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. user_75648 Thatcher
    user_75648
    @JohnHendrix

    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.

    I think that MarciN has a point: These Dems are essentially collaborators.  In contrast to Sen. Cotton.

    • #61
  2. Autistic License Coolidge
    Autistic License
    @AutisticLicense

    AIG, Tommy: sorry, no. This wasn’t Jimmy Carter or Nancy Pelosi attempting to privately undermine a sitting President. This is 47 legislators quoting the Constitution, which has not yet been denied to public access. The letter doesn’t attempt to cut any side deals. If Obama doesn’t feel the love, he could try meeting with some of the 47 and pitching his plan.

    If we come out appearing divided, I don’t think we’ve given away any secrets. Any deals with Iran must eventuate in a treaty, and a treaty needs a congressional vote. And the process of moving toward a treaty has not been followed. The President must do the homework here before going out to play.

    • #62
  3. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    Tommy De Seno:

    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.

    No, we have a House of Representatives and a Senate that represent us.

    More to point: Obama has performed executive actions on healthcare, immigration and law enforcement. All counter to polls, the Constitution, opinions of the US Congress and the law. I don’t question his legal authority to negotiate with Iran, but he has already said he will not consult the Senate (i.e. get a vote) and will use executive action. This is a clear flag of intention. If Obama were an enemy of the US and was bent on giving advantage to Iran, how would he act any different?

    Since the vote of Congress is being dismissed, how do we separate out bad intent from good intent? What is the check?

    The Senate letter is nothing different, as stated, than sending Iran a copy of the Constitution. Is that a problem? What if the 47 Senators had sent Iran a letter agreeing with Obama, would that be acceptable? Legal? Could they go to jail for that?

    Of course Obama can be impeached for his negotiations with Iran. Impeachment is a political action, not law enforcement action.

    This response is sincere and not an attack on you. I’ve not used ‘snark’ or backhanded insults. I request the same from you.

    • #63
  4. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    JimGoneWild:

    Tommy De Seno:

    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.

    This response is sincere and not an attack on you. I’ve not used ‘snark’ or backhanded insults. I request the same from you.

    You are correct and I apologize.

    Yesterday was a loooooong day.  I was tired at the end and indeed on a fresh look this morning I can see I got a bit snarky there.    When the brain gets tired, intellect gets replaced with snark.  You deserved better.

    • #64
  5. Mario the Gator Inactive
    Mario the Gator
    @Pelayo

    AIG:

    Iran has a nuclear energy program. There’s inspectors that are monitoring it, and according to everyone involved, there’s no nuclear weapons capability being developed. The “deal” is to impose greater levels of monitoring and inspection.

    In the absence of such a deal, we lose even more insight into Iran’s nuclear program. Which will guarantee they will get the bomb some day. How exactly is this in the benefit of the US?

    I have to question your source in making this claim about Iran’s program and its intentions.  Your claim would make Israeli Prime Minister Netanyahu an outrageous liar along with everyone else who has expressed some knowledge of Iran’s enrichment of nuclear materials and Iran’s work on the development of inter-continental ballistic missiles to deliver nuclear warheads.  If “everyone involved” is claiming that Iran is simply operating nuclear power plants and not developing weapons, then what are President Obama and Secretary Kerry negotiating with them about to begin with?

    I also have serious doubts about how much access and insight we are currently getting into Iran’s nuclear program.  When has the current regime shown itself to be open and honest about anything other than its desire to destroy the Jewish people?

    • #65
  6. EThompson Inactive
    EThompson
    @EThompson

    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!”

    Many on this site complain about the GOP’s refusal to send warnings to our enemies and specifically outline the consequences of their actions. This young senator did exactly that and I will support him all the way.

    • #66
  7. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    KC Mulville:A frightening thought … never mind the appearances they put on for the press … are we looking at good cop bad cop here?

    If so, Obama is totally fumbling the “good cop” part.

    • #67
  8. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    I wonder how many of those screaming TRAITOR! at the top of their lungs have actually read Cotton’s open letter.

    It’s very brief, so let’s quote it in full:

    It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution—the power to make binding international agreements and the different character of federal offices—which you should seriously consider as negotiations progress.

    First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.

    Second, the offices of our Constitution have different characteristics. For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then—perhaps decades.

    What these two constitutional provisions mean is that 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.

    We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.

    Sincerely,

    Guess I’m having a hard time seeing how that’s traitorous or requires throwing Cotton, et al in the slammer. As for the charge of aiding the Iranian mullahs, that’s laughable at best. At best.

    • #68
  9. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    Tommy De Seno:

    JimGoneWild:

    Tommy De Seno:

    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.

    This response is sincere and not an attack on you. I’ve not used ‘snark’ or backhanded insults. I request the same from you.

    You are correct and I apologize.

    Yesterday was a loooooong day. I was tired at the end and indeed on a fresh look this morning I can see I got a bit snarky there. When the brain gets tired, intellect gets replaced with snark. You deserved better.

    Accepted. I love reading your stuff by-the-way.

    • #69
  10. AIG Inactive
    AIG
    @AIG

    EThompson:

    Many on this site complain about the GOP’s refusal to send warnings to our enemies and specifically outline the consequences of their actions. This young senator did exactly that and I will support him all the way.

    It doesn’t make it any less Kabuki theater.

    Pelayo:

    Your claim would make Israeli Prime Minister Netanyahu an outrageous liar

    I have no problem with that.

    If “everyone involved” is claiming that Iran is simply operating nuclear power plants and not developing weapons, then what are President Obama and Secretary Kerry negotiating with them about to begin with?

    If you’ll re-read what I wrote, I made no claims as to Iran’s intent or capabilities.

    My comment was that the intent of this deal is to get…better monitoring and inspection so we can have a better picture of their intent and capabilities.

    I also have serious doubts about how much access and insight we are currently getting into Iran’s nuclear program

    Which is why need to get better access and monitoring. Not warmongering.

    Autistic License:AIG, Tommy:sorry, no. This wasn’t Jimmy Carter or Nancy Pelosi attempting to privately undermine a sitting President. This is 47 legislators quoting the Constitution, which has not yet been denied to public access. The letter doesn’t attempt to cut any side deals. If Obama doesn’t feel the love, he could try meeting with some of the 47 and pitching his plan.

    If we come out appearing divided, I don’t think we’ve given away any secrets. Any deals with Iran must eventuate in a treaty, and a treaty needs a congressional vote. And the process of moving toward a treaty has not been followed. The President must do the homework here before going out to play.

    Obviously, the intent of the letter wasn’t to just “quote the Constitution”

    The intent of the letter was to make it clear that GOP legislators are hell-bend on starting a war, no matter what, no matter why, no matter who, no matter where.

    Warmongering was the intent of the letter. That much ought to be clear.

    • #70
  11. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    AIG:The intent of the letter was to make it clear that GOP legislators are hell-bend on starting a war, no matter what, no matter why, no matter who, no matter where.

    Warmongering was the intent of the letter. That much ought to be clear.

    Not at all. Please show me this “clear” language in the letter. I helpfully posted it above.

    • #71
  12. MarciN Member
    MarciN
    @MarciN

    It was not warmongering. The letter must be read at face value. It simply said that the United States would not be bound by the terms of the agreement until Congress approved it.

    This was actually helpful to the administration.

    It created some leverage for Kerry and Obama.

    It didn’t contradict them. It didn’t undermine them. It didn’t go behind their backs. It stated facts.

    It didn’t promise anything. And it didn’t refer to the agreement’s specifics at all.

    I have the utmost respect for Senator Cotton. It was a brilliant and decisive move.

    Kerry has been making us look foolish around the world. Cotton’s letter put Iran on notice that Kerry may be stupid, but not all of us are.

    We cannot appear weak and stupid to the terrorists.

    • #72
  13. EThompson Inactive
    EThompson
    @EThompson

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

    And history even more so. I need to quote Ruth R. Wisse from her latest essay in the Weekly Standard:

    In fact, the Jews were never the passive beggars Yudka described but rather a people constituted politically very differently from others. Religions that claimed to be universal tried to make others subject to their truth. Nations that claimed superiority tried to expand their reach and powers. Jews who were dedicated to pursuing their way of life among other nations were consequently dependent on the reciprocal toleration of other nations. Belligerents through the millennia found easy prey in people who had no incentive to aggress against them. The malignancy of some of those Gentile nations does not reflect on the achievements of the Jews.

    Jews became the no-fail target of the world’s most murderous regimes—Nazism yesterday, Iran today. As targets of the foulest forces, they became a constant reminder of the evil that must be resisted. Netanyahu used this history to remind Americans: Unless you soldier effectively, you will incite genocidal hostility against you.

    Perhaps a life lesson for Americans?

    • #73
  14. MarciN Member
    MarciN
    @MarciN

    EThompson:

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

    And history even more so. I need to quote Ruth R. Wisse from her latest essay in the Weekly Standard:

    In fact, the Jews were never the passive beggars Yudka described but rather a people constituted politically very differently from others. Religions that claimed to be universal tried to make others subject to their truth. Nations that claimed superiority tried to expand their reach and powers. Jews who were dedicated to pursuing their way of life among other nations were consequently dependent on the reciprocal toleration of other nations. Belligerents through the millennia found easy prey in people who had no incentive to aggress against them. The malignancy of some of those Gentile nations does not reflect on the achievements of the Jews.

    Jews became the no-fail target of the world’s most murderous regimes—Nazism yesterday, Iran today. As targets of the foulest forces, they became a constant reminder of the evil that must be resisted. Netanyahu used this history to remind Americans: Unless you soldier effectively, you will incite genocidal hostility against you.

    Perhaps a life lesson for Americans?

    That is a very interesting perspective. I have to ponder this.

    Thank you, ET. :)

    • #74
  15. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    MarciN:It was not warmongering.

    No, of course it wasn’t. And it’s hard for me to take seriously anyone who suggests that it was. So I won’t.

    • #75
  16. user_5186 Inactive
    user_5186
    @LarryKoler

    DrewInWisconsin:

    MarciN:It was not warmongering.

    No, of course it wasn’t. And it’s hard for me to take seriously anyone who suggests that it was. So I won’t.

    No, Obama is inviting warmongering. Cotton and his supporters are trying to prevent warmongering by warmongers who have a nuclear bomb.

    • #76
  17. user_348483 Coolidge
    user_348483
    @EHerring

    Tommy De Seno:

    John Yoo:Doubts can be raised about the diplomatic wisdom of the letter.

    Gee, ya think? Way to bury what should be your lead.

    TOM COTTON IS THE DIXIE CHICK OF THE US SENATE.

    I’m yelling because I hope he hears me. This letter is akin to criticizing the president while on foreign soil.

    We can’t have 100 Secretaries of State nor 100 Presidents.

    Who cares if his letter is legally correct? From a negotiating standpoint it’s so counter-productive I’ll call it stupid, for what it is.

    Has anyone who supports this letter, Tom Cotton included, had to negotiate in their whole lives? Have they ever walked into a room filled with other sharp negotiators and walked out having convinced those people to do something they didn’t want to do?

    What Tom Cotton’s letter makes clear is that President Obama was actually giving away in this negotiation the sleeves off his vest – absolutely nothing. He wasn’t going to ask the Senate to tie us to a formal treaty. That deserves an “atta boy” from the Senator, not a letter to our adversary telling Iran “Don’t fall for it, it’s a trick!” Good grief. It’s damn near treason.

    You worked for George Bush, John Yoo. Imagine if a Democrat senator called Putin during arms negotiations and said, “Listen Vlad, George is being a little crafty here. Make sure you pin him down on x, y and z so you don’t lose the benefit of your bargain later on.” Would your Ricochet column really be about the legality of that call?

    The Senate’s role here is to vote on a treaty after it is brought to them. It is not to be in the negotiating room, and certainly not to undermine the position of the President during the negotiation. Goodness.

    Yes I know President Obama has done some bad things and has seemed to skirt the Constitution. I don’t like him. Guess what I do like – Ricochet. I never wanted this place to be one of those websites that piles on the President blindly no matter what.

    I have a message for Tom Cotton – Barack Hussein Obama is your President, and when it comes to dealing with the Iranians, you’d sure as hell better stand by his side.

    Cotton has a phone and a pen and he used them.  Somebody has to lead from the front.

    • #77
  18. user_348483 Coolidge
    user_348483
    @EHerring

    AIG:

    EThompson:

    Many on this site complain about the GOP’s refusal to send warnings to our enemies and specifically outline the consequences of their actions. This young senator did exactly that and I will support him all the way.

    It doesn’t make it any less Kabuki theater.

    Pelayo:

    Your claim would make Israeli Prime Minister Netanyahu an outrageous liar

    I have no problem with that.

    If you’ll re-read what I wrote, I made no claims as to Iran’s intent or capabilities.

    My comment was that the intent of this deal is to get…better monitoring and inspection so we can have a better picture of their intent and capabilities.

    Which is why need to get better access and monitoring. Not warmongering.

    Autistic License:AIG, Tommy:sorry, no. This wasn’t Jimmy Carter or Nancy Pelosi attempting to privately undermine a sitting President. This is 47 legislators quoting the Constitution, which has not yet been denied to public access. The letter doesn’t attempt to cut any side deals. If Obama doesn’t feel the love, he could try meeting with some of the 47 and pitching his plan.

    If we come out appearing divided, I don’t think we’ve given away any secrets. Any deals with Iran must eventuate in a treaty, and a treaty needs a congressional vote. And the process of moving toward a treaty has not been followed. The President must do the homework here before going out to play.

    Obviously, the intent of the letter wasn’t to just “quote the Constitution”

    The intent of the letter was to make it clear that GOP legislators are hell-bend on starting a war, no matter what, no matter why, no matter who, no matter where.

    Warmongering was the intent of the letter. That much ought to be clear.

    History also shows that naive pacifism can result in more deaths than “warmongering.”

    • #78
  19. user_348483 Coolidge
    user_348483
    @EHerring

    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.

    How did that inspector thing work out for you in Iraq?

    • #79
  20. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    The “fainting couch” routine over this really tame “open letter” doesn’t just border on ridiculous, it crosses over and plants a flag.

    • #80
  21. Asquared Inactive
    Asquared
    @ASquared

    Here is a question for the Cotton attackers.  Does anyone believe that this multinational agreement is simply an executive agreement that is not required to be submitted to the Senate for ratification?
    Richard Epstein made the point on his Libertarian podcast that this agreement is, in fact, a treaty and should be presented to the Senate.  John Yoo made the same point on the flagship podcast, saying that Bush presented the arms reduction treaty based on Bolton’s and Yoo’s advice.  Obama has no intention of submitting this to the Senate, at least his administration has publicly said as much.

    If the agreement truly does what Obama is arguing it does, prevent Iran from developing a nuclear weapon with verifiable inspections, why wouldn’t the Senate approve such a deal.  I suspect the key reason why he won’t submit the agreement to the Senate is that the agreement will, in fact, pave the way for Iran to develop a nuclear weapon after the so-called “pause” (which I take as a decade long period of perfecting the enrichment of uranium so they can reduce the so-called “breakout window” to as short as possible).

    • #81
  22. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    We’ll probably end up with one of those weird mishmash deals where the UN sends inspectors that the mullahs will continually block from access, and we’ll have to start threatening, and they’ll just brush off the threats while they hide stuff, and then we’ll have to announce that they’ve violated UN agreements, and they’ll give us the finger, and then we’ll have to start dropping bombs.

    It’ll be the 1990s all over again.

    • #82
  23. user_5186 Inactive
    user_5186
    @LarryKoler

    DrewInWisconsin:We’ll probably end up with one of those weird mishmash deals where the UN sends inspectors that the mullahs will continually block from access, and we’ll have to start threatening, and they’ll just brush off the threats while they hide stuff, and then we’ll have to announce that they’ve violated UN agreements, and they’ll give us the finger, and then we’ll have to start dropping bombs.

    It’ll be the 1990s all over again.

    My favorite bumper sticker from the 1990s: “Ignorance is Blix.”

    (Hans Blix for those who don’t know about what Drew is talking about.)

    • #83
  24. Autistic License Coolidge
    Autistic License
    @AutisticLicense

    There’s been a lot of water (and vitriol) under the bridge since this conversation first began, and looking back on it, I realize that I’ve missed the obvious. Please forgive me if this was the first thing you thought of:

    __If the letter by Cotton et al. had not been sent, President Obama’s cozy (secretive, complacent, unassertive) negotiations with the Iranians would have gone almost unremarked: another day, another blow against Western civ. Nothing to see here. (This is the first Admin to use the unique strategy of covering one outrage by introducing another. Though the Clintons did have their 3-ring circus technique.)

    __ if it had gone first to the media, it would likely have been published, once the media had mobilized enough objections, mockery, invective, and reflexive defense of Obama to provide a side by side rebuttal up to the logical standards of most hipsters.

    __ if it had gone directly to Obama, we might not have heard of it even now, except on Cotton’s website.

    So, I’m more convinced than ever that we owe the 47 a vote of thanks.

    • #84
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