Ratification Without Representation: Making a Joke out of the Constitution
"Why don't we just give them ours?" Jay Leno asked last summer as the Bush administration was helping <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Iraq develop a constitution. After all, Leno noted: "It's served us well for over two hundred years, and besides, we're not using it anymore." The joke is both funny and sad — because it's somewhat true. The U.S. Constitution was designed to safeguard American freedoms, but in modern times it has increasingly been disregarded and creatively reinterpreted. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Congress is currently working on legislation that takes constitutional disregard to a new level. At issue is how to implement future changes to a yet to be ratified treaty — the Convention on Persistent Organic Pollutants, known as the POPs Treaty. It imposes international bans on 12 chemicals and sets up a process for banning more chemicals in the future.
Since signing the treaty, the Bush administration has pushed aggressively for Senate ratification. However, members of Congress want to first pass "implementation legislation" that will codify how the U.S. will comply with the treaty.
Initially, the administration supported legislation that would allow the Environmental Protection Agency to regulate only the 12 chemicals listed in the treaty after Senate ratification. Any additional bans would have to follow constitutional procedures. That is, such treaty changes would require a presidential signature and Senate ratification via a two-thirds vote.
Unfortunately, the administration abandoned this principled stand last year to endorse a bill that would direct the EPA to implement any additions to the POPs list of bans without Senate ratification. The EPA would have one year after international negotiators list new chemicals to essential ratify and implement new bans. The bill, S. 1486, has passed in the Environment and Public Works Committee by voice vote.
This bill not only eliminates Senate ratification for treaty additions, it gives international negotiators the upper hand over domestic regulators. In theory, it would allow the EPA to decide against bans and regulations. However, the legislation makes it difficult for the agency to prevail in any denial to regulate. First, EPA would be forced to give "substantial weight" to POPs listing decisions — placing the burden on EPA to prove them wrong. In addition, environmental groups would be able to sue EPA if the agency didn't impose bans or regulations. The courts would then be able to order EPA to issue bans or regulations unless the agency proved that such action is unnecessary.
Recently, Rep. Paul Gillmor (R., Ohio) has begun circulating a new proposal, which offers important, yet still insufficient, improvements over S. 1486. Rather than requiring the EPA to disprove the need for new POPs regulation, it requires the agency to consider whether it's necessary, and it gives the EPA some wriggle room to reject them. To that end, it requires some cost-benefit considerations and includes language that is designed to promote science-based considerations.
Unfortunately, the Gillmor bill fails to demand that the Senate employ its constitutional responsibility to ratify new treaties. It notes that the EPA may issue POPs-related rules "upon ratification, acceptance, approval or [emphasis added] accession of the United States." The use of the word "or" suggests that ratification is only one possible means of implementing treaty amendments. It doesn't even specify that "approval," "acceptance" or "accession" of the United States involve signing of the treaty amendments by the executive branch.
Whether the U.S. Supreme Court would be willing enforce the constitutional process remains unclear. Nonetheless, there are compelling policy reasons for demanding that lawmakers follow the constitutional process. In this case, sidestepping the Constitution would give international negotiators and the EPA authority to deprive Americans of the freedom to engage in commerce — to distribute, use, and sell certain chemicals.
It is also likely to make the POPs treaty a vehicle for many more international bans of valuable products. Treaty signatories are already discussing the possibility of banning lindane, a pesticide outlawed in some European nations. Lindane is used in the United States to control head lice and scabies as well as in products to protect pets, livestock, and various plants from pests. When used properly, the benefits of lindane outweigh its risks according to the U.S. Food and Drug Administration, yet such realities may not matter to international negotiators.
It's a sad state of affairs when the nation's comedians are more enlightened than our elected statesmen. Although he makes light of the issue, even Leno probably realizes that this is no joking matter.