Over half a century has transpired since the United States of America became a member of the United Nations. Purporting to act pursuant to the treaty power (Article II, Section 2) of the Constitution of the United States of America (Constitution), the president of the United States signed and the United States Senate ratified the Charter of the United Nations. Yet, as Edwin S. Corwin’s classic study of The President: Office and Powers, has observed, “the debate in government circles over the United Nations’ charter scarcely touched on the question of the constitutional power of the United States to enter such an arrangement....” E. Corwin, The President 248 (5th Rev. ed. 1984) Instead, the only questions addressed concerned the respective roles that the president and Congress would assume upon the implementation of that charter.
On the one hand, some proposed that once the Charter of the United Nations was ratified, the president of the United States would act independently of Congress pursuant to his executive prerogative to conduct the foreign affairs of the nation. Others insisted, however, that Congress play the major role of defining U.S. foreign policy, especially because that policy implicated the power to declare war, a subject expressly reserved to Congress by Article I, Section 8 of the Constitution of the United States of America.
At first, it appeared that Congress would take control of America’s participation in the United Nations. By the enactment of the United Nations Participation Act on December 20, 1945, Congress laid down several rules by which America’s participation would be governed. Among those rules was the requirement that before the president of the United States could deploy United States armed forces in service of the United Nations, he was required to submit to Congress for its specific approval “the numbers and types of armed forces, their degree of readiness and general location, and the nature of the facilities and assistance, including rights of passage, to be made available to the United Nations Security Council on its call for the purpose of maintaining international peace and security.” As Corwin has pointed out “the controlling theory of the act is that American participation in United Nations shall rest on the principle of department collaboration, and not on an exclusive presidential prerogative in the diplomatic field.” Id., at 251
Since the passage of the United Nations Participation Act, however, congressional control of presidential foreign policy initiatives in cooperation with the United Nations has been more theoretical than real. Presidents from Truman to Clinton have again and again presented Congress with military faits accomplis, thereby forcing Congress’ hand to support United States troops or risk the accusation of having put the nation’s servicemen and servicewomen in unnecessary danger. Instead of seeking congressional approval of the use of United States armed forces in service of the United Nations, presidents from Truman to Clinton have used the United Nations Security Council as a substitute for congressional authorization of the deployment of United States armed forces in that service.
This erosion of congressional power, and hence United States sovereignty, has not been accidental. The seeds were planted from the beginning, both in the text of the Charter of the United Nations and in the vision of its most ardent supporters. Article 24 of the Charter of the United Nations proclaimed that, as necessary prerequisite for “prompt and effective action,” the members of the United Nations “confer [red] on the Security Council primary responsibility for the maintenance of international peace and security,” agreeing “that in carrying out its duties under this responsibility the Security Council acts on their behalf.” With such expansive language as this, it is not surprising that, even before the charter was ratified, President Franklin Delano Roosevelt expressed hope that some day “the lion’s share” of “the direction of American foreign policy” would pass gradually to the United Nations Security Council. Id., at 249-50
This transfer of power from Congress to the United Nations has not, however, been limited to the power to make war. Increasingly, presidents are using the United Nations not only to implement foreign policy in pursuit of international peace, but also domestic policy in pursuit of international, environmental, economic, education, social welfare, and human rights policies, both in derogation of the legislative prerogatives of Congress and of the 50 state legislatures, and further, in derogation of the rights of the American people to constitute their own civil order. As Cornell University government professor Jeremy Rabkin has observed:
Although the Charter specifies (Art. 2, Para. 7) that none of
its provisions “shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction
of any state,” nothing has ever been found so “essentially domestic”
as to exclude UN intrusions. J. Rabkin, Why Sovereignty
Matters 31 (AEI Press, Washington, D.C.: 1998).
See remander of story at URL below.
http://www.thelibertycommittee.org/hr1146analysis.htm
