Shivakantjha.org - The Hyde Act: Evaluation of certain assumptions of the Faustian pact
The Hyde Act: Evaluation of certain assumptions of the Faustian
(An Aspect of the 123 Agreement)
By Shiva Kant Jha
THIS article presents a critical evaluation
of Statement on H.R. 5682 ( the Henry J. Hyde United States-India Peaceful Atomic
Energy Cooperation Act of 2006) by the President of the United States, and questions
the wisdom of the highest weilders of power in the USA and India. I invite experts
to evaluate my comments, not to ignore them as coming from one of the "unpeople"
of our times. This article does not examine the infamous 123 Agreement, which
would require a separate indepth analysis. On December 18, 2006, the US President,
George W. Bush, signed into law H.R. 5682 known as the 'Henry J. Hyde United
States-India Peaceful Atomic Energy Cooperation Act of 2006' to "strengthen
the strategic relationship between the United States and India" and to "deliver
valuable benefits to both nations." He declared:
"Section 103 of the Act purports to establish U.S. policy with
respect to various international affairs matters. My approval of the Act does
not constitute my adoption of the statements of policy as U.S. foreign policy.
Given the Constitution's commitment to the presidency of the authority to conduct
the Nation's foreign affairs, the executive branch shall construe such policy
statements as advisory. Also, if section 104(d)(2) of the Act were construed
to prohibit the executive branch from transferring or approving the transfer
of an item to India contrary to Nuclear Suppliers Group transfer guidelines
that may be in effect at the time of such future transfer, a serious question
would exist as to whether the provision unconstitutionally delegated legislative
power to an international body. In order to avoid this constitutional question,
the executive branch shall construe section 104(d)(2) as advisory. The executive
branch will give sections 103 and 104(d)(2) the due weight that comity between
the legislative and executive branches should require, to the extent consistent
with U.S. foreign policy."
The tone in the very first sentence is curt, uncivil, even
suggesting that the President questions the very integrity of the law of the
land. The word 'purport' often means "that in your opinion this claim is false"
( Collins Cobuild English Language Dictionary ). His statement that
his 'approval of the Act' does not mean his 'adoption' is a clear breach of
the provisions and the spirit of the US Constitution, besides being a gross
respect to the legislature wherein the nation is present through its representatives.
It is a contempt of the great Constitution to hold that the subject of U S foreign
policy is an exclusive concern of the Executive which could ride roughshod with
hubris on the enactment set afoot by the democratic body of the nation.
The President's grouse against section 104(d)(2) is deceptive
as the US Executive had seen nothing wrong in delegating to the WTO supreme
legislative of the USA and in making the WTO's Disputes Settlement Body, in
effect, the highest tribunal of the USA! This issue has been strongly felt by
many US citizens who moved the US Supreme Court, and the District Court of Florida,
but the cause was lost on technical grounds making Alan Adaschik even to say
Fire (Impeach) the Supreme Court Judicial Activism item by Alan Adaschik]:
"There is something wrong, terribly wrong. Our government is now a criminal
conspiracy where we no longer have any say in how we are governed and what our
government does. This situation has progressed to the point where our
government is no longer ours. It is now the government of our globalist
masters and they are having their way with us by dissolving our borders, driving
us into insolvency, squandering our resources, using our armed forces to fight
their illegal and wrongful wars, and by turning us into indentured servants
instead of citizens."
Can the President say all these so dogmatically even about
the recent trade agreements, including NAFTA, the United States-Canada Free
Trade Agreement, the United States-Israel Free Trade Agreement and the Tokyo
Round Agreement, the Uruguay Round Agreements executed by the President and
approved and implemented by Act of Congress?
But solecism reaches its acme when the President says: "In
order to avoid this constitutional question, the executive branch shall construe
section 104(d)(2) as advisory." Once a law or constitution is framed it is only
for the superior court to say what it means, whether a particular provision
is advisory or mandatory. To hold a mandatory statutory provision 'directory'
is an insolent misdemenour. In any case, whether a provision is directory or
mandatory is for the court to decide. What Lord Diplock said in Black Clawson
Ltd v. Papierwerke [ (1975) A.C. 591 at p. 638)]:
"In construing it the court must give effect to what the words
of the statute would reasonably understood to mean by those whose conduct it
regulates. ....Parliament, under our Constitution, is sovereign only in respect
of what it expresses by the words used in the legislation it has passed."
The principle applies in the US courts also as they follow
what has come to be known
'Anglo-Ameriocan common law'. An example par excellence
of this judicial approach is what is admittedly the greatest decision by the
greatest judge of the U.S. Supreme Court: I mean the decision, Marbury v.
Madison [(1803) 1 Cranch 137, 177-79, 2 L ed. 60].
To call the relationship inter se the executive and
the federal legislature under the US Constitution a mere 'comity' is a studied
misconstruction of this concept to build a self-serving point. The question
is of constitutionality, not of 'courtesy' among the political entities. He
points out further that the "executive branch shall construe provisions of the
Act that mandate, regulate, or prohibit submission of information to the Congress,
an international organization, or the public, ..... in a manner consistent with
the President's constitutional authority to protect and control information
that could impair foreign relations, national security, the deliberative processes
of the Executive, or the performance of the Executive's constitutional duties."
The framers of the US Constitution must be aghast in their grave on knowing
this sort of atrocious view. It is this sort of act and assertion which made
this US Supreme Court in Hamdan v . Rumsfeld (decided on
June 29, No. 05-184. 2006) per Justice Breyer, with whom Justice Kennedy, Justice
Souter, and Justice Ginsburg join concurring,) observe with pregnant understatement
"The dissenters say that today's decision would "sorely hamper
the President's ability to confront and defeat a new and deadly enemy." Post
, at 29 (opinion of Thomas, J .). They suggest that it undermines our Nation's
ability to "preven[t] future attacks" of the grievous sort that we have already
suffered. Post , at 48. That claim leads me to state briefly what I believe
the majority sets forth both explicitly and implicitly at greater length. The
Court's conclusion ultimately rests upon a single ground: Congress has not issued
the Executive a "blank check." Cf. Hamdi v. Rumsfeld, 542
U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied
the President the legislative authority to create military commissions of the
kind at issue here. Nothing prevents the President from returning to Congress
to seek the authority he believes necessary."
II The President's legal advisors are, it seems, acting in
the light of the following dicta in United States v. Curtiss-Wright Export Corporation
[299 U.S. 304 (1936)299 U.S. 304];
"The two classes of powers are different, both in respect
of their origin and their nature. The broad statement that the federal government
can exercise no powers except [299 U.S. 304, 316] those specifically enumerated
in the Constitution, and such implied powers as are necessary and proper to
carry into effect the enumerated powers, is categorically true only in respect
of our internal affairs."
This judgment is no longer correct in the eyes of the US Supreme
Court. In early fifties the Bricker Amendments for constitutional changes were
moved to ensure that the Constitution be not undone through treaty-making,
and it is a matter of record that the proposed amendments, which
got wide support, failed only because of stiff opposition from the vested
intersts. The Executive government was all against the proposed amendments.
But this grave crisis now stands solved by the Supreme
Court which in in Reid
v. Covert (1957) declared that the United States could not abrogate
the rights guaranteed to citizens in the Bill of Rights through international
agreements. Justice Hugo
L. Black 's opinion for the Court declared:
"There is nothing in [the Constitution] which intimates that
treaties and laws enacted pursuant to [it] do not have to comply with the provisions
of the Constitution. Nor is there anything in the debates which accompanied
the drafting and ratification of the Constitution which even suggests such a
David M. Levitan has put it felicitously: "Government just
was not thought to have any "hip-pocket" unaccountable powers" ( The Yale
Law Journal Vol. 55 April, 1946, No 3 p. 480). He, by examining
an analogous issue in the context of he U S Constitution, struck an apt
note but through reductio ad absurdum in words pregnant and
"Were one to assign binding effect to the more sweeping statements
on the scope of the external powers, then, it would appear that treaty provisions
even violative of of substantive phrases of the Constitution, i.e., the bill
of rights, or the Fifth Amendment, would be binding on the United States."
Reflecting on the idea of "inherent power"
He further observes:
"Regarding the "inherent" powers doctrine, it is well to add,
that though the existence of such powers has sometimes been referred to by the
courts and by writers on public law, there is little justification for the perpetuation
of such a theory. Its introduction was contrary to the spirit of a written constitution,
Whether or not a written constitution is the most desirable basis of government,
as long as we live under such a document there appears little room for the theory
of "inherent" powers. Instead a liberal and broad interpretation of such
provisions is more in harmony with our philosophy that the Constitution limits
governmental authority. The argument that the interpretation and reinterpretation
of constitutional phrases in the light of modern conditions makes little more
than a fiction out of the notion that we are living under the Constitution,
will not be denied. Our government should continue to meet the ever changing
needs of the people within the frame-work of the general philosophy of the supreme
Constitution with some specific prohibitions."
Michael D. Ramsey revisits the Inherent Powers Theory, and
concludes his exposition perceptively:
"In short, the drafters (of the Constitution) thought about
foreign affairs powers as they did other powers. Foreign affairs powers were
granted to the national government, or denied to the states, by the terms of
the national government's governing document. Careful attention to detail was
required to achieve the best allocation of powers between the national government
and the states. This is confirmed by the language of both the Articles and the
Constitution, by practice under the Articles and by the drafters' own explanation
of what they had written. They had no idea of an inherent division of
powers into "external sovereignty" and "internal sovereignty" that automatically
governed which powers would be held by the national government and which
by the states, but were groping for the right balance in a very real,
practical manner--- carrying over allocations from the Articles to the Constitution
where they seemed to work. And making adjustments where problems had arisen."
('The Myth of Extra constitutional Foreign Affairs Powers" William
and Mary Law Review Vol 42 No 2 Dec. 2000 at p. 431).
He points out that the U S Constitution was not drafted with
a background assumption of 'inherent powers' in foreign affairs. He found it
clear from the following pointers:
(1) First, the constitutional text itself delegates and allocates
core foreign affairs powers directly, which would be unusual if inherent powers
were widely assumed.
(2) Second, the drafters explained the foreign affairs powers
of the national government under the new Constitution as grants of
power, not as confirmations of existing inherent powers. No one suggested that
the Constitution's grants of foreign affairs powers were superfluous, although
members of the constitutional generation were quick to point out superfluous
provisions in other contexts.
(3) Third, the Articles of Confederation- an important model
for the Constitution in the foreign affairs area- had no concept of inherent
foreign affairs powers. The text of the Articles did not grant Congress certain
key foreign affairs powers- such as the power to regulate foreign commerce and
the power to enforce treaties and the law of nations- and Congress therefore
thought it lacked these powers. No one suggested that Congress had these powers
inherently. The only remedy for Congress' lack of textual foreign affairs powers
was thought to be amendment, a strategy pursued piecemeal and without success
in the mid-1780s, and ultimately accomplished by the Constitution's grant of
broader textual powers.
And Charles A. Lofgren went to the extent of even saying:
"... Curtiss-Wright ought to be relegated to history.'("United States
v. Curtiss-Wright Export Corporation:An Historical Reassessment " The Yale
Law Journal Vol 83 No 1, Nov 1973).
Hence I conclude, the Statement of the US President, discussed,
is founded on many misconceived notions with seeming reliance on shaky propositions.