ANALYSIS
The Growing Political controversy over the Iranian Nuclear Negotiations
The highly controversial nuclear negotiations with Iran over its nuclear program were politicized a bit more this week as 47 Republican senators wrote a letter to Iran reminding them that any agreement made by Obama, that hadn’t been agreed to by the Senate could very well be revoked by the next president or by Congress.
The letter sparked a political firestorm as White House supporters accused the senators of meddling in the field of foreign policy, which is constitutionally reserved to the president. In testimony by Secretary of State Kerry on Wednesday, he said, “When it says that Congress could actually modify the terms of an agreement at any time is flat wrong. You don’t have the right to modify an agreement reached executive to executive between leaders of a country.” Kerry added that the letter undermined and added uncertainty to the “thousands of agreements” the United States signs with foreign governments across the globe.
The White House slammed the letter as “reckless” and “irresponsible,” warning that it interfered with efforts to negotiate with the Iranians.
So, what is the truth? Can senators communicate with foreign leaders? Does the President have to allow the Senate to review and vote on an international agreement? Who is right?
Legally, both sides are right. The president has immense powers in the field of foreign relations. However, the Senate does have a constitutional role too.
Article II of the US Constitution gives the president the chief responsibility for foreign policy by stating the president “shall receive Ambassadors and other public Ministers.” However, it also includes the Senate in foreign policy by stating that the president “shall have power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.”
The fact is that senators have traditionally made it part of their business to communicate with foreign leaders. Senators John Sparkman (D-AL) and George McGovern (D-SD) visited Cuba and met with government leaders in 1975. Then Senator John Kerry (D-MA) traveled to Nicaragua in 1985 with Senator Tom Harkin (D-IA) to negotiate with the regime. The Christian Science Monitor reported that the two senators “brought back word that Mr. Ortega would be willing to accept a cease-fire if Congress rejected aid to the rebels.”
In 2002, Senator Rockefeller (D-WV) told Fox News’ Chris Wallace, “I took a trip by myself in January of 2002 to Saudi Arabia, Jordan and Syria, and I told each of the heads of state that it was my view that George Bush had already made up his mind to go to war against Iraq, that that was a predetermined set course which had taken shape shortly after 9/11.”But there is a difference between engaging with communications with other governments and interfering with ongoing sensitive negotiation conducted by the executive branch.
Therefore, there is a historical and constitutional precedent for Senate involvement in foreign relations. As Professor Jack Goldsmith of Harvard Law School writes about a nuclear weapons agreement with Iran, “Senators have a good argument that the President lacks the authority under the U.S. Constitution to negotiate a pure Executive agreement in this context. Almost all major arms control agreements have been made as treaties that needed Senate consent, and the one major exception, the Salt I treaty, was a congressional-executive agreement.”
Despite this, there is considerable precedent for an American president acting unilaterally in the field of foreign affairs. In fact, the Monroe Doctrine, a core principle of American foreign policy was established by James Monroe – without congressional approval – in 1823. And, just as telling in this current argument, Kerry told the Organization of American States in November 2013 that the Monroe Doctrine was dead, which proves what the Senators told the Iranians – that a future president can abrogate any agreement that Obama makes.
The Facets of American Foreign Policy
When looking at American foreign policy, especially the negotiations on Iranian nuclear development, there are three facets to consider: the presidential powers, the legislative powers, and political reality.
The Constitution, tradition, and the courts have given a great deal of latitude to the President in terms of dealing with foreign governments. And, executive agreements have become common in the past 80 years as the US has become a world power.
The executive agreement became a legally enforceable instrument of foreign policy under President Franklin D. Roosevelt. In 1933, FDR recognized the USSR in return for certain pledges. When it was challenged in court (United States vs. Belmont), the Supreme Court ruled in favor of FDR’s action by noting, “The President’s act in recognizing the Soviet government, and the accompanying agreements, constituted an international compact which the President, ‘‘as the sole organ’’ of international relations for the United States, was authorized to enter upon without consulting the Senate.”
The power of the president got another boost when President Carter withdrew recognition from the Republic of China (Taiwan), recognized the People’s Republic of China, and unilaterally abrogated the Senate approved defense treaty with the ROC.
In other words, tradition and the courts have made it clear that Obama has the right to negotiate any agreement with Iran.
However, the courts have also ruled that the unilateral power of the president to determine foreign policy ends at the shores of the United States. That is where the US Constitution and US laws take precedence.
This is where the Senate and the Congress come into play. This is the second facet of American foreign policy – legislative.
The courts have ruled that treaties have the same authority as law and are only subject to the US Constitution. Therefore, in order for a treaty to have the force of law inside the US, it must be approved of by the US Senate with a 2/3 vote.
An excellent example of this is the UN Arms Trade Treaty, which was signed by the United States in 2013, but has never been ratified by the US Senate. That means that although the Administration can follow the treaty internationally, it doesn’t have the force of law within the US. In addition, since all treaties must conform to the US Constitution, the limitations on private ownership of firearms in the treaty would not be consistent with the rights recognized in the Constitution’s Second Amendment.
In addition to Senate ratification, there are other legislative aspects of foreign policy. Any money required implementing an agreement – even an executive agreement must be appropriated by the Congress. In addition, any part of the agreement that would have an impact domestically must be passed in the normal legislative manner.
An example of this would be if Obama decides to recognize the Iranian government as part of the deal. Although he has the power to recognize the government, the money necessary to reopen the US embassy in Tehran and man it would have to be debated and approved by the Congress. In addition, the US Senate would have to confirm any Obama appointment of an ambassador to Iran.
There has also been some question about the ability of the Congress or a future president to abrogate the agreement since it will be forwarded to the UN Security Council for approval. However, The United Nations Participation Act of December 20, 1945 included language stating that nothing the Security Council agrees upon will supersede the Constitutional authority of the Congress or the Senate. Once again, the US Constitution supersedes any treaty, even that with the UN.
The final aspect is the politics of the situation. This may not have an immediate impact on the negotiation, but it is critical if the agreement is to remain in force past January 20, 2017 – the day Obama’s administration ends.
A Wall Street Journal/NBC News poll released this week showed that the US public is skeptical about the ability of an agreement to stop Iran’s nuclear weapons development. The poll found that 71% said the negotiations between Tehran and the Obama administration and other world powers will not make a real difference in preventing Iran from producing nuclear weapons; 24% said it will make a difference.
This negative attitude towards the successful conclusion of any deal has given presidential hopefuls the ability to promise that they will change any deal if they are elected. For instance Republican Governor Scott Walker of Wisconsin argued that unless a nuclear weapons deal with Iran gets the approval of Congress, the next president shouldn’t be bound by that deal.
“Republicans need to ensure that any deal President Obama reaches with Iran receives congressional review,” Walker said in the statement. “Unless the White House is prepared to submit the Iran deal it negotiates for congressional approval, the next president should not be bound [by] it. I will continue to express that concern publicly to the President and directly to the American people.”
Walker is currently leading all other Republicans presidential hopefuls in polling amongst Republican voters, which is a strong signal that any Obama deal may not last beyond 2016, especially if there is any indication of Iranian cheating.
Will an Iranian Nuclear Deal Stick?
There has been a lot of heat on both sides of the political spectrum over this issue this week. However, the reality is quite clear.
Obama has the authority to make a deal with the Iranians. And, as long as it doesn’t interfere with US law or the Constitution, it will be totally legal and Congress will be unable to do anything about it.
Conversely, the senators have the Constitutional and traditional role in commenting on foreign policy and even communicating with foreign leaders – especially if it refers to informing those leaders of the Senate’s Constitutional prerogatives.
However, despite Obama’s powers to decide foreign policy, the long term viability of the deal is questionable. Americans are questioning the advisability of the deal, and by not bringing it before the Senate, it remains an executive agreement, without force of law.
The US Constitution recognizes the preeminence of the American president in foreign policy. That means that the next president will have the same constitutional powers. As Obama has the power to ignore the executive agreements of Bush and declare the demise of the Monroe Doctrine, the next president (in principle) has the full authority to ignore any executive agreement made by Obama.
This also means that any relief from economic sanctions granted by Obama can be instantly withdrawn by a future president.
Therefore, the issue isn’t an executive or legislative question, but a political one. If Obama crafts an agreement that is seen as successful in terms of stopping Iranian nuclear weapons development, the chances are that it will continue in force. However, if the Iranians are seen to be violating the agreement, the next president – especially a Republican one – will likely abrogate the deal.
PUBLICATIONS
Time to Reconsider U.S. Support of UNRWA
By Brett D. Schaefer and James Phillips
Heritage Foundation
March 5, 2015
Backgrounder #2997
The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was established more than 60 years ago as a temporary initiative to address the needs of Palestinian refugees and to facilitate their resettlement and/or repatriation. It has become a permanent institution providing services to multiple generations of Palestinians, of whom a large majority live outside refugee camps, enjoy citizenship in other countries, or reside in the Palestinian-governed territories. Despite the presence of and activities funded through UNRWA, the Palestinian refugee problem has only grown larger, in part due to UNRWA’s expanding definition of refugee. The U.S. should encourage reform and replacement of UNRWA to facilitate its original purpose.
The Iran Policy Clownshow
By Justin Logan
The Cato Institute
March 11, 2015
I’ve been talking about U.S.-Iran policy to groups around the United States for about eight years now. Many members of these groups—World Affairs Councils, university groups, local groups interested in Middle East policy—disagree with my general take on Iran and the Middle East, but I’ve always gotten a fair hearing and good questions. Given that, it’s been both amusing and depressing to watch the political spectacle that’s been happening in Washington this week. It all began when Bill Kristol’s favorite senator, Tom Cotton (R-AR), got 46 of the other 53 Republican Senators to join him in signing an “open letter to the leaders of the Islamic Republic of Iran,” trying to scare the clerical leadership away from a diplomatic deal by threatening to scotch it themselves once Barack Obama is out of office. Cotton, a Harvard Law grad, was subsequently chided on his understanding of the U.S. Constitution both by the Iranian foreign minister, Javad Zarif, as well as by Jack Goldsmith, a conservative lawyer who worked on the legal aspects of the war on terror for the George W. Bush administration.
Judging a P5+1 Agreement with Iran: The Key Technical and Strategic Issues
By Anthony H. Cordesman
Center for Strategic and International Studies
March 9, 2015
The last few weeks have seen a polarized debate about a possible nuclear arms agreement with Iran that has sometimes gone from narrow partisanship to strategic infantilism. Both sides of the Iran debate have focused on a few narrow parameters of the overall agreement as distinguished from the real merits and risks of any proposed agreement. The issue should be debated on its merits, and they should be examined in terms of all the key parameters, not simply a focus on Iran’s current and present capacity for enrichment. These merits also need to be judged in terms of what any arms control agreement can credibly be expected to accomplish.
Egypt in the Region, Part of Rocky Harbors: Taking Stock of the Middle East in 2015
By Carolyn Barnett
Center for Strategic and International Studies
March 11, 2015
Since 2011 events have left Egypt’s health and future trajectory uncertain. Yet many have continued to argue that Egypt is a bellwether for the Middle East as a whole. When protests jumped in January 2011 from Tunis to Cairo, the region’s and the world’s attention quickly shifted east as well. Judging from the media coverage, it almost seemed that Zine el-Abidine Ben Ali’s overthrow had been merely the dress rehearsal for the uprising against Egyptian President Hosni Mubarak. Today, rather than Egypt taking a leading role in the region, other powers in the region have been taking a leading role in Egypt. For some, Egypt’s trajectory epitomizes the failure of the “Arab Spring” to translate into sustained, democratic, inclusive political processes and institutions. For others—most importantly Saudi Arabia (a former rival to Egypt) and the United Arab Emirates (UAE)—Egypt has become ground zero in the effort to sideline politically ambitious Islamist groups and a central arena in the struggle against violent jihadi-salafi organizations.
The Great Powers in the New Middle East
By John McLaughlin
Center for Strategic and International Studies
March 6, 2015
Trying to nail down how the world’s major powers—the United States, China, Russia, and Europe—see and set strategy for the Middle East these days has never been more challenging. Power relationships globally are in flux. The Middle East is in turmoil. And the powers themselves are struggling through difficult transitions. The metaphors commonly used to describe today’s international web of crises—three-dimensional chess, Rubik’s cube—fall short of capturing the sheer complexity of it all, especially when it comes to the Middle East. A more apt metaphor might be the sensation of walking into the middle of a barroom brawl: it’s hard to be sure who started it, who is allied with whom, exactly what is at issue, who just changed sides, who is fighting, who is just observing, where your leverage is, and how to break it up.
Tom Cotton’s letter to Iran gets the Constitution right
By John Yoo
American Enterprise Institute
March 11, 2015
Time for a primer on international agreements, thanks to the controversy over Senator Tom Cotton’s letter to Iran. Joined by almost all Republican senators, the 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 was as if he were just informing Iran about the text of the Constitution.
Down to the Wire With Iran
By George Perkovich
Carnegie Endowment
March 4, 2015
The negotiations have been so lengthy and arduous, it’s easy to forget how remarkable they’ve been. The United States and Iran basically had no diplomatic relations from 1979 until two years ago, when the two countries began secret talks in Oman. Now, the U.S. secretary of state and the Iranian foreign minister meet regularly, text back and forth, and talk on the phone. The president has talked with Iran’s president. As these things go, this was a big historic development. Also, the way the talks have been conducted is remarkable—neither side has leaked information or trashed the other and it has been an exceptionally serious, professional undertaking.
Dealing with a Bad Iranian Nuclear Agreement
By James F. Jeffrey
Washington Institute
March 2, 2015
PolicyWatch 2379
The Obama administration and the rest of the P5+1 will likely agree soon on a limited-duration agreement with Iran that aims to provide around one year of warning time before any breakout to nuclear weapons capability — a deal that Israel and many other regional states would view as a victory for the Islamic Republic and an eventual danger to all. In that case, the administration would likely face a multifaceted crisis with Israel and other allies, with Congress, and with an Iran whose intentions remain opaque. Despite the inevitable rhetorical fireworks on all sides, however, the situation is too serious for partisanship — it requires serious thought about what to do and not do. Two components require particular attention: the consequences of a nuclear agreement whose details have been sufficiently leaked to provide considerable clarity, and the consequences of possible White House and Iranian interest in a better bilateral relationship, which the administration may see as a potential stabilizer for the region even if no one else does.
Mounzer A. Sleiman Ph.D.
Center for American and Arab Studies
Think Tanks Monitor
