Tom Cotton’s Letter Is Exactly Right

 

Tom CottonTime for a primer on international agreements, thanks to the controversy over Senator Tom Cotton’s letter to Iran. Joined by almost all of the Senate’s Republicans, Cotton’s missive warned Tehran that any nuclear deal with President Obama would not last unless it went to Congress for approval:

…We will consider any agreement regarding your nuclear-weapons program that is not approved by the 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.

As a description of American constitutional law, Senator Cotton has it exactly right. It’s as if he’s just informing Iran about the text of the Constitution. There are three types of international agreements under U.S. law:

Treaties: these require two-thirds of the Senate for approval. The U.S. has generally used treaties for the most serious commitments of American sovereignty, such as alliances and arms control.

Congressional-Executive Agreements: these require approval by the House and the Senate. Although unmentioned in the Constitution, they are nothing more than regular laws passed by Congress. These have been used for deals such as trade agreements.

Sole Executive Agreements: these are made by the president alone. They are constitutional only because they represent promises by the president on how to exercise his constitutional power.

The Cotton letter is right. If President Obama strikes a nuclear deal with Iran using just instrument (c), he is only committing to refrain from exercising his executive power — i.e., not attacking Iran or lifting sanctions under power delegated by Congress.  Not only could the next president terminate the agreement; Obama himself could terminate the deal.

In fact, the Cotton letter could have gone farther and pointed out that Obama may be making promises that he cannot keep. Since a sole executive agreement is only a commitment for the use of the executive’s authority, it cannot make promises about Congress. Under the Constitution’s Foreign Commerce Clause, Only Congress has the authority to impose international economic sanctions. Obama’s executive agreement cannot prevent Congress from imposing mandatory, severe sanctions on Iran without the possibility of presidential waiver (my preferred solution for handling the Iranian nuclear crisis right now). Obama can agree to allow Iran to keep a nuclear processing capability; Congress can cut Iran out of the world trading and financial system.

Doubts can be raised about the diplomatic wisdom of the letter. The United States has long sought, ideally, to treat the President as “the sole organ” of its foreign policy, though in reality Congress has dominated foreign policy for periods of American history. Centralization of diplomacy in the presidency has been thought to prevent foreign nations from manipulating our branches against each other, though students of bargaining — or anyone who has to haggle over the price of a car with a salesman and his mysterious manager — will understand that having to overcome a subsequent Senate veto could result in a better deal for the U.S.

As a matter of constitutional law, however, the Cotton letter should be no more controversial than a letter that simply enclosed a copy of the U.S. Constitution (without President Obama’s editing).

For those who want a fuller treatment, John Bolton and I went through the implications of this approach to the Iranian deal in the Dec. 31, 2014 issue of National Review:

For those who want to delve more deeply into the constitutional history and game theory of these international agreements, I’ve written the most recent (and I think one of the better) scholarly law articles on the subject (free download).

 

 

 

Published in Foreign Policy, Law
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  1. AIG Inactive
    AIG
    @AIG

    JimGoneWild:

    Tommy–You’re wrong. Obama is negotiating with an enemy of this country

    Seriously?

    • #31
  2. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    AIG:

    JimGoneWild:

    Tommy–You’re wrong. Obama is negotiating with an enemy of this country

    Seriously?

    I know it was a long time ago, but Obama promised before 2008 he would negotiate with places like Iran.

    I agreed with him.

    Diplomacy is owed to the soldier.  Before you ever ask a man to pull a trigger and kill another human being, you’d better have exhausted diplomacy first.

    • #32
  3. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    Really? You’re serious? You actually believe a President negotiating with another country over nuclear issues is grounds for impeachment? Or did you miss my line about Ricochet not turning into one of “those” websites?

    Depends on the outcome of the negotiations.  I believe the press reports from a couple of weeks ago about giving Iran a clear path to a nuclear weapon after a decade were a trial balloon by the administration to see what the American people would accept. They seem to have backtracked from those trial balloons in the last couple of days, so the public outrage seems to have chastened Obama.

    I have no qualms about recommending impeachment for a deal that allows Iran to develop a nuclear weapon with our approval.  I’m somewhat shocked that you are aruging that no matter how bad the deal is, we have to shut up and accept it.

    • #33
  4. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    JimGoneWild:

    Tommy–You’re wrong. Obama is negotiating with an enemy of this country against the wishes and opinions of the majority of Americans.

    The majority of Americans?  Now we have 317 million Secretaries of State?

    How about we ditch the 3 branches of government and go straight Athenian Democracy.

    Clear your lunch calendar tomorrow you have to go down to city hall and vote on who is going to be the next ambassador to the Pitcairn Islands.

    • #34
  5. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:Asqured,

    I hadn’t realized that the quote you gave wasn’t from the state department about this issue (your link doesn’t go to the quote it goes to a Wiki page about the Logan Act).

    That quote is from a 2006 report and is pretty generic, not defining what “legislative duty” would be.

    According to Wikipedia page, the quote is from 1975.  The footnote doesn’t link back to the source document, but the full text of the quote certainly implies it is the State Department speaking.

    • #35
  6. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Asquared:

    I have no qualms about recommending impeachment for a deal that allows Iran to develop a nuclear weapon with our approval.

    That’s the deal?  Citation please.

    I’m somewhat shocked that you are aruging that no matter how bad the deal is, we have to shut up and accept it.

    $1,000 to the charity of your choice when you can cut and paste the quote of me saying that.

    The Senate has powers to do something about a deal they don’t like and they can feel free to use them.

    Giving advice to the enemy while the President is in active negotiation isn’t one of them.

    • #36
  7. AIG Inactive
    AIG
    @AIG

    Tommy De Seno:

    AIG:

    JimGoneWild:

    Tommy–You’re wrong. Obama is negotiating with an enemy of this country

    Seriously?

    I know it was a long time ago, but Obama promised before 2008 he would negotiate with places like Iran.

    I agreed with him.

    Diplomacy is owed to the soldier. Before you ever ask a man to pull a trigger and kill another human being, you’d better have exhausted diplomacy first.

    I agree with you 100%. Clearly, there’s no future for you as a Newsmax headline writer.

    • #37
  8. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Where is Yoo?  He ought to be on this thread answering my charge that his “doubts can be raised about the diplomatic wisdom of the letter”  line should be the story.

    His piece is like telling the story of a foul ball which, by the way, preceded a grand slam.

    The promise of Ricochet over other websites is the opportunity to interact with the author of a post.

    I want to know what he thinks of the statesmanship of it, not the legality.

    • #38
  9. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    AIG:

    Tommy De Seno:

    AIG:

    JimGoneWild:

    Tommy–You’re wrong. Obama is negotiating with an enemy of this country

    Seriously?

    I know it was a long time ago, but Obama promised before 2008 he would negotiate with places like Iran.

    I agreed with him.

    Diplomacy is owed to the soldier. Before you ever ask a man to pull a trigger and kill another human being, you’d better have exhausted diplomacy first.

    I agree with you 100%. Clearly, there’s no future for you as a Newsmax headline writer.

    One less resume I have to send…

    • #39
  10. MarciN Member
    MarciN
    @MarciN

    John Yoo: As a matter of constitutional law, however, the Cotton letter should be no more controversial than a letter that simply enclosed a copy of the U.S. Constitution (without President Obama’s editing).

    This is all that matters.

    I was thinking while I was listening to Netanyahu that he understood our Constitution better than some Americans.

    To alert the Senate that Kerry was entering into a bad deal with Iran was a brilliant idea.

    Netanyahu did us, and the entire world, a favor.

    • #40
  11. user_379896 Coolidge
    user_379896
    @Mountie

    Cotton’s letter was out in the open and public. I see the protest from the media and I’m reminded of the deafening silence when we found out that Kennedy was found to be working against Reagan in Moscow.

    http://sweetness-light.com/archive/kgb-letter-details-kennedy-offer-to-ussr

    • #41
  12. Mendel Inactive
    Mendel
    @Mendel

    OkieSailor:Also, Mendel, I see the real value of this move as possibly motivating those voters who sat out the election in 2012 to get out and vote (Republican.)

    While I disagree about the “many voters who sat out 2012” claim (which is not supported by any data), I think it’s clear that this letter is targeted at the conservative base first and foremost, then at Obama, and then at Democrats in general, and the mullahs are the least-important audience.

    So this whole uproar has something of a kabuki feel to it.

    • #42
  13. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    $1,000 to the charity of your choice when you can cut and paste the quote of me saying that.

    The Senate has powers to do something about a deal they don’t like and they can feel free to use them.

    Giving advice to the enemy while the President is in active negotiation isn’t one of them.

    I’m sorry, but the implications of your arguments are unambiguous.  You’v argued explicitly that anyone that tries to influence the negotiations in any way should be thrown in jail.  Quite literally we have to shut up or face jail time.    And since the has already said they have no intention of presenting this deal to Congress, once the deal is signed, we have no choice but to take it.

    What is the famous Buckley(I think) phrase that He who say A must say B when B necessarily derives from A.

    But I do think Obama would gladly accept your argument that every Republican member of Congress, numerous Democrats, and me could be thrown in jail for daring to criticize his negotiations.

    • #43
  14. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Jim Flenniken:Cotton’s letter was out in the open and public. I see the protest from the media and I’m reminded of the deafening silence when we found out that Kennedy was found to be working against Reagan in Moscow.

    http://sweetness-light.com/archive/kgb-letter-details-kennedy-offer-to-ussr

    Wrong then is wrong now.   Cotton’s wrong as Kennedy.

    The low road is “your guy got away with it so our guy gets to get away with it.”

    The high road is to damn them both.

    You don’t give advice to the enemy during a negotiation with our President.

    • #44
  15. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Asquared:

    Tommy De Seno:

    $1,000 to the charity of your choice when you can cut and paste the quote of me saying that.

    The Senate has powers to do something about a deal they don’t like and they can feel free to use them.

    Giving advice to the enemy while the President is in active negotiation isn’t one of them.

    I’m sorry, but the implications of your arguments are unambiguous. You’v argued explicitly that anyone that tries to influence the negotiations in any way should be thrown in jail. Quite literally we have to shut up or face jail time. And since the has already said they have no intention of presenting this deal to Congress, once the deal is signed, we have no choice but to take it.

    What is the famous Buckley(I think) phrase that He who say A must say B when B necessarily derives from A.

    But I do think Obama would gladly accept your argument that every Republican member of Congress, numerous Democrats, and me could be thrown in jail for daring to criticize his negotiations.

    Do you have a degree in misquotation? You’re an expert.

    Criticize the President all you want.  Write to the enemy during a negotiation and tell him how he can get a stronger deal from our President?   That’s a Logan Act violation, or there is no such thing as the Logan Act.  Let’s just pass the “Cotton Act” repealing the Logan Act.

    • #45
  16. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    Do you have a degree in misquotation? You’re an expert.

    Criticize the President all you want. Write to the enemy during a negotiation and tell him how he can get a stronger deal from our President? That’s a Logan Act violation, or there is no such thing as the Logan Act. Let’s just pass the “Cotton Act” repealing the Logan Act.

    Meh, if criticizing the deal could be interpreted as trying to influence the deal, the Logan act applies.  here is the text

    Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

    It clearly includes indirect intercourse with intent to influence.  How about inviting the Prime Minister of Israel to address Congress.  That was clearly intended to influence the negotiations.  Should Boehner and every member that attended his speech be thrown in jail?

    In a modern era where the internet and TV is available anywhere, any post on the internet could easily be considered a violation of the Logan Act.

    I think you’ve massively overreached by suggesting that Cotton be thrown in jail, and you’ve done nothing since to convince me otherwise.

    • #46
  17. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Asquared:

    Tommy De Seno:

    Do you have a degree in misquotation? You’re an expert.

    Criticize the President all you want. Write to the enemy during a negotiation and tell him how he can get a stronger deal from our President? That’s a Logan Act violation, or there is no such thing as the Logan Act. Let’s just pass the “Cotton Act” repealing the Logan Act.

    Meh, if criticizing the deal could be interpreted as trying to influence the deal, the Logan act applies. here is the text

    Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

    It clearly includes indirect intercourse with intent to influence. How about inviting the Prime Minister of Israel to address Congress. That was clearly intended to influence the negotiations. Should Boehner and every member that attended his speech be thrown in jail?

    In a modern era where the internet and TV is available anywhere, any post on the internet could easily be considered a violation of the Logan Act.

    I think you’ve massively overreached by suggesting that Cotton be thrown in jail, and you’ve done nothing since to convince me otherwise.

    I can’t convince a closed mind.

    You speaking out isn’t even indirect intercourse with the other government official.

    Listening to the Prime Minister give a speech isn’t either.

    This was a letter to the enemy alerting him that his position is weak and he should be on the lookout for that.

    If you can’t see it, it ain’t because I because I didn’t show it to you.

    • #47
  18. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    You speaking out isn’t even indirect intercourse with the other government official.

    If there is a reasonable expectation that it will be read in the other government it is.

    You are one that wants to massively expand how this act is interpreted. Why do you think once you open the door you get to control how wide the door swings open?

    • #48
  19. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    Asquared:

    Meh, if criticizing the deal could be interpreted as trying to influence the deal, the Logan act applies. here is the text

    Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

    It clearly includes indirect intercourse with intent to influence. How about inviting the Prime Minister of Israel to address Congress.

    Listening to the Prime Minister give a speech isn’t either.

    BTW, you only responded to the listening to Netanyahu’s speech. What about the invitation. That was clearly private correspondence with another foreign government?  Should Boehner go to jail?

    Listening to a speech may be OK, but what about applauding at certain lines?  Could that be considered a violation of the act in your new broad interpretation? It was clearly intended to influence the negotiations?

    • #49
  20. AIG Inactive
    AIG
    @AIG

    Mendel:

    While I disagree about the “many voters who sat out 2012″ claim (which is not supported by any data), I think it’s clear that this letter is targeted at the conservative base first and foremost, then at Obama, and then at Democrats in general, and the mullahs are the least-important audience.

    So this whole uproar has something of a kabuki feel to it.

    Kabuki theater is exactly what the “base” has been asking for.

    It’s all Kabuki theater:

    – “Obama doesn’t call out Islam!”; i.e. we want a speech

    – “Netanyahu is the strongest leader in the world!”; i.e. we want a speech

    – “Tom Cotton really showed them baddies what America is about”; i.e. we want a speech

    – “Ted Cruz showed it to Obama with his 32 hour speech!”; i.e. we want a speech

    For people who constantly claim to want a “strong decisive leader” (which is about the last thing America needs, but hey, whatever, give them what they want)…they sure do get rejoiced a lot at empty pointless gestures.

    It’s the real-world equivalent of responding to a serious issue with a “yo mama” joke.

    I don’t know how the “base” doesn’t get that all they’re asking for, and getting, is jokers. Not serious individuals.

    • #50
  21. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno:

    You speaking out isn’t even indirect intercourse with the other government official.

    In my earlier search on the Logan Act, I came across this NPR article.

    In fact, the last time someone was even indicted was in 1803 — a Kentucky farmer wrote a controversial article in a local paper, but charges weren’t pursued.

    So, I guess your  attempts to differentiate between Cotton’s acts and mine were wrong.  An internet forum is far more accessible to a foreign government than a local paper in KY in 1803.  I can, and presumably should, go to jail for publicly criticizing the President’s negotiations with Iran.

    I guess the Ricochet moderators have a new role.  Preventing violations of the Logan Act.

    • #51
  22. EThompson Inactive
    EThompson
    @EThompson

    Mendel:Point being: I think the Iranian leadership understands how our system works. Sometimes better than we do.

    What I think was important about this letter is that it hopefully alerted Iran that there are some Americans who actually understand how our system works.

    • #52
  23. Palaeologus Inactive
    Palaeologus
    @Palaeologus

    Tommy De Seno:

    Jim Flenniken:Cotton’s letter was out in the open and public. I see the protest from the media and I’m reminded of the deafening silence when we found out that Kennedy was found to be working against Reagan in Moscow.

    http://sweetness-light.com/archive/kgb-letter-details-kennedy-offer-to-ussr

    The high road is to damn them both.

    You have an eccentric view of “the high road.”

    • #53
  24. AIG Inactive
    AIG
    @AIG

    EThompson:

    What I think was important about this letter is that it hopefully alerted Iran that there are some Americans who actually understand how our system works.

    Which made the Ayatollah, upon receipt of this shocking information, promptly surrender his country to American authority, and convert to Buddhism.

    Tom Cotton, upon hearing of his appointment as Interim Governor of the Province of Parthia, responded by saying “see, this is what a strongly worded letter can do!”

    PS: These must be such confusing times to be a “true conservative”. Tom Cotton is a Harvard graduate, i.e., a spawn of the Devil. Yet, also, “presidential material”? This has got to be confusing.

    • #54
  25. user_75648 Thatcher
    user_75648
    @JohnHendrix

    Mendel:I don’t have a real objection to the letter, but there is something ridiculous about Cotton’s attempt to “educate” the Iranians about the American system:

    Some of Iran’s top leaders have been in power for decades. During that time, they have survived American attempts to oust them, gone head-to-head with American diplomatic efforts (and often outfoxed them), and a few probably helped dupe the Reagan administration into selling them arms.

    Point being: I think the Iranian leadership understands how our system works. Sometimes better than we do.

    I agree that it would be silly to “educate” the Iranians.  Even though  Sen Cotton’s purported rationale for this letter is “education” I do not think he means it.  The elites on both side understand these sorts of things well enough and Sen Cotton knows it. Instead I think the letter’s actual purpose is to preemptively declare that any deal the Iranians make with Obama has an expiration date  of Jan 20, 2017.

    Put another way, the Senate Republicans are publicly declaring that this deal will not stand any longer than it takes for Obama to clean out his desk on Jan 20, 2017. By publicly throwing down the gauntlet the GOP is–in effect–making a promise to the voters that the U.S. will not voluntarily commit national suicide just because that’s Obama’s preferred policy.  This also sends a message to the Iranians that the party’s over in Jan 2017: there will be a new sheriff in town on the 20th.

    • #55
  26. user_129440 Member
    user_129440
    @JackRichman

    Mendel:I don’t have a real objection to the letter, but there is something ridiculous about Cotton’s attempt to “educate” the Iranians about the American system:

    The Iranian regime is not the only (or perhaps not even the principle) intended recipient of the Senate letter, as Mendel later acknowledges. It’s a device to announce the signatories’ skepticism of  the plan and their intention of asserting their constitutional disapproval in the likely event that Iran continues to violate its agreements.

    It has a much larger audience than Iran. It’s an attempt to signal to those that share concern about Iran’s behavior that help may, at long last, be on its way. Though not as rhetorically memorable as Reagan’s Evil Empire speech, it could have a similarly beneficial effect in boosting the morale of allies while the clock ticks down on the incompetent Obama administration.

    • #56
  27. user_645127 Lincoln
    user_645127
    @jam

    I did not read all of the comments so I’m sorry if this issue has already been raised. But did you guys see this petition at the White House website? It is calling for the 47 Senators to be indicted. It has over 200,000 names.

    https://petitions.whitehouse.gov//petition/file-charges-against-47-us-senators-violation-logan-act-attempting-undermine-nuclear-agreement/NKQnpJS9

    • #57
  28. MarciN Member
    MarciN
    @MarciN

    AIG:

    PS: These must be such confusing times to be a “true conservative”. Tom Cotton is a Harvard graduate, i.e., a spawn of the Devil. Yet, also, “presidential material”? This has got to be confusing.

    I was thinking that too. Is Harvard redeemed yet?  :)

    • #58
  29. MarciN Member
    MarciN
    @MarciN

    Over the last sixty years, the Democrats have been notorious for visiting the enemy during Republican administrations.  The Breitbart piece I’ve linked to is an excellent summary of the Democrats’ transgressions.

    At least Senator Cotton registered his lack of enthusiasm for the agreement the right way.

    He simply pointed out, in good lawyerly fashion, that the agreement would need to be approved by Congress.

    If Obama and Kerry were smart, they would use it to get a stronger agreement: “Sorry, Mr. Ayatollah, but my boss won’t let me agree to that.”

    • #59
  30. AIG Inactive
    AIG
    @AIG

    John Hendrix:

    This also sends a message to the Iranians that the party’s over in Jan 2017: there will be a new sheriff in town on the 20th.

    Yay!! More wars in a god forsaken s**thole in the desert. It’s been too long. I’ll start cleaning up my guns right now.

    So instead of getting a deal to get more inspectors and more monitoring and more access, so we can have a better idea of what they are doing, and stop them if they try to do something…we’ll get an Iranian leadership that knows it will be facing crazy warmongers in 2017…and will be even that more committed to develop a nuclear weapon before then.

    Yay!

    The Republicans never learn, do they? It’s as if 2003 never happened. Nope. Can’t remember a thing.

    • #60
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