I am scratching my head over the Senate's attempted end run of the President in order to derail whatever negotiations the president is going to make with Iran over its nuclear program. The Senate Republicans--well, 47 Republicans--seem to be motivated not to bring a resurgence in institutional prerogatives, but instead to demonstrate their support for Israel--the Israel that is represented by Benjamin Netanyahu--in the hopes of driving a wedge in the domestic Jewish vote. So in reality 47 Senate Republicans have issued a deeply insulting/condescending letter in the hopes of 1) helping out their nominee in the 2016 presidential election (among the hopefuls are several co-sponsors of this letter) and 2) doing their level best to try and embarrass the president (at least if you are Senator John McCain, that is).
Just a couple of interesting things about the letter: First, the GOP controls the Senate, yet the Senate GOP was unable to get a majority of their members to support it--including losing seven of their own members. Second, the Senate Majority Leader--supposedly the leader of his Party--is not on the first two lines of signatures--his name doesn't appear until third on the list. Third, 95% of the senators have signatures that are illegible. Fearing that his terrible handwriting might cost him some props in the 2016 GOP Primary, Marco Rubio signs his name in a bunch of squiggly lines, but then writes as neatly as possible (FLA) next to his name. Apparently he did not get the memo that Florida dropped the "A" from the initials years ago. Fourth, not on the list of co-sponsors is the Chair of the Senate Foreign Relations Committee. Fifth, the letter goes on and on about how any deal needs the support of Congress, yet missing from the list of sponsors are any Republicans from the House. And finally, following the fifth point, if Congress is asserting its prerogatives--truly asserting prerogatives--then you would hope that they would try and forge a bicameral, bipartisan letter of admonishment. But then again, congressional prerogatives have absolutely nothing to do with the intent of the letter.
Let's take a closer look at the letter to explore just how poorly it is argued as well as to look at how short the Congress and the Press's memory is regarding the action that the administration has undertaken. First, the Constitution provides an "advice and consent" role for the Senate in the treaty making process, but this is not a treaty, and anyway George Washington ended the courtesy of "advice" after the Senate refused to participate in a treaty with Indian Nations in the 18th century. Nonetheless, the GOP argues that in our system, the president "negotiates international agreements" and "Congress plays the significant role of ratifying them." Nothing could be further from the truth. Congress does not play a role in international agreements, and only treaties may be ratified, and then only with 2/3 support of the Senate (which is not for ratification, but, as Jack Goldsmith argues, is for consent to be ratified, which the president could still refuse to do), which the letter does go on to clarify. Next, the letter discusses a "so-called congressional-executive agreement" that "requires a majority vote in both the House and the Senate", which would require 51% of the House and 60% of the Senate (to overcome a filibuster). There is nothing in existence called a "congressional-executive agreement" short of what we call the "lawmaking process," but I do not think this is what the author intended by the curious phrasing used. And to make things even more confusing, the letter also seems to make a qualitative distinction between the "congressional-executive agreement" and the simple "executive agreement". The executive agreement, the letter states, can easily be revoked by the next president "with the stroke of a pen" and "future Congresses could modify the terms of the agreement at any time". Let's put aside the moment the tremendous assumptions built into the statement--assuming the next president is a Republican, and assuming the next president desires to revoke the agreement, and assuming that a future Congress can muster the majorities need to pass legislation overturning the agreement, and assuming once passed, that they can muster the super-majorities necessary to overturn a presidential veto! A lot of assumptions. In fact, something the GOP seems incredibly ignorant of, regardless of Democrat or Republican, there tends to be a great deal of continuing support for the unilateral decisions made by previous administrations, so I am not sure the GOP will get the sort of relief they are hoping for in the event of a Rubio administration. Power has a way of overriding party support.
But let's get back to the point of the executive agreement. It seems that the media, and the Congress, cannot remember back long enough to a day when executive agreements were commonplace, and where complaints about the constitutional abuse of power via acts of unilateralism were all about executive agreements, and not about #executive orders or #signing statements. In fact, the executive agreement became a far more useful device for presidents over the treaty a long time ago. For instance, in 1944, Edwin Borchard titled his Yale Law Review article "Shall the Executive Agreement Replace the Treaty?" (The Yale Law Journal. Vol. 53, No. 4). In fact, the Executive Agreement's constitutionality has the backing of the Supreme Court. In the decision Dames & Moore v Regan (453 US 6544), William Rehnquist upheld an executive agreement Jimmy Carter made with the Iranian Government to end the legal proceedings against the Iranians as a result of the overthrow of the Shah (and an agreement that had the continuing support of the Reagan administration). It is a matter of fact that the executive agreement is the preferred device of presidents of both parties, leaving the treaty a near relic of a long ago time.
Thus the GOP Letter seems to demonstrate that those in need of the basic American civics lesson is not the Iranians, but is instead the Senate Republicans.
For those interested in the executive agreement, I recommend the following:
- This recent Congressional Research Report, technically not available to the public, but through the yeoman work of the Federation of American Scientists, it is!
- Lou Fisher's Constitutional Conflicts between Congress and the President (University of Kansas Press).
- Glen Krutz and Jeff Peake's Treaty Politics and the Rise of Executive Agreements (University of Michigan Press).
- For a different take, check out my friend and colleague Ryan Barilleaux's work on Parallel Unilateral Policy Declaration as a means to avoid the reporting requirements tied to the executive agreement.