Last Thursday, Senator Pat Toomey and I passed around a letter to my colleagues requesting that Senate leadership not bring treaties to the Senate floor for consideration during the lame-duck session of the 112th Congress. Here is an excerpt from that letter:
“Under Article 6 Section 2 of the Constitution, treaties that receive the advice and consent of the Senate will become the “supreme law of the land.” The writers of the Constitution clearly believed that all treaties presented to the Senate should undergo the most thorough scrutiny before being agreed upon. The American people will be electing representatives and senators in November, and new representatives carrying the election mandate should be afforded the opportunity to review and consider any international agreements that are outstanding at the time of their election.”
Treaties require a two-thirds majority in the senate for ratification and with the signatures of thirty seven of my colleagues, we will be able to prevent Senate leadership from hastily passing any new “supreme laws of the land” without the necessary consideration such an alteration to our Constitution and legal code would deserve.
The necessity of this letter was confirmed last week when Senate Democrats attempted to pass the UN Convention on the Rights of Persons with Disabilities (UNCRPD) by unanimous consent. My colleagues and I expressed concerns with UNCRPD when it came under consideration in the Senate Foreign Relations Committee for a variety of reasons:
Concern #1: Sovereignty- Treaties by their very nature affect our sovereign authority to govern ourselves. In this case, parties to this convention are subjected to the direction of an independent committee charged with the duties of making regulations and enforcing them. In the past similar independent committees have been known to make demands of state parties that fall outside the legal, social, economic and cultural traditions and norms of state parties.
Concern #2: “Best Interests of the Child-” The convention states “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.” Subjecting the protection of children with disabilities to an independent committee’s definition of the “best interests of the child” is not something I’m comfortable with. Several parental rights groups (including the Home School Legal Defense Fund) have shared this concern and fear this treaty could strip parents of fundamental rights. For example, a right that could be stripped could be the ability to home school a child with disabilities if the Committee (or those carrying out its recommendations) believes it is in the best interests of their child.
Concern #3: Dangerous Precedent for Treaties- By obligating the U.S. to recognize economic, social, and cultural entitlements as rights, this convention sets a precedent for treaties that would actually allow an international body to define our own domestic law. We have never allowed this type of precedent to be set by treaty. While the sentiment of the treaty is admirable, it would be better addressed in a different venue than a binding international law. The Senate needs much more than one hearing to investigate how this treaty will affect domestic federal and state law.
Concern #4: Superfluous Treaty for American Rights- The United States already has the most comprehensive legislation in the world to protect the rights of Americans with disabilities. The Americans with disabilities act of 1990 provides a private cause of action for the disabled for instances of discrimination in employment, public accommodations, transportation, etc. This treaty does not address any actual need the United States is experiencing with regard to legislation.
Concern #5: Abortion –There is specific language in the convention that requires parties to “provide persons with disabilities with the same range, quality and standard of free or affordable health care and programs as provided to other persons, including in the area of sexual and reproductive health and population-based public health programs.” The Obama administration has declared that abortion itself falls under “sexual and reproductive health” and therefore would fall under the requirements of this language.
As with every piece of legislation that comes across my desk, I read the UNCRPD with a fine-tooth comb, analyzed it with my staff and my senate colleagues, and found these five major concerns that give me great pause before allowing it’s passage into law. The Senate Foreign Relations committee convened just once to discuss the treaty and these concerns were not addressed, and while I am pleased that some of my colleagues are comfortable with it, I am not.
With the admittedly hurried passage of the Affordable Care Act and other similar pieces of legislation we have seen that there are those in Congress who have little problem with passing laws only to find out what’s in them later. But I was not elected to pass as many pieces of legislation as possible. I was elected to pass legislation that directly benefits my constituents in Utah and the people of the United States while protecting their freedoms and unalienable rights as citizens.
This treaty does not accomplish those goals and illustrates precisely why we have chosen not to support any treaties between now and the end of the lame duck session of the 112th congress.