[Excerpt] “Consider the following hypothetical scenario: after an appeal by the American Civil Liberties Union, the Supreme Court determines that the Patriot Act is unconstitutional. This decision so infuriates President Bush that he seeks out the advice of his legal counsel in a frantic attempt to bypass the Court’s ruling. After some research, President Bush’s legal advisers give him two options: he can either attempt to pass an amendment to the constitution or, with the “advice and consent of the Senate,” he can sign the Patriot Act as a treaty with a foreign nation. Either of these measures will evade the severity of the Court’s decision. After some reflection, the President chooses the treaty method because the probability of ratification is greater.
This hypothetical is not merely the fruit of an imaginative mind. Rather, it is a reconstruction of an event that actually occurred, albeit in quite a different context.”
Simcha Herzog, States’ Rights and the Scope of the Treaty Power: Could the Patriot Act be Constitutional as a Treaty?, 3 Pierce L. Rev. 161 (2005), available at http://scholars.unh.edu/unh_lr/vol3/iss2/4