On December 19th, 2019, the House of Representatives approved H.R. 5430 (United States-Mexico-Canada Agreement Implementation Act) with a large bi-partisan majority (385-41). I have two questions about that vote. 1) Why? 2) Does anyone care about the Constitution anymore?
I have written previously about the constitutional issues with USMCA, but that’s not what I’m talking about today. I’m talking about H.R. 5430. According to the text of the legislation:
The purpose of this Act is to approve and implement the Agreement between the United States of America, the United Mexican States, and Canada
H.R. 5430
If your response to this vote is “So what?” or “Yippie!”, then please read further.
Treaty Clause
TREATY: An agreement, league or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state.
Webster’s 1828 Dictionary
Euphemisms aside, the USMCA is a treaty, or an agreement between two or more nations. For it to be valid, it must be made in accordance with the treaty clause of the Constitution.
He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
U.S. Constitution Article II, Section 2, Clause 2
For a treaty to be legally entered into by the United States of America, it has to be made by two parts of the U.S. government: The President and the Senate. Notice who is not included in the treaty making process? The House of Representatives. So my first question was: Why? Why did the House spend the time and money to investigate, debate, and vote on a resolution to “approve and implement” a proposed treaty? The reason is included in the text of the resolution:
Pursuant to section 106 of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (19 U.S.C. 4205) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191),
H.R. 5430
So what are the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 and the Trade Act of 1974? They are federal laws for the implementation of trade agreements.
19 USC 2191: Bills implementing trade agreements on nontariff barriers and resolutions approving commercial agreements with Communist countries
19 USC 2191
19 USC 4205: Implementation of trade agreements
19 USC 4205
Congress effectively re-wrote the treaty clause of the Constitution, inserting the House into the treaty making process while at the same time limiting Congress’ involvement in making changes to these treaties, as long as they are called “trade agreements”. So I said ‘effectively re-wrote’ because legally these laws are void.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Alexander Hamilton – Federalist #78
Since the Constitution states that treaties made by the President with the advice and consent of the Senate is the law, any legislative act to change this cannot be valid. In the early days of our republic, this idea was understood.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Marbury v. Madison Opinion
So what we have here is an illegal resolution, supported by illegal laws, and allowed to stand, due in no small part to our general ignorance of the Constitution.
Why it Matters
You may be asking yourself why this is a big deal? Sure, Congress spent time and money working on this legislation, but that is only a drop in the bucket for the time and money Congress wastes on foolish legislation every year. What makes this one such a big deal?
What makes it a big deal is how few people are talking about a trade agreement process that is repugnant to the Constitution. Have we fallen so far we don’t care how Congress does what it does? Are we so enslaved to what others say we don’t even recognize when the most basic aspects of our governing system, the separation of powers, is actively eviscerated? If Congress can do what the Constitution forbids, we are truly subjects of a federal aristocracy. And if the simple words of the Constitution are no longer to be used to limit governments, what limits are there? How can we call ourselves a Constitutional republic if the Constitution has no power? How can we call ourselves the land of the free if we are mere servants of those in Washington, D.C.? Are we still the home of the brave if we are too afraid to stand up to our employees and demand they uphold their oath of office? Has our experiment in self government failed? Or will there yet be a renaissance of liberty in this great nation? Will the people once again take the reins of power over our elected officials and hold them accountable? Only time will tell.
