Forty-seven Republican Senators sent an open letter to the Supreme Leader of Iran warning him that a nuclear deal with President Obama will not survive his term in office. The letter is likely to set off a fight between the branches over the most contentious foreign policy debate of the day. Writing in Bloomberg View, Josh Rogin reports:
Organized by freshman Senator Tom Cotton and signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul, the letter is meant not just to discourage the Iranian regime from signing a deal but also to pressure the White House into giving Congress some authority over the process.“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement,” the senators wrote. “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.”
The Senators have been taking a lot of heat for this, and it is certainly a strong step. For fans of President Obama and/or his approach to Iran, the letter seems to be a gratuitous piece of mischief. One can certainly question the timing of the letter, and it probably ought to have been addressed to President Obama rather than to the Supreme Leader of Iran as a matter of form, but what the Senators say in the letter is, as a matter of both politics and law, correct. Unless President Obama takes a treaty to the Senate and gets it ratified, he has no power to bind Congress or future Presidents to an agreement with Iran.(Incidentally, the Senators are probably also correct in assuming the Iranians don’t fully grasp America’s separation of powers. Peter Baker of the New York Times reports that Iran’s Foreign Minister, Javid Zarif, released a statement arguing the agreement would be binding no matter what: “Mr. Zarif added that a change in administration would not relieve the United States of its obligations under any agreement. “I wish to enlighten the authors that if the next administration revokes any agreement with ‘the stroke of a pen,’ as they boast, it will have simply committed a blatant violation of international law,” he said.” Mr. Zarif doesn’t know very much about how the American system works, it would appear, and the Senate will not appreciate his lecture.)The classic case of a Congress voting to override a presidential assurance to a foreign leader came in 1975. When President Nixon signed the Paris Peace Accords with North Vietnam in 1972, the spirit and letter of the agreement guaranteed South Vietnam’s independence; what’s more, President Nixon promised Nguyen Van Thieu, President of South Vietnam at the time, that the United States would come to the South’s rescue if the North broke the agreement and attacked. But the PPA was not a treaty, and the Senate did not ratify it. Nixon was later forced to resign because of his role in the Watergate scandal, and in early 1975 North Vietnam attacked the South. President Ford, seeking to honor both the spirit of President Nixon’s signature to the Paris Peace Accords and his promise to Thieu, asked Congress for money for military aid for South Vietnam.With overwhelming Democratic support, Congress refused to provide aid and South Vietnam went down the tubes. As the embittered Thieu said in a final address as his country collapsed, “At the time of the peace agreement the United States agreed to replace equipment on a one-by-one basis. But the United States did not keep its word. Is an American’s word reliable these days? The United States did not keep its promise to help us fight for freedom and it was in the same fight that the United States lost 50,000 of its young men.”One can agree or disagree with Congress’ decision in that case, but there is no doubt that Congress had every right and even a duty to consider the matter of aid to South Vietnam for itself. Just because Nixon wrote Thieu that, as quoted by Richard Holbrooke in The New Republic, “You have my absolute assurance that if Hanoi fails to abide by the terms of this agreement it is my intention to take swift and severe retaliatory action,” did not mean that Congress was bound by these empty words. Nor did the promise of independence in the PPA create a US treaty obligation.In 1975, South Vietnam was going down in flames and the Ford Administration was fighting to get aid from Congress. In the process, it suggested strongly that Congress was bound to honor what were essentially a series of formal and informal executive undertakings in foreign policy. Senator Jackson took on the Administration’s claims that the United States was bound by Nixon’s promise to support South Vietnam:
Jackson said the Ford administration had intimated that Congress had reneged on “commitments” and “obligations” to the Saigon government. “The fact is,” he continued, “that Congress is being accused of violating commitments and obligations it never heard of…. I call upon the President now to make public and to provide to Congress all documents embodying or reflecting these secret agreements…. We in the Congress cannot play our constitutional role in constructing a coherent foreign policy so long as information to which we are entitled is kept from us.”The White House responded in a statement issued April 9 that former President Nixon had assured South Vietnamese President Thieu in private correspondence that the United States would “react vigorously to major violations” of the Paris peace accords. The “confidential exchanges” between Thieu and Nixon did not differ in substance from what was stated publicly when the accords were signed in January 1973, the statement said, when the U.S. intentions to provide adequate economic and military assistance and to enforce the Paris agreements “were stated clearly and publicly by President Nixon.”
In the final House vote on military aid, 90 Republicans and 46 Democrats voted to uphold Nixon’s agreements with Thieu; 46 Republicans and 200 Democrats voted to repudiate them.Here at TAI, we still don’t know whether we will support any agreement that the President may reach with Iran. As we’ve said many times, we think a strong nuclear agreement with Iran is preferable to the alternative courses; the choice between military action against Iran or accepting an Iranian bomb does not fill us with joy. On the other hand, we agree with those who think there are some solid questions that need clear answers before a deal can be endorsed. But whether we agree or disagree with what the President ultimately does here is not as important as the reality that President Obama is no more able than President Nixon was to bind his successors, or Congress, on a matter of this importance.Suppose back in 2008 President George W. Bush had wanted to tie Barack Obama’s hands in Iraq. Did President Bush have the legal authority to sign an agreement with the Prime Minister of Iraq promising that the United States would keep 100,000 troops in his country for twenty years no matter what his successors or future Congresses might think? He clearly did not, and Congress would have rightly considered such an agreement an abuse of Presidential authority and have treated it as non-binding.The Constitutional problem therefore isn’t that Congress is trying to micromanage the President; the problem is that the President is trying an end run around Congress on a matter of the greatest importance. President Obama has the right to conduct whatever policy he wishes towards Iran as long as he stays within the bounds of American law; he cannot, however, bind future Presidents and Congresses unless the legislative branch weighs in. Writing a letter to the Supreme Leader of Iran might not have been the best or the most tactful way to make the point, but Senators have an obligation to their institution and to the Constitution to uphold their right to review long term international commitments made in America’s name.The best way out of the potential deadlock would be for the President and the Secretary of State to work directly with key Senators who can command the support of the GOP caucus and work to meet their objections. Historians fault President Wilson for failing to bring Republican Senators with him to the negotiating sessions in Versailles and working with people like Lodge (who was anything but isolationist) to find an approach to the Treaty that they could support. People praise Truman for reaching out and working with key Republicans to get their support for the Marshall Plan.We note that Senator Corker, the chairman of the Senate Foreign Relations Committee, and no stranger to criticisms of the administration’s Iran policy, has not signed Senator Cotton’s letter. If the White House is smart, it will take the opportunity to work with Corker and other important Republicans to reach some kind of bipartisan agreement on Iran policy. President Obama may complain that this means that he can’t get the Iran policy he wants; that may be true, and it may be as bad a thing as the President fears, but that isn’t the point. American presidential powers have their limits, and President Obama can’t bind the future without congressional buy-in.Republicans like Senator Corker and Senator Cotton are neither stupid nor malicious. Both men are serious figures who take their responsibilities seriously. We don’t need a Congress that is continually gumming up the foreign policy works by intervening on every little negotiation, but a prospective nuclear deal with Iran is one of the most important questions that the nation faces. Nothing about our Constitutional system says that the executive should have a free hand to reach an agreement that binds the whole country on a matter like this without congressional concurrence. To blame the Senate for the possibility of a constitutional train wreck is to blame the victim; it is the responsibility of the President to go to Congress on a matter of this kind.