One of the most controversial recent presidential actions is the Obama administration’s desire to enter a “nuclear deal” with Iran. To prod Iran into an agreement that he appears desperately to want, President Obama intends to waive sanctions imposed under earlier legislation and executive action. As shown by an open letter to the Iranian government authored by Senator Tom Cotton and signed by 47 Republican senators, a hotly-debated aspect of the deal is which role, if any, Congress would play in this spectacle.
The Constitution says relatively little about the mechanics of foreign relations. The President has the power to make treaties, which are to be approved by a 2/3 vote of the Senate. Beyond that clear delineation of constitutional authority, the President has various ill-defined powers, principally the “executive power” and the “commander-in-chief” power that allow him to conduct foreign relations. For example, those powers have provided one basis for Presidents to enter into “executive agreements” with other countries’ leaders. In addition, a tremendous source of presidential power to enter into executive agreements or to make executive orders comes from broad delegations of power given to them through congressional authorization. After all, the issue of removing sanctions as part of a nuclear deal is directly traceable to legislation that Congress passed that authorized the President to waive those sanctions.
Congress as a whole, in turn, may have some influence over foreign affairs if a treaty requires further legislation for implementation, or by passing statutes that affect the rights of Americans in their dealings with foreign entities. Travel and trade restrictions with Cuba are an example of the latter.
This interplay of legislative and executive powers distinguishes the Constitution from its English antecedents. Under English practice at the time of the early American republic, the king had formal control over foreign affairs, though Parliament had substantial influence through its powers over taxation and spending. The king’s power over foreign relations traditionally was seen as distinct from his powers over domestic affairs. John Locke, the “philosopher of the Glorious Revolution,” in describing his view of divided power in the English constitution, referred to that royal prerogative as the “federative” power. It stood apart from the powers over domestic policy that were apportioned between the king and Parliament and included the king’s executive powers, such as, to appoint officers. Alexander Hamilton, in number 69 of The Federalist, used Blackstone’s similar description of the English system to differentiate it from the Constitution’s formal treaty process.
However, formal treaties are, as noted, only one component of foreign relations. The Supreme Court has added its own interpretations of the murky and relatively fluid constitutional settlement regarding foreign relations. For example, in the 1936 case U.S. v. Curtiss-Wright Export Corp., Justice George Sutherland undertook a staunch defense of federal power, in general, and executive power, in particular, over foreign affairs. Sutherland pointed out that the “powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.” An additional such power, Sutherland wrote, was the “power to make such international agreements as do not constitute treaties in the constitutional sense.”
More significant, Sutherland squarely placed the main authority for foreign relations with the President. He bluntly rejected any role for the Senate or the Congress as a whole in the negotiation of treaties. He quoted approvingly from a speech John Marshall made as President Adams’s Secretary of State, that the President is “the sole organ of the nation in its external relations ….” In addition, he referred to an early Senate Foreign Relations Committee report from 1816 that declared, “[The President] manages our concerns with foreign nations and must necessarily be most competent to determine when, how and upon what subjects negotiation may be urged with the greatest prospect of success….[The committee] think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.”
In similar vein, Sutherland invoked President Washington’s refusal, on executive privilege grounds, to deliver to the House of Representatives instructions and correspondence relating to the negotiation of the Jay Treaty of 1794. Washington cited the need for confidentiality and the delicacy of foreign relations: “The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.”
While Justice Sutherland’s disquisition on the nature of sovereignty, its constitutional anchorage, and its historical evolution have triggered much criticism, his discussion of the preeminence of the President in foreign relations is constitutionally unremarkable. But it is hardly the case that the President is an entirely free actor in foreign affairs. As the Senate Report cited by Justice Sutherland in Curtiss-Wright also emphasized, the President is still responsible to the Constitution. It remains to be seen whether or not that continues to be “the surest pledge for the faithful discharge of his duties” in today’s personal-legacy-driven view of the presidency, where getting suitable materials for display in the secular cathedrals known as presidential libraries takes on ever-greater urgency.
Nor is it the case that the Cotton letter was unprecedented. To take just one of many instances where Congress much more directly inserted itself into executive conduct of foreign relations, during the Reagan administration, Congress passed a series of laws known as the “Boland Amendments.” While they prohibited the intelligence agencies from using funds to assist, even indirectly, the Nicaraguan “Contras” fighting the communist Sandinistas, Democrats read the prohibition much more broadly, as applying to the President because of his connection to U.S. intelligence agencies. Indeed, it was said to apply even if the President merely urged private support of the Contras or talked to a foreign leader to help them. Democratic Representative Dante Fascell, the House Foreign Relations chairman boasted that these amendments “can stop him from doing almost anything” regarding the Contras. In an ironic, yet entirely predictable twist, the same factions that supported muzzling the President then, today demand that the Senators be muzzled. Indeed, a number of their acolytes in the press and among the “intelligentsia” have gone so far (and shown their ignorance of the Constitution in doing so) as to accuse Senator Cotton and the other signatories of the letter of having committed treason—for publishing this open letter on his own website.
By well-established constitutional custom rooted in practicality, then, the President has much more discretion to conduct foreign relations than domestic affairs. Dissatisfaction with the particulars of the current administration’s handling of the Iran nuclear negotiations must not undermine that constitutional reality. Rather sooner than later, one hopes, a less naïve and personality-driven administration will be elected, and that same flexibility and discretion will yield less disastrous results. In the meantime, a deal with Iran, if one is concluded, is better challenged on its policy failures.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
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