That's a very good point - it's the basic reason that Obama can't 'end the drug war with a stroke of his pen' as some people seem to imagine, because treaties ratified by the US have almost constitutional standing in legal terms, and need to be formally derogated rather than legislated away. While the US could certainly do so without suffering meaningful sanctions or major geopolitical harm over the long term, indifference to treaty obligations is often the hallmark of an insular political viewpoint - but then such people also tend to be uninterested in the ramifications for international trade and cross-border institutions in the first place.
That said, the SCND dates back to 1961 which was 53 years ago, and those countries which have openly stepped back from full compliance with it such as Portugal and Uruguay don't seem to have incurred any disadvantage or sanctions worth talking about, though you might argue that they had little or no political capital to lose in the first place. I do think there's a global shift towards looking at drug abuse and addiction as public health issues rather than moral vices, so while there's pressure form some quarters to maintain or strengthen anti-drug enforcement there's also pressure to adopt more utilitarian policies focused on harm minimization and demand management.
I think the convention will not be explicitly derogated any time soon, but will rather be allowed to become a dead letter through diminished contributions of fiscal and political capital for enforcement, while being nominally and loudly upheld by more authoritarian regimes as both a blunt instrument in trade negotiations and as a proxy for the rule of law.
Given that the executive branch has prosecutorial discretion and never has been shy of using it when it mattered, I do not believe the "treaties make us do this" argument. Maybe the federal government could not have full de-jure legalize for some technical reasons. But it is completely capable to restrain the zeal of prosecution and reduce both the number of cases and the priority of those to a wide degree. If only they wanted to.
Instead, the government tries to squash the legalize even when it happens (look up Operation Choke Point[1]). It's not something forced by treaties, it's a voluntary act. Not that the US is in mortal fear of sanctions from Pakistan or Colombia for not fighting drugs enough, but it's not treaties that make police kill a teen because they suspect he has a small bag of drugs [2] or kill a senior citizen in his own bed because they suspect he has some drugs (he didn't) [3]. It's something that the government can and must fix, and no treaty prevents it from doing so. The legal technicalities can come later, but the switch from a mentality where the government is at war with its own citizens should happen now. It should have happened years ago, actually.
I don't disagree about enforcement policy, which is in dire need of a top-to-bottom overhaul. It seems to me that the US could be fully compliant with its treaty obligations and even maintain an unpermissive attitude to drug use without enforcing the paramilitary enforcement tactics that have become commonplace. But the legal/constitutional framework within which drug policy is often overlooked in such debates, which was why I wanted to discuss it here.
The difficulty in removing them is also why legislation enacted by way of treaties should be vigorously debated in an open forum, as opposed to the way the Trans Pacific Partnership (TPP) has been negotiated.
I think up-or-down votes or referenda are more appropriate for that. Multilateral treaties are inherently legislative documents, and legislating-to-legislate looks like a self-defeating increase in complexity - there's a reason that governments have executive as well as legislative functions, even though they ,may not always yield results we like in the short term.
I mean, imagine if the votes of US senators on individual issues were governed by the outcome of votes in state legislatures - you'd have a more responsive democracy on the face of things but in practice legislative work would slow to an utter crawl and you'd have even more procedural maneuvering than we do now.
I'm personally hoping the incoming congress gives the President fast-track authority to negotiate both the TPP and TTIP, which would be a shrewd political tactic; while I don't much like that it might benefit the GOP, that's outweighed by my support of free trade and my low opinion of economic populism and national sovereignty (just to be up=front about my political biases).
> I'm personally hoping the incoming congress gives the President fast-track authority to negotiate both the TPP and TTIP
He doesn't need congressional approval -- that's exactly how the TPP has been getting negotiated this entire time -- and is exactly why it's so outstandingly bad.
Back room deals regarding IP rights (pushed hard by the MPAA, RIAA and other lobbying organizations) among many other blanketed things that the public has no knowledge of nor any say in but will ultimately be as effective as law here in the country. (so much for the legislative branch)
I could say the same thing about the executive branch, which persons like yourself seem to think should merely administrate the legislative will. Our constitutional design institutionalizes tension between these two branches of government, and very explicitly grants the President power to make treaties, subject to a 2/3 approval from the Senate for ratification.
Trade agreements are not exactly the same as treaties, but there is ample precedent for Congress pre-emptively authorizing the President to negotiate them. The consitutional basis for this is discussed in some detail near the start of the CRS paper linked above.
PS I don't mean you're mistaken about your disapproval of fast track negotiation - that's a completely valid opinion, albeit one with which I disagree. I just meant you were mistaken in regard to your assertion that the President doesn't need to consult Congress. Sorry if that wasn't clear.
Treaty obligations do not have "almost constitutional standing". Treaty obligations have exactly the same standing as any law passed by Congress, whether they're constitutionally ratified (which is extremely rare), or congressional-executive (the common kind), in which the president signs a treaty that is completely non-binding on the US, but promises that Congress will enact legislation to fulfill its terms[0].
In either case, there is zero domestic legal consequence to deciding to ignore the treaty provisions. Technically a decision by the executive branch to violate treaty provisions is a violation of federal law, but there are no consequences. Obviously, if the US decides to violate a treaty agreement there may well be international consequences, including other nations' decisions to back out of the treaty, to refuse to trust the US in other negotiations or treaties, etc. All of that, of course, is exactly the same regardless of whether or not there is a formal process of derogation.
[0] There's a third form of treaty, "sole executive". That form is applicable when the treaty obligations are entirely within the scope of presidential power, such as Status Of Forces Agreements which the president executes in his role as Commander-In-Chief. Those, of course, have no legal standing at all except as lawful orders from the president to his employees.
>because treaties ratified by the US have almost constitutional standing in legal terms, and need to be formally derogated rather than legislated away.
As a matter of domestic law, that's not the case. Treaties are on the same level as federal legislation and the last in time controls. There are a series of court cases that disfavor implied abrogragation under comity principles, but if a later-in-time statute is in clear and unavoidable conflict with an earlier treaty, the statute controls.
Thanks for the correction. I certainly overstated it - I was thinking about pre-emption of state law and the limits of administrative fiat, and let my imagination run away a bit!
That said, the SCND dates back to 1961 which was 53 years ago, and those countries which have openly stepped back from full compliance with it such as Portugal and Uruguay don't seem to have incurred any disadvantage or sanctions worth talking about, though you might argue that they had little or no political capital to lose in the first place. I do think there's a global shift towards looking at drug abuse and addiction as public health issues rather than moral vices, so while there's pressure form some quarters to maintain or strengthen anti-drug enforcement there's also pressure to adopt more utilitarian policies focused on harm minimization and demand management.
I think the convention will not be explicitly derogated any time soon, but will rather be allowed to become a dead letter through diminished contributions of fiscal and political capital for enforcement, while being nominally and loudly upheld by more authoritarian regimes as both a blunt instrument in trade negotiations and as a proxy for the rule of law.