Trump vs Congress: o debate constitucional mais importante, desde os Founding Fathers - Daily 202

Exagero meu, eu sei, pois já tivemos outros debates muito importantes do mesmo teor, ou seja, a capacidade executiva do presidente americano, como no caso dos poderes de guerra (suscitados pela intervenção no Vietnã, e o desastre que se seguiu), com a consequente limitação dos poderes do presidente. Mas a situação atual não deixa de ser interessante.
Diferentemente dos sistemas parlamentaristas, os sistemas presidencialistas tendem a aumentar indevidamente o poder dos prresidentes, sobretudo em conexão com conflitos militares ou crises econômicas, o que significa, no caso americano, a Guerra Civil, ou de Secessão, a Grande Guerra, a depressão dos anos 1930 (FDR executiva measures), a Segunda Guerra, e todas as guerras do período da Guerra Fria. Eventually, ou oportunamente, o Congresso ou a Suprema Corte restabelecem o equilíbrio dos poderes entre si.
O próprio presidente Wilson, que prometeu manter os EUA fora da Grande Guerra e acabou tendo de mandar tropas para a Europa, escreveu, quando era presidente da Universidade Princeton (ou antes) um livro chamado Congressional Government, destacando justamente essa característica do presidencialismo americano, que atribui o essencial dos poderes aos representantes do povo, e não o presidente. Fez muito bem e Trump vai aprender agora a se comportar (ou não, pos ele é um Grande Idiota).
Paulo Roberto de Almeida

Trump vs Congress

Trump stumbles are undercutting executive power, which may be healthy for America long-term

Trump signs Russia sanctions bill, calls it 'seriously flawed'

BY JAMES HOHMANN
with Breanne Deppisch and Joanie Greve

THE BIG IDEA: The White House has accumulated vastly more power than the men who wrote the Constitution intended, and one unintended consequence of the Trump presidency may be a long-term rebalancing between the three branches of the federal government.

Congress has repeatedly rolled over for presidents of both parties. Democrats looked the other way as Barack Obama used his pen and phone in sometimes constitutionally dubious ways. Republicans trusted George W. Bush to do the right thing, especially after the Sept. 11 attacks.

If they were put on truth serum, very few lawmakers of either party would tell you that they trust Donald Trump to do the right thing if left to his own devices. Especially vis-à-vis Vladimir Putin.

That’s why they almost unanimously passed a bill that ties his hands. Congress gave itself a 30-day review period to vote down any changes Trump tries to make to Russia sanctions.

Trump reluctantly signed the measure yesterday to avoid the humiliation of a veto override. But he issued two defiant signing statements, saying the “seriously flawed” legislation includes “a number of clearly unconstitutional provisions” by “limiting the Executive’s flexibility … to strike good deals.”

“The Framers of our Constitution put foreign affairs in the hands of the President,” Trump said. “This bill will prove the wisdom of that choice.”

That comment represents a bold assertion of presidential power and reveals a breathtakingly simplistic view regarding the separation of power. The Constitution, of course, gives Congress the power to declare war and ratify treaties.

Constitutional law experts agree that Congress is well within its rights. Michael Glennon from the Fletcher School of Law and Diplomacy at Tufts said Trump's statement is based on a “gross misreading” of case law. “That’s obviously a misguided interpretation of his constitutional authority,” he told Abby Phillip. “Congress has very broad authority over foreign commerce. It’s explicitly given the power to regulate commerce with foreign nations. It could have, if it desired, imposed those sanctions without giving the president any waiver authority whatsoever.”

Senate passes Russia sanctions bill

-- The balance of power has ebbed and flowed through history. The president claims fresh powers during wartime. Congress has reasserted itself after executive overreach, from Vietnam (e.g. the War Powers Act) to Watergate. Ronald Reagan’s presidency was nearly derailed when his administration funded the contras in Nicaragua, despite the Boland Amendment that barred him from doing so.

-- “Trump is something the nation did not know it needed: a feeble president whose manner can cure the nation’s excessive fixation with the presidency,” conservative thought leader George F. Will wrote in an important column over the weekend that got overshadowed by news of the latest White House shake-up: “Fortunately, today’s president is so innocent of information that Congress cannot continue deferring to executive policymaking. And because this president has neither a history of party identification nor an understanding of reciprocal loyalty, congressional Republicans are reacquiring a constitutional — a Madisonian — ethic. It mandates a prickly defense of institutional interests, placing those interests above devotion to parties that allow themselves to be defined episodically by their presidents. … Furthermore, today’s president is doing invaluable damage to Americans’ infantilizing assumption that the presidency magically envelops its occupant with a nimbus of seriousness. … For now, worse is better. Diminution drains this office of the sacerdotal pomposities that have encrusted it.”

John McCain speaks to journalists at the Capitol last Thursday night. (Melina Mara/The Washington Post)

-- A bipartisan chorus of leaders in Congress swiftly pushed back on Trump yesterday.

John McCain, the chairman of the Senate Armed Services Committee, called the signing statement “misplaced.” Making a rhetorical allusion to the signing statement put out by the White House, he wrote: “The Framers of our Constitution made the Congress and the President coequal branches of government. This bill has already proven the wisdom of that choice.”

“On this critical issue of national security policy, it was the Congress that acted in the spirit of national unity to carry out the will of the American people,” the 2008 Republican presidential nominee wrote in a statement from Arizona, where he’s battling brain cancer. “And that is why it is critical that the President comply with the letter and spirit of this legislation and fully implement all of its provisions. Going forward, I hope the President will be as vocal about Russia’s aggressive behavior as he was about his concerns with this legislation.”

“Today, the United States sent a powerful message to our adversaries that they will be held accountable for their actions,” House Speaker Paul D. Ryan (R-Wis.) said in his own statement about Trump signing the bill. “We will continue to use every instrument of American power to defend this nation and the people we serve.”

-- Generally, Republicans are talking much more strongly about the separation of powers than they were in the months after Trump took office.

“We work for the American people. We don’t work for the president,” said Sen. Tim Scott (R-S.C.), in an interview with Sean Sullivan. “We should do what’s good for the administration as long as that does not in any way, shape or form make it harder on the American people.”

“President Trump won. I respect his victory. I want to help him with health care and do other things that I think we can do together like cut taxes,” added Sen. Lindsey Graham (R-S.C.). “I’ll push back against ideas I think are bad for the country, like changing the rules of the Senate. And that’s the way I’m going to engage the president.”

Graham has always been critical of Trump, but other once-outspoken Republican defenders of the president are sounding more critical. When he was asked to respond to The Post's report about the president's role in dictating Donald Jr.'s misleading statement about his meeting with a Russian national at Trump Tower, Sen. James Risch (R-Idaho) told CBS News: “I guarantee you there were phone calls in addition to those emails, and I want to hear all of it before I answer the question you put to me.”

Sanders: Trump signed Russia sanctions bill in the 'interest of national unity'

-- Signing statements aren’t unusual. Bush and Obama routinely issued them to express concerns about bills even as they reluctantly accepted them to avoid the risk of an override.

But Trump’s statement on the Russia bill, naturally, included a Trumpian flourish that is very unusual in a normally legalistic document: “I built a truly great company worth many billions of dollars. That is a big part of the reason I was elected,” he said. “As President, I can make far better deals with foreign countries than Congress.”

U.S. abandons Moscow diplomatic properties

-- Validating Congress’s decision to tie his hands, though, Trump continues naively playing footsie with Putin.

Russia retaliated against the United States for the sanctions over the weekend, ordering the U.S. embassy to reduce its staff by 755 people and seizing U.S. diplomatic properties. Even as he took the time to attack Golf Magazine on Twitter last night, though, Trump has yet to issue any kind of statement on Putin’s affront to our country. The silence has been deafening, especially against the backdrop of Trump refusing to fully accept the consensus of the intelligence community that Moscow interfered in the 2016 election.

The prime minister of Russia trolled Trump (on Twitter and in English!), and even that couldn’t get a rise out of him:

Former U.S. ambassador to Russia and Stanford professor Mike McFaul replied: 

Vice President Pence speaks in Montenegro. (Stevo Vasiljevic/Reuters)

-- Trump’s desire to appease Moscow puts him at odds with most members of his own national security team – including Mike Pence, who returned overnight from a 3 1/2-day trip through Eastern Europe. “At nearly every stop, the vice president spoke forcefully about the specter of Russian aggression, talked of ‘peace through strength,’ and reaffirmed the United States’ commitment to the North American Treaty Organization, reiterating its cornerstone pledge that an attack on one nation is an attack on all,” reports Ashley Parker, who traveled aboard Air Force Two.

Many of the interested parties, including the Baltic States and the Russians, aren’t sure to what degree Pence truly speaks for Trump, which means that his hardline policy pronouncements don’t pack the punch they otherwise might.

In an interview with Parker yesterday, Pence said Trump is taking a “we’ll see” attitude toward Russia and said the administration hopes the sanctions will lead to an improved relationship.

Tom Cotton listens to Trump speak at the White House yesterday. (Jabin Botsford/The Washington Post)

-- Republicans in Congress are now readying for round two with Trump on Russia, as hawks search for additional ways to box in the president. “Language in key defense bills in both the House and Senate would require the military to begin developing medium-range missiles banned by a 1987 treaty,” Politico’s Bryan Bender reports. “Supporters of the provisions — including Republican Sen. Tom Cotton of Arkansas — assert that Russia's recent deployment of an intermediate-range missile in violation of the treaty requires the U.S. to respond in kind. … The House’s language, included in the National Defense Authorization Act passed last month, would create a program for developing a land-based missile that is banned by the INF Treaty. The Senate will soon debate a similar provision in its version of the defense policy bill, which would set aside $65 million and also require the military to reintroduce a missile capable of traveling between 500 and 5,500 kilometers — a weapon that both Cold War rivals phased out three decades ago.”

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Acordos comerciais simples ou tratados internacionais por inteiro? Discussao constitucional nos EUA - Robert Romano

Stop pretending Pacific trade deal is not a treaty
By Robert Romano
Americans For Limited Government, April 24, 2015

Since passage of the Trade Act of 1974, every trade agreement the U.S. has entered into under trade promotion authority has not been considered a treaty under U.S. law. This includes the currently-being-negotiated Trans-Pacific Partnership between the U.S. and Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.

It is not a treaty, says the president and members of Congress; and, as such, it is not subject to a two-thirds ratification vote in the Senate. Our trade partners certainly seem to think it's a treaty, like Australia, but let's leave that aside for the time being.

But that is not how commercial treaties were originally treated under the U.S. Constitution.

In 1795, Supreme Court Chief Justice John Jay negotiated a commercial treaty with Great Britain, "The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America."

It was put to the Senate for ratification by a two-thirds vote, which eventually came on June 24, 1795. But not before the House of Representatives raised several objections, chiefly, that the treaty could not be binding if the House did not approve, too, since it regulated commerce with foreign nations, a power the Constitution vested in all of Congress.

Heretofore, the congressional foreign commerce power had simply been thought to include tariffs and sanctions and the like. But not treaties, which was the sole province of the president and Senate. This was a new argument and was led, oddly enough, by James Madison, the so-called Father of the Constitution and leader of the then-Republican Party in the House.

Oddly, because throughout the entire ratification process for the Constitution, nobody had considered the House would have any role in approving treaties, let alone commercial treaties.

In fact, countered the Federalist Party, if the Virginia ratifying convention, led by Madison, had thought that commercial treaties required additional House approval to be binding, then why did it propose an amendment that would have required commercial treaties to only be ratified by two-thirds of all sitting senators, rather than those present. This clearly indicated the ratifying conventions believed the treaty power also included trade agreements with foreign nations.

The matter was such a controversy that, even after the treaty's ratification, then-President George Washington had to send a letter to the House dated March 30, 1796 to address it.

Treaties, including commercial treaties, were only to be put to the Senate for ratification, per Washington, as a matter of federalism and states' rights. Because, he wrote, "the smaller states were admitted to an equal representation in the Senate with the larger states, and that this branch of government was invested with great powers, for on the equal representation of those powers the sovereignty and political safety of the smaller states were deemed essentially to depend."

That is to say, the smaller states would not — and did not — agree to a Constitution where the proportionally-represented House of Representatives would have final say on treaties. Including commercial treaties.

In fact, according to Washington, at the convention a motion was made "that no treaty should be binding on the United States which was not ratified by law," and, wrote Washington, "the proposition was explicitly rejected."

So, everyone at the convention agreed that commercial treaties had to be put to the Senate for ratification. The state ratifying conventions, even ones that raised objections to the provision asking for a higher threshold for commercial treaties, agreed that these agreements had to be put to the Senate for ratification. The constitutional convention, which Washington chaired, even considered the question of including the House in the treaty process, and explicitly rejected it.

Thus, Washington said, "The assent of the House of Representatives is not necessary to the validity of a treaty."

That more or less settled the matter such that when it came time for President James Madison to submit his own commercial treaty with Great Britain, the United Kingdom Commerce and Navigation Treaty of 1815, which was a free trade agreement, it too required a two-thirds Senate majority to ratify. By that time, Madison had ceded the argument.

200 years later, however, the two-thirds vote in the Senate constitutional requirement for commercial treaties is nowhere to be found.

Thanks to the Trade Act of 1974, which created an entirely new method of enacting trade agreements. It was signed into law by Gerald Ford. Now, the House and Senate authorize the President to negotiate trade deals, and then they are adopted by simple majority votes in the House and the Senate on an expedited basis — so-called fast track legislation.

Consider that not even the Madisonians denied that the two-thirds vote in the Senate was necessary. Their only quibble was that the House had no say. But they never would have considered a construction that allowed a commercial treaty to be adopted by simple majorities in both houses.

As Americans for Limited Government President Rick Manning recently noted, "Trade promotion authority via an executive-legislative branch agreement is an unconstitutional fabrication of the modern administrative state."

Yet, every single trade agreement the U.S. has entered into for the past 40 years was somehow not considered to be a treaty, was not submitted to the Senate as such, and was adopted via this dubious process. This raises the worrisome prospect that every one of those trade deals is unconstitutional. Too bad.

The point is, members of Congress who claim fidelity to the Constitution, and to be an originalist, cannot in good conscience embrace trade promotion authority for any president. It is an aberration under the constitutional framework set forth in 1787, designed to get around the two-thirds majority requirement for treaty ratification in the Senate. Nothing more.

So stop pretending.

Robert Romano is the senior editor of Americans for Limited Government.