Or, a tale of senatorial overreach …
A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration wonâ€™t last after Obama leaves office.
Organized by freshman Senator Tom Cotton and signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul, the letter is meant not just to discourage the Iranian regime from signing a deal but also to pressure the White House into giving Congress some authority over the process.
â€œIt has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system â€¦ Anything not approved by Congress is a mere executive agreement,â€ the senators wrote. â€œThe next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.â€
One suspects that by now the heads of Iran’s state department have figured out our constitutional system pretty well. They may understand it better than Rand Paul does, in fact.
Arms-control advocates and supporters of the negotiations argue that the next president and the next Congress will have a hard time changing or canceling any Iran deal — — which is reportedly near done — especially if it is working reasonably well.
Many inside the Republican caucus, however, hope that by pointing out the long-term fragility of a deal with no congressional approval — something Supreme Leader Ayatollah Ali Khamenei has also noted — the Iranian regime might be convinced to think twice. “Iran’s ayatollahs need to know before agreeing to any nuclear deal that â€¦ any unilateral executive agreement is one they accept at their own peril,â€ Cotton told me.
That “advice and consent of the Senate” bit in Article II Section 2 of the Constitution has always limited presidential maneuvering in foreign policy, but off the top of my head I can’t think of a time senators took it on themselves to do an end run around the executive branch to warn a foreign government not to negotiate with the U.S. Certainly the Constitution doesn’t give senators the authority to directly negotiate with foreign powers.
Â Republicans also have a new argument to make in asserting their role in the diplomatic process: Vice President Joe Biden similarly insisted — in a letter to then-Secretary of State Colin Powell — on congressional approval for the Moscow Treaty on strategic nuclear weapons with Russia in 2002, when he was head of the Senate Foreign Relations Committee.
That’s hardly the same thing. There’s nothing wrong with a U.S. senator reminding a U.S. secretary of state about that. However, negotiations with prickly foreign powers being what they are, it’s usually considered important for the senate to not undermine ongoing negotiations by contacting foreign countries directly.
Still, Senators from both parties are united in an insistence that, at some point, the administration will need their buy-in for any nuclear deal with Iran to succeed. Thereâ€™s no sign yet that Obama believes this — or, if he does, that he plans to engage Congress in any meaningful way.
Hello? Article II section 2 is still in effect, is it not? I found a legal article explaining how this works:
The letter states that â€œthe Senate must ratify [a treaty] by a two-thirds vote.â€Â But as the Senateâ€™s own web page makes clear: â€œThe Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratificationâ€ (my emphasis).Â Or, as this outstandingÂ 2001 CRS Report on the Senateâ€™s role in treaty-making states (at 117): Â â€œIt is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.â€Â Ratification is the formal act of the nationâ€™s consent to be bound by the treaty on the international plane.Â Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.Â As the CRS Report notes: â€œWhen a treaty to which the Senate has advised and consented â€¦ is returned to the President,â€ he may â€œsimply decide not to ratify the treaty.â€
This is a technical point that does not detract from the letterâ€™s message that any administration deal with Iran might not last beyond this presidency. Â (I analyzed this point hereÂ last year.) Â But in a letter purporting to teach a constitutional lesson, the error is embarrassing.
Congress is embarrassing, period.
Some rightie sites like Townhall are waxing hysterical that the President intends to bypass the Senate’s “ratification power,” but of course the current treaty is being negotiated the same ways treaties are always negotiated, and I haven’t heard a peep from the White House declaring that the usual processes wouldn’t be adhered to.
I found this on Findlaw:
Negotiation, a Presidential Monopoly .–Actually, the negotiation of treaties had long since been taken over by the President; the Senate’s role in relation to treaties is today essentially legislative in character. 259 ”He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it,” declared Justice Sutherland for the Court in 1936. 260 The Senate must, moreover, content itself with such information as the President chooses to furnish it. 261 In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty, of reservations to the act of ratification, or of statements of understanding or other declarations, the formal difference between the first two and the third being that amendments and reservations, if accepted by the President must be communicated to the other parties to the treaty, and, at least with respect to amendments and often reservations as well, require reopening negotiations and changes, whereas the other actions may have more problematic results. 262 The act of ratification for the United States is the President’s act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business. 263 Conversely, the President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do. 264
Itâ€™s safe to say that no president in modern times has had his legitimacy questioned by the opposition party as much as Barack Obama. But as his term in office enters its final phase, Republicans are embarking on an entirely new enterprise: They have decided that as long as he holds the office of the presidency, itâ€™s no longer necessary to respect the office itself. …… Itâ€™s one thing to criticize the administrationâ€™s actions, or try to impede them through the legislative process. But to directly communicate with a foreign power in order to undermine ongoing negotiations? That is appalling. And just imagine what those same Republicans would have said if Democratic senators had tried such a thing when George W. Bush was president.