role for the Judicial
>> Branch to second-guess or reconsider foreign policy
> decisions." If Bush's withdrawal proclamation was
unconstitutional, then any subsequent action he or
a successor might take in violation of the treaty would
be flatly illegal and thus justiciable. But since, presumably,
no such action had been taken before the suit was decided,
he would have been right to dismiss it as premature.
Of course all this is based on the proposition that the Constitution means what it *says*. I realize that most lawyers have been indoctrinated to believe the opposite-- that the Constitution means whatever lawyers in robes say it means.
Shane Mage
"When we read on a printed page the doctrine of Pythagoras that all things are made of numbers, it seems mystical, mystifying, even downright silly.
When we read on a computer screen the doctrine of Pythagoras that all things are made of numbers, it seems self-evidently true." (N. Weiner)
>--- Jordan Hayes <jmhayes at j-o-r-d-a-n.com> wrote:
>> I found a discussion of the ABM treaty termination
>> issue (and the lawsuit that was filed by 32
>> congressfolx) here:
>>
>>
>http://www.armscontrol.org/act/2003_01-02/briefs_janfeb03.asp#abm
>>
>>
>>
>> ABM Lawsuit Dismissed
>> A federal judge dismissed a lawsuit December 30 by
>> 32 members of the House of Representatives charging
>> that President George W. Bush could not unilaterally
>> withdraw the United States from the 1972
>> Anti-Ballistic Missile (ABM) Treaty. It is unclear
>> if the representatives, led by Dennis Kucinich
>> (D-OH), will appeal the decision. (See ACT,
>> July/August 2002.)
>>
>> Judge John D. Bates, citing two points, rejected
>> hearing the representatives' claim that Congress
>> needs to give its assent for the United States to
>> withdraw from a treaty. Bates ruled that the
>> representatives did not have the proper standing to
>> bring the case because they were not personally
>> injured by the president's act and because the issue
>> of treaty termination is a "nonjusticiable
>> 'political question' that cannot be resolved by the
>> courts."
>>
>> On the first point, Bates asserted that, since the
>> representatives were claiming that they suffered "a
>> grievous institutional injury by being deprived of
>> their constitutional right and duty to participate
>> in treaty termination," they could not claim
>> personal injury, a prerequisite for bringing a
>> lawsuit. Bates also denied that the representatives
>> could even claim an "institutional" injury,
>> declaring that they "have not been authorized,
>> implicitly or explicitly, to bring this lawsuit on
>> behalf of the House, a committee of the House, or
>> Congress as a whole." He further observed that, in
>> the time after the United States withdrew from the
>> ABM Treaty in June 2002, neither the House nor the
>> Senate has objected as an institution to the
>> president's action.
>>
>> Explaining his second reason for dismissing the
>> case, Bates noted that no branch of government is
>> assigned the authority to terminate a treaty but
> > that the Constitution "clearly relegates authority
>> over foreign affairs to the Executive and
> > Legislative Branches, with no role for the Judicial
>> Branch to second-guess or reconsider foreign policy
> > decisions." He added that, since Congress had not
>> asserted itself on the issue, neither should the
>> court. Doing so "would preempt what is clearly the
>> prerogative of Congress," Bates concluded.
>>
>> John Burroughs, a lawyer for the representatives,
>> took heart from one aspect of the judgment, noting
>> in a January 1 statement that Bates' decision "does
>> not foreclose Congress from asserting its
>> constitutional role in the treaty termination
>> process."
>>
>>
>>
>
>
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