National Security & Defense

Tom Cotton’s Letter Was a Breach of Constitutional Decorum

Tom Cotton (Justin Sullivan/Getty)
It was completely accurate on the substance and also a breach of decorum.

Forty-seven Republican senators have sent an open letter to Iran explaining the U.S. Constitution’s allocations of power with respect to international agreements. The senators’ letter is on the whole descriptively accurate. It tells the mullahs, our negotiating allies, and the world in general the truth about the American constitutional system: Presidents may make executive agreements with foreign nations that lack the constitutional status of “treaties” as a matter of U.S. domestic law, but such agreements likewise can be rescinded by the president alone, including successors.

And it is of course within the senators’ rights to send such a missive. Senators and representatives may express their views however they like, just as they may invite whomever they wish, including foreign heads of state, to address Congress as a body.

Still, there is something eyebrow-raising about a group of senators announcing, in the middle of a foreign negotiation with an adversary, that the contemplated agreement will have little force as a matter of American law. President Obama is right to be piqued. Any American president would be. Imagine 47 Democratic senators weighing in on nuclear-weapons negotiations while President Ronald Reagan prepared for the summit with Mikhail Gorbachev in Reykjavik in 1986, telling the Soviet leader what would or would not be acceptable terms to them.

That is not to endorse President Obama’s childish schoolyard taunt that the 47 senators were making “common cause” with hardliner Iranian mullahs. Nothing could be sillier. The Republican senators are concerned, with good reason, that President Obama and Secretary of State Kerry are being taken to the cleaners — that the impending agreement might gravely damage American national-security interests and will probably endanger the safety of allies and friends in the Middle East and Europe. Obama’s seeming appeasement of Iran has provoked an extraordinary response from senators.

Whether justified or not, the senators’ letter remains troubling from the standpoint of constitutional propriety and precedent. It may be within the senators’ rights, but it is nonetheless an interference with the president’s constitutional power to conduct the nation’s foreign affairs.

First, the Constitution’s basics: The president — and not Congress — possesses the general constitutional power over the nation’s foreign affairs. The Constitution vests “the executive Power,” traditionally understood to include the power to conduct a nation’s foreign relations, in the president alone.

There are exceptions and checks: A treaty with a foreign nation must be consented to by a two-thirds vote of the Senate, if it is to become part of “the supreme Law of the Land” under Article VI of the Constitution, binding as a matter of U.S. law. Further, any necessary implementing legislation for an international agreement, including the repeal of any existing law, must be enacted by Congress in the usual fashion: passage by both houses of Congress and signature by the president. The president constitutionally cannot change the content of “domestic” U.S. law on his own.

President Obama has not been particularly good on this score domestically, of course, attempting to make law by unilateral executive orders in the areas of immigration, environmental law, Obamacare, and elsewhere. It’s no surprise, then, that Congress is in no mood to be especially sensitive to traditional executive prerogatives — President Obama shares responsibility for the atmosphere of mutual antagonism.

Additonally, the Framers explicitly vested in Congress — and removed from the president — the traditionally executive power “to declare War.” The president may protect the nation against sudden or imminent attacks, but he has no constitutional authority to initiate offensive military hostilities on his own.

President Obama has departed from this principle, too, initiating U.S. hostilities in Libya in 2011 without congressional authorization, on the implausible theory that Congress’s exclusive power to authorize war simply does not apply if the president, on his own, considers a military attack on another nation not to be “war.” Obama announced the same theory with respect to threatened military intervention in Syria in the fall of 2013, only to retreat both from the theory and the threat.

But that’s pretty much it. The remainder of the constitutional power over foreign affairs rests with the president. Notably, the power to negotiate with foreign governments — to speak for the United States and to declare the nation’s foreign-policy positions — is an exclusively presidential prerogative. Presidents thus may enter into non-treaty “executive agreements” on their own, as long as such agreements do not change U.S. law. Presidents even have the authority to interpret, suspend, or terminate treaties as long as the exercise of such power does not repeal U.S. domestic law.

This view has been consistently embraced throughout the nation’s history: by Alexander Hamilton in The Federalist; by President George Washington in his famous Neutrality Proclamation, in negotiating the Jay Treaty, and in claiming executive privilege with respect to congressional demands for information on treaty negotiations; by the great Chief Justice John Marshall, while first serving as a congressman; by the U.S. Supreme Court in a long succession of decisions; and by a consistent train of U.S. presidents from Washington to Adams to Jefferson to Madison to Roosevelt to Roosevelt to Truman to Carter to Reagan to Bush to Bush.

That does not mean Congress lacks authority to speak its mind and take action within the sphere of its constitutional powers. Historically, the Senate has rejected major treaty agreements negotiated by presidents, from President Wilson’s ill-fated Treaty of Versailles after World War I to President Carter’s “SALT II” agreement in the late 1970s. But the authority to negotiate such agreements has always been recognized as the president’s alone.

It is important not to overstate any criticism of the 47 senators’ letter — if indeed it is really criticism at all. The letter’s content is an accurate description of U.S. constitutional law. Nothing in the Constitution forbids the Senate or its members from asserting their views. Nothing in the act of publishing the letter is an actual substantive restriction on the president’s negotiating authority. And the letter was prompted by genuine fears for the safety and security of the U.S. and its allies, and concerns that the administration will compromise that security. To label the letter’s signers “traitors” (as one newspaper headline recently did) is a scandalous libel.

But the letter is nonetheless at least a breach of constitutional decorum, even if it is not a violation of the Constitution’s letter. And that is a precedent that could resonate for years to come and hamper the efforts of a future Republican administration — perhaps even one headed by one of the letter’s signatories — to negotiate agreements that positively enhance America’s national security.

— Michael Stokes Paulsen is a law professor at the University of St. Thomas, in Minneapolis. Luke Paulsen is a software engineer in Mountain View, Calif. They are co-authors of The Constitution: An Introduction, forthcoming from Basic Books next month.


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