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Key items in the constitutional debate over Congress, Obama and Iran

March 11, 2015 by NCC Staff


There’s a tug of war happening in Washington between President Obama and some Congress members over nuclear talks with Iran. So what are the key constitutional points in the debate?


Obama_BoehnerWhile the struggle hasn’t descended into a brawl like the popular Netflix series “House of Cards,” there have been enough unconventional moves in recent weeks to raise eyebrows among veteran political watchers and legal scholars.


To recap where we are as of Wednesday, as a big deadline nears in the nuclear talks with Iran, the State Department is negotiating for the U.S. in the multinational discussions. Four other nations – China, France, Germany, Russia and the United Kingdom – are negotiating along with the U.S. for Iran to scale back its nuclear program in exchange for sanctions relief. A preliminary framework for a deal needs to be in place by April.


The State Department has indicated it probably isn’t interested in extending the immediate deadline beyond March, and its policy position is to not discuss the negotiations in public.


However, there is severe opposition to a proposed deal in Congress, with mostly Republicans, and some Democrats, believing Iran will use any deal as a pretext to keep efforts going to build nuclear weapons. There are also some members of Congress upset that they were excluded from the Iran negotiations by the Obama administration.


Any agreement with Iran would likely come in the form of an executive agreement, and not a treaty subject to immediate congressional approval.


Opposition In Congress


House Speaker John Boehner made sure his reservations were known publicly where he invited Israeli prime minister Benjamin Netanyahu to speak to Congress last week. Then, on Monday, 47 Republican Senators sent a letter to Iran, lecturing Iran’s leaders about the U.S. Constitution. It also said that any agreement short of a treaty could be revoked by the next Republican President.


The letter from Senate Republicans drew a sharp rebuke from Iran. The country’s foreign minister, Javad Zarif, said the letter was “mostly a propaganda ploy.”


“It is very interesting that while negotiations are still in progress — and while no agreement has been reached — some political pressure groups are so afraid even of the prospect of an agreement that they resort to unconventional methods, unprecedented in diplomatic history,” Zarif said in a statement.


One major constitutional point, as claimed by the GOP Senators in the letter, is that the Senate ratifies treaties by a two-thirds majority vote. Jack Goldsmith, who runs the popular Lawfare blog and is a former Assistant Attorney General, explained on Monday that the statement wasn’t constitutionally accurate.


“The Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent empowering the president to proceed with ratification,” Goldsmith said, while also noting it was up to the President, after that resolution is approved, to decide if the treaty should be signed.


“This is a technical point that does not detract from the letter’s message that any administration deal with Iran might not last beyond this presidency,” Goldsmith added.  “But in a letter purporting to teach a constitutional lesson, the error is embarrassing.”


Another constitutional discussion triggered by the Senate letter was the applicability of the Logan Act, an obscure law from 1799 that punishes citizens for purporting to represent U.S. foreign policy interests. The last  indictment under the Logan Act was in 1803. But for now, it looks like the ambiguous language used by the Senators doesn’t represent a direct attempt at a negotiation effort with Iran.


The Sole Organ Doctrine


The broader question raised by this ruckus is the constitutional role of the President and Congress in conducting foreign policy and treaty talks.


The precedent for the President acting as the “sole organ” of foreign policy power goes back, quite ironically, to a speech made on the House floor in 1800 by a representative from Virginia. John Marshall served briefly in the House before becoming Secretary of State and Chief Justice of the United States.


“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” Marshall said.


The Supreme Court expanded this precedent in the 1936 Curtiss-Wright decision, where it cited Marshall’s speech to confer an independent, extra-constitutional, and exclusive foreign policy power on the President.


Scholars such as Louis Fisher, a long-time expert who worked at the Congressional Research Service, have argued the Court misunderstood the context of Marshall’s speech in 1800 in Justice George Sutherland’s opinion.


In fact, Fisher says, Marshall never said the President had “exclusive” power to make foreign policy, just the exclusive power to implement foreign policy decisions.


“Did he believe that in the field of foreign affairs the President possessed exclusive, plenary, independent, and inherent power? By understanding Marshall’s purpose in giving his speech, the answer is clearly no,” Fisher argued in a recent Supreme Court brief.


That constitutional topic will most likely come up if or when the Obama administration seeks a sole executive agreement for a deal with Iran, which may not seek direct congressional approval for a deal.


Another debate topic would be the attempt of a future administration or Congress to modify or ignore an executive agreement on Iran issued by President Obama.


“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,” said the GOP Senate letter.


Iran’s foreign minister Zarif warned, in a response, that the United States would be obliged to honor any such agreement under international law.


“The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal laws as justification for a failure to perform their international obligations,” Zarif said.


Goldsmith, on his Lawfare blog, explains in great detail the conflict between this international law question and the ability of Congress and the President to change an executive agreement within the confines of domestic law—another area that could come under constitutional scrutiny in the near future.


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