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Member Questions of the Week of February 15, 2010

John from Lovington, NM asks: How is an international treaty passed? Does it require 2/3rds vote of the Senate to ratify it? OUR ANSWER: Article II, Section 2, Clause 2 of the US Constitution reads, The Presidentshall have Power by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. So, yes, the passage of an international treaty requires a supermajority (two-thirds) of the Senate for approval. Treaty-making is a mixture of executive and legislative power (only the Senate, however, as the House has no role in treaty-making). James Wilson, a signer of both the Declaration of Independence and the Constitution summed it up well by explaining, Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people. Generally speaking, the Executive branch negotiates the terms of a treaty through engaging in diplomacy and then the President submits the treaty to the Senate for its approval or disapproval. On the other hand you should keep in mind that the Founding Fathers allow for the President to agree to and sign Agreementswith a foreign Power without the advice and consent of the Senate. Such agreements are distinct from treaties, but they are to be confined to less important matters.

Judy from Lebanon, OH asks: “What is in the hate crime bill that Obama and the Democrats “snuck” through one of the military funding bills?” OUR ANSWER: The FY 2010 Defense Authorization bill, the bill that authorizes the funding necessary for our military, was signed into law by President Obama last year with a provision hidden in the bill that has nothing to do with national defense. The bill contained language that expands the definition of a federal hate crime to include the actual or perceived “sexual orientation” and “gender identity, of a victim. Essentially, it creates a new protected class of victims based on their sexual preferences. One of the many concerns about this provision is that it may provide incentives to states to prosecute religious groups or individuals based on their beliefs or speech. Furthermore, this law is an affront to the idea of federalism. Heritages Director of Senate Relations, Brian Darling points out that, Making activities that are already illegal in the states into a federal crime takes power away from the states and gives it to the federal government.

Robin from South Attleboro, MA asks: “Is it Constitutional to force a citizen to buy health insurance?” OUR ANSWER: No, it is not. Heritage Center for Legal and Judicial Studies Director, Todd Gaziano, with outside scholars Randy Barnett and Nathaniel Stewart take up this very issue and explain how a mandate that all Americans secure or purchase inflated health insurance is unconstitutional. You can read it all here. They debunk the common and faulty comparison made by some regarding state laws that require vehicle divers to have liability insurance (not personal accident insurance) for their potential injuries to third parties on the public roads. Congress simply has no constitutional authority to mandate that we buy a particular product as a condition of continued residence in the United States. To summarize, they write, An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

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