Flirting With Insurrection

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 won’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.

“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The 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.”

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 … any unilateral executive agreement is one they accept at their own peril,” 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.

 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. There’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 “the Senate must ratify [a treaty] by a two-thirds vote.”  But as the Senate’s own web page makes clear: “The 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 ratification” (my emphasis).  Or, as this outstanding  2001 CRS Report on the Senate’s role in treaty-making states (at 117):  “It 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.”  Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane.  Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.  As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

This is a technical point that does not detract from the letter’s message that any administration deal with Iran might not last beyond this presidency.  (I analyzed this point here last year.)  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
So, since long before the current President and Senate were in office, it’s been determined that the Senate has no authority to intrude into negotiations and is supposed to wait until the President submits a treaty to them for approval. And then they can propose changes if they want to. Those 47 senators were well outside the limits of their constitutional authority.
Update: Armin Rosen of Business Insider writes that the White House isn’t negotiating a treaty but an “executive agreement.” “It’s indisputable that the next president could cancel the deal unilaterally. And if Obama or the Iranians were uncomfortable with this, they would have insisted on Congressional ratification by now. They haven’t,” Rosen writes.

It’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, it’s no longer necessary to respect the office itself. …
… It’s one thing to criticize the administration’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.
Yes, just imagine.

29 thoughts on “Flirting With Insurrection

  1. It’s a continuation of Boehner’s invite of Netanyahu. How’s that workin for ya, Republicans?

  2. It’s not just insurrection, these self-important Republican uber-Christian @$$clowns are borderline traitors, whose activity may be looked upon as treason.

    I hope that in his last State of the Union speech, as he finishes, President Obama turns to the Republican side, flips them the double-bird, and tells them to go and do the anatomically impossible to themselves!!!

    But, our brilliant and wonderful President is too much of a gentleman to do something only someone as crass and vulgar as myself, would think of doing.

  3. “signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul”

    It is surprising to me that Randall (son of KKK Ron) would sign on to this? I guess it’s just pure politics for him, the rest of these miscreants are scared sh!tless of peace with Iran. How will they pimp their buddies weapons of war to Israel if the US has an agreement with Iran? The only thing that scares the right-wing more than peace is peace negotiated by Obama!

  4. Huh. Why is it I hear banjo music when I read the phrase “freshman senator Tom Cotton?”

    Wait… I hear dueling banjo music! Weird.

  5. The Constitution provides that no treaty will be ratified without the Senate’s say-so. That Tom Cotton chose not to tease out the two-step process of the resolution-for-ratification and ratification itself makes no difference.

    The majority of the Senate (whether correctly or incorrectly) does not believe the President’s proposed deal will promote peace and the interests of the US and its allies. That is their prerogative, and it is not treason for the Senate to stand upon its Constitutional duties of advice and consent.

    If all this is insurrection, then it began in 1789!

    Cotton’s letter is a warning to the President and the Democrats (and people like you) that the Constitution still exists. That’s why its an ‘open’ letter.

  6. Gosh, how did I guess this was all about bombs to Israel, from Think Progress:

    “Cotton, a freshman senator from Arkansas, has a long record in trying to scuttle any deal with Iran. In 2013, Cotton labeled an interim agreement that froze Iran’s nuclear program “humiliating defeat” for the U.S. and a “total victory” for Iran and pressed for additional sanctions. He pressed Congress to supply Israel with bunker buster bombs to aid Israel in a military strike against Iran and introduced legislation to punish the family members of people who violate Iran sanctions, a measure that he later withdrew after legal experts called it unconstitutional.”

    • Ken, yes, your comment made it out of moderation. You broke one of my comment rules, however, by commenting without reading the post. Had you read it, you would have learned that what the senators did was unprecedented and does not at all conform to how Article II, Section 2 has always been read. So, you’re banned from commenting here further, but I just wanted you to know why.

  7. It’s certainly overreach, and flirts with insurrection. Interestingly, it may also be wrong for other reasons – as I understand it all, the agreement with Iran will *not* be a treaty. So, while yes, another President could undo it, it does not need to be ratified by Congress under any interpretation.

  8. Cotton, that pencil-necked sociopathic geek, doesn’t really care about Israel.

    All he cares about, is that he, like the other American uber-Christian loons believe they need Israel for their End Times scenario, and Jesus Redux.
    They can’t have the Iranian’s do it any harm. They need Christians to obliterate the Jews in and out of Israel – or, left behind, or what the f*ck ever it is they believe.

  9. Well, that letter reinforces my theory that the Repugs are all a bunch of asswipes. Marco Rubio put (Fla) in parenthesis next to his signature. I guess that was to eliminate any confusion with the other Senator with the initials MR or maybe he just wanted to express his pride in being a Floridian.
    Yeah, you go Marco…Florida Rulz!

  10. When you put up with insurrectionist speech for so long it doesn’t seem surprising when a group vaults completely over that line and lands in the treasonous sand pit. I can’t even imagine what the repugs would have done if we did this to Shrub. They wore out their knees of their suits genuflecting to Netenyahu and several said out loud that they wished he was our president instead of Obama. I’m afraid that what ever chance there may have been to resurrect what is left of this once great country has been extinguished at the feet of nihilist Repugs.

  11. You have to look to the master of backstabbing and double-dealing to understand what’s going on here.

    “Did Richard Nixon’s campaign conspire to scuttle the Vietnam War peace talks on the eve of the 1968 election to capture him the presidency?

    Absolutely, says Tom Charles Huston, the author of a comprehensive, still-secret report he prepared as a White House aide to Nixon. In one of 10 oral histories conducted by the National Archives and opened last week, Huston says “there is no question” that Nixon campaign aides sent a message to the South Vietnamese government, promising better terms if it obstructed the talks, and helped Nixon get elected.”

    Nixon interfered (as a private citizen, which made it illegal) with the peace talks to better his political prospects. The same thing is happening here.

    Suppose we DO get a working and verifiable deal with Iran which prevents them from developing a bomb. Suppose the former Sec of State gets some of the credit for the peace deal….. How does this play in the presidential election. The GOP will do ANYTHING to promote chaos, fear and anxiety in the minds of voters – and a peace deal ruins their hopes for the presidency.

    Nothing that the GOP is doing has any distant relation to governing – it’s all about consolidating total power – and that means the White House in 2016.

    Read more:

  12. It does not seem that what they did was in the best interest of our Country; but, the Republicans don’t care about the “best interests of the Country anymore. History is not going to look kindly at the actions of the Republicans that they have taken against our first black President. For now, I am going to file their actions regarding this letter and their invitation to Netanyahu as an unforgivable breach of etiquette on their part. The Republican party seems to be sorely lacking in gentlemen and gentlewomen.

  13. I see on Facebook that congress is in violation of the Logan act, there is a petition circulating in regards to this matter. Interesting times.

  14. When I first heard news of these Republican antics, I really could not believe anyone would be so stupid. Taking party politics to public foreign policy is just plain embarrassing for those of us who prefer a bit more national dignity.

  15. I should have written “the republicans in congress are in violation of the Logan act “. I guess y’all knew what I was getting at. Bonnie, well put !

  16. The current Iranian government has a very good idea of how the American government works. Almost all of their cabinet members and the Prime Minister (?) attended colleges in the US and received their Ph.Ds here. The PM went to the University of Denver, received his Ph.D. from there… another person who received her Ph.D. from there is Condi Rice.

  17. “The Constitution provides that no treaty will be ratified without the Senate’s say-so.”

    Well the only thing you have there that relates to this situation is “no treaty”, this aint no treaty. The US and other countries involved are not altering our nuclear arsenals one bit. We are agreeing to lift some sanctions in exchange for Iranian concessions and inspections. Go back to the Blaze!

  18. Sen. Cotton reminds me of Norman Bates from Psycho. ( No offense to Tony Perkins. ) Maybe we should check his relationship with his mother or at least the upstairs of his house.

  19. Sen. Cotton reminds me of Norman Bates from Psycho.

    I think Sen Cotton is a psychopath..When he used the phrase, “that’s all I want” while adressing the Heritage foundation he gave himself away for being the psychopath he is. I know that just by those few words is seems I couldn’t possibly determine that he is a psychopath, but I have extensive experience in identifying psychopaths, and that little four word combination is the strongest clue to uncovering a true psychopath.
    It’s a projection of innocence when deviance is the true motive.

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