Treaties, Executive Agreements, and the Constitution: The ‘Gang of Forty-Seven’ Sends a Letter

Posted yesterday on NR’s main page is a short piece I co-wrote with Luke Paulsen (my son, and also my co-author on a forthcoming book entitled The Constitution: An Introduction, due out from Basic Books on May 5).

Our article, which the editors gave the provocative title “Tom Cotton’s Letter Was a Breach of Constitutional Decorum,” is, in the main, gentle in its criticism of the letter from the forty-seven senators. What the senators said was substantively correct in all respects. (The main point of the column was to set forth the Constitution’s allocation of foreign affairs powers; Cotton’s letter stated matters correctly in this regard.) Moreover, we argue, the senators were within their rights to say what they said. On top of that, it is hard fairly to question their motives: they were doubtless moved by great concern that President Obama is about to commit the nation, and the world, to a bad agreement leading to a nuclear-armed Iran. Cotton, and his fellow signatories, are patriots, not “traitors” (as one newspaper headline so dreadfully put it).

But all that said, the Constitution gives the President, as an aspect of “the executive Power,” the power to direct and conduct the nation’s foreign relations, and to negotiate with friends and enemies. The senators’ letter is at least (and perhaps also at most) an eyebrow-raising breach of constitutional protocol in that regard. To be sure, the principle of presidential primacy – and senatorial non-interference – in foreign relations and negotiations has been honored in the breach many times in our nation’s history, and especially in recent history. We argue, however, that it is a principle worth preserving, for the sake of a future president who might make far better use of the constitutional power over foreign affairs.

Here’s an excerpt from the last few paragraphs:

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.