That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power have ever paid to Reason.
As a young lawyer, William Rehnquist was a law clerk to Justice Jackson, whom he admired immensely. Every Christmas, Jackson would give each of that year’s law clerks a picture of the Court autographed by all nine justices. On each photograph he would write an identical inscription; as the Chief’s read, “To William Rehnquist, with the friendship and esteem of Robert Jackson.” When Rehnquist became a justice, he continued the tradition; on the wall of my Senate office is a picture of the Court inscribed “with the friendship and esteem of William H. Rehnquist.” John Roberts, too, was a Rehnquist clerk; he has the same photograph, and he has continued the tradition, giving his own clerks pictures “with the friendship and esteem of John G. Roberts.” Three generations of justices over seventy years have used word-for-word the identical inscription.
Returning to the JCPOA, President Obama’s authority was at what Justice Jackson described as the nadir of presidential power—exercised in direct opposition to the will of Congress.
For that reason, Secretary Mattis was wrong. The United States did not “give its word”; instead, Obama made a political promise and tried to use the United Nations to carry out an end run around the constitutional provisions for duly ratifying a treaty.
As we litigated in Medellín, these provisions comprise vital checks and balances in our constitutional system. Binding law in the United States cannot be made without the concurrence of both elected branches: either as a statute, with a majority of both Houses and the president’s signature (or, if vetoed, with the override of two-thirds of both Houses), or as a treaty, with the president’s signature and two-thirds of the Senate.
Especially in matters of foreign policy and national security, those checks and balances are critical to protecting our nation’s interests. No one president, of either party, has the unilateral power to make binding law. The treaty power is divided between the president and the Senate because the Framers, in their wisdom, understood that it is only healthy to commit the nation to foreign obligations and entanglements when a directly accountable institution, such as a chamber of Congress, agrees to the commitment. It is for the same reason that the Constitution gives Congress the power to declare war.
And the Senate, in particular, has historically had a central role in foreign policy. Here’s how Senator Henry Cabot Lodge, legendary chairman of the Senate Foreign Relations Committee, put it: “War can be declared without the assent of the Executive, and peace can be made without the assent of the House… but neither war nor peace can be made without the assent of the Senate.”
The good news about Obama’s circumvention of the constitutional treaty requirements was that it permitted President Trump to pull out of the deal entirely and instantaneously. Obama famously said, in defending unilateral presidential power, “I have a pen and I have a phone.” As he learned with the JCPOA, if you live by the pen, you die by the pen.
Another flash point where U.S. sovereignty is being threatened concerns the International Criminal Court, which is more and more trying to intervene in the domestic affairs of Western democracies—including both the United States and Israel. The ICC, much like the World Court, is an unaccountable transnational tribunal located in The Hague, Netherlands.
The ICC ostensibly exists to prosecute international war crimes and crimes against humanity. But ever since its inception in 2002, it has had a morally perverse obsession with liberal Western democracies who act in legally and morally justifiable self-defense against radical Islamic terrorist groups.
For a number of years, the ICC has placed in its crosshairs American troops operating against terrorist enemies in Islamic nations. In fact, earlier this year, the ICC directly authorized an investigation into alleged U.S. “war crimes” in Afghanistan.
The Trump administration has pressed back hard against this threat to our sovereignty. The State Department rightly announced that it would issue a visa ban on any ICC personnel involved in the ICC investigations, which prevents them from traveling to the United States. Here’s what Secretary of State Mike Pompeo said in response to the ICC “investigation” of America:
This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body.… It is all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan, which is the best chance for peace in a generation. The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade, so-called court.
Like other transnational institutions such as the United Nations or the World Court, the ICC has long been plagued by anti-American animus and virulent anti-Semitism, the latter of which leads them to be obsessed with attacking Israel. When terrorists attack innocent civilians in Israel and the Israeli Defense Force strikes back at the terrorists, the ICC is wont to consider Israel’s self-defense a “war crime.” Of course, the two are not morally equivalent; Hamas terrorists target civilians and innocent women and children. In Gaza, they placed their terror headquarters in the basement of a hospital, using Palestinian mothers and their infants being delivered above as human shields. They were caught storing their rockets in an elementary school for the same reason. As Prime Minister Netanyahu put it—in the midst of Hamas missiles raining down—“We are using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.”
The first time I met Prime Minister Netanyahu was in 2012, just a few weeks after
