09 Mar Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place
I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday. The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.
In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.
[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”
What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.
[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”
“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”
Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment). But think about it. Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law? Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?
So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here. The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress. And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.
Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?