Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements. It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.
Here are the key paragraphs in the letter;
[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them. In the case of a treaty, the Senate must ratify by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.
What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. 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.
OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.
First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent power to conduct foreign affairs. Certainly, it is very unusual. Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.
In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference. Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.
The most troubling line of the letter is: “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. ” But this is indisputably correct as a matter of law.
Maybe the strongest criticism of the letter is simply that it need not have been sent. The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate. But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.
Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here. There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole. The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter. Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal? (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).
In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history. Readers should feel free to add examples in the comments. I wonder if the Iranians will send a letter back?