Finally Breaking the Rules

Everyone will now remember the day the real leader of the free world came to the United States to address a Joint Session of Congress, to upbraid and shame the young and hopelessly naïve president of that now equally hopeless country – invited to do so by the few remaining Real Americans – those who prefer war to diplomacy, and don’t like gays, and who prefer minorities stay in the background, quietly, and like their women modest and generally silent. That would be the Republicans of course. Benjamin Netanyahu finally gave that speech, urging Congress to do whatever they could to stop our current negotiations with Iran to get them to stop trying to develop nuclear weapons. Obama must be stopped – but the Netanyahu speech actually contained nothing new. Netanyahu offered no alternative, other than forcing the Iranians to change everything about what they believe, or else. The “or else” seemed to be war, although Netanyahu said that wouldn’t be necessary if the Iranians agreed to become a different sort of people.

Netanyahu can say what he likes – he seems to loathe Obama – but there was something odd about this invitation to say what he likes about Obama to our Congress, because John Boehner invited him and Netanyahu accepted and neither side informed the the White House or the Department of State, as if they really didn’t matter. But that was the idea. A National Review columnist wrote that “Netanyahu, not Obama, speaks for us” – and called him “the leader of the free world” – so the Israelis will have to realize who’s on top here. It isn’t Obama. Obama doesn’t run things, and of course Israelis should be proud that Netanyahu put America in its place – if only it were that simple.

Chris Matthews saw it a different way. This man from a foreign government walked into the United States legislative chamber and tried to take over its foreign policy. He said, “You should trust me, not your president on this. I am the man you should trust. I am your true leader on this question of geopolitics. To protect yourself, you must listen to me and not this president.”

This was a good thing? Who runs our foreign policy? That’s never been in dispute before. Nixon “opened China” – a complete surprise that no one in Congress saw coming. Obama is trying to do the same thing with Cuba – and as much as Congress fumes, or a few in Congress fume, there’s not a damned thing that they can do about it. That’s not how things work.

There are rules about these things. There’s the Treaty Clause and the War Powers Clause and the Appointments Clause and the Foreign Commerce Clause – right there in the Constitution. Subject to the advice and consent role of the Senate, the President of the United States negotiates treaties with foreign nations. They don’t. Treaties enter into force if ratified by two-thirds of the Senate, but the Senate doesn’t negotiate them. The President is also Commander in Chief of the United States Armed Forces, and thus has broad authority over the armed forces. Sure, only Congress has authority to declare war, and the civilian and military budget is written by the Congress, but they can’t agree on anything and have let presidents do what presidents want to do. They gripe about this or that war later, after the fact, which is political gold, at no cost to them. The United States Secretary of State is also the foreign minister of the United States and conducts our state-to-state diplomacy – and both the Secretary of State and ambassadors are appointed by the President, with only the advice and consent of the Senate. Once those folks are confirmed, the Senate has no further say – and Congress also has the power to regulate commerce with foreign nations, but that too is after the fact, once trade agreements are in place, which they didn’t negotiate.

Perhaps all of that is tedious – most rules are (see cricket for example) – but we have a rule book, the Constitution, and early on, Congress added a penalty for breaking the rules:

The Logan Act (1 Stat. 613, 30 January 1799, currently codified at 18 U.S.C. § 953) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments. It was passed in 1799 and last amended in 1994. Violation of the Logan Act is a felony, punishable under federal law with imprisonment of up to three years.

The Act was intended to prohibit United States citizens without authority from interfering in relations between the United States and foreign governments.

The “authority” they were talking about is the president, not Congress, as this was confirmed by Supreme Court Associate Justice George Sutherland in a 1936 majority opinion: “The President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”

That’s the law, statute and precedent, and few have ever really been charged with violating the Logan Act. Everyone knows better. Everyone knows the rules, but John Boehner and the Republicans invited Benjamin Netanyahu to come on over and say, given this Obama fellow, that it was time to break the rules. If you love Israel, break your American rules, now. If you love Iran and terrorism and think there are a few good Muslims out there, don’t break your rules – but you’ll be sorry. Everyone will be sorry.

The calculation seemed to be that if Americans had to choose between what Obama says, and what Benjamin Netanyahu says, Americans will choose Benjamin Netanyahu. We’re talking Israel here, folks – Jesus Land. Netanyahu says break the rules. That’s permission, so the Republicans finally broke the rules:

The fractious debate over a possible nuclear deal with Iran escalated on Monday as 47 Republican senators warned Iran about making an agreement with President Obama and the White House accused them of undercutting foreign policy.

In a rare direct congressional intervention into diplomatic negotiations, the Republicans signed an open letter addressed to “leaders of the Islamic Republic of Iran” declaring that any agreement without legislative approval could be reversed by the next president “with the stroke of a pen.”

The letter appeared aimed at unraveling a framework agreement even as negotiators grew close to reaching it.

The letter was signed only by Republicans. They were telling the hardliners in Iran that they control foreign policy. In our system, presidents come and go. Forget Obama.

Constitutional law experts might disagree with that. Jack Goldsmith disagrees with that:

Here is the letter. Its premise is that Iran’s leaders “may not fully understand our constitutional system,” and in particular may not understand the nature of the “power to make binding international agreements.” It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.

The letter states that “the Senate must ratify [a treaty] by a two-thirds vote.” But as the Senate’s own web page makes clear: “The Senate does not ratify treaties. Instead, 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”. Or, as this outstanding 2001 CRS Report on the Senate’s role in treaty-making states (at 117): “It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.” Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane. Senate consent is a necessary but not sufficient condition of treaty ratification for the United States. As the CRS Report notes “when a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

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. But in a letter purporting to teach a constitutional lesson, the error is embarrassing.

That hardly seemed to matter:

Whether the Republican letter might undercut Iran’s willingness to strike a deal was not clear. Iran reacted with scorn. “In our view, this letter has no legal value and is mostly a propaganda ploy,” Javad Zarif, the Iranian foreign minister, said in a statement. “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.”

A senior American official said the letter probably would not stop an agreement from being reached, but could make it harder to blame Iran if the talks fail. “The problem is if there is not an agreement, the perception of who is at fault is critically important to our ability to maintain pressure, and this type of thing would likely be used by the Iranians in that scenario,” said the official, who spoke anonymously to discuss the negotiations.

Americans would have blown up the deal. The Iranians would look reasonable. Oops.

The reaction was swift:

The White House and congressional Democrats expressed outrage over what they called an unprecedented violation of the old tradition of leaving politics at the water’s edge. Republicans said that by styling it as an “open letter,” it was akin to a statement, not an overt intervention in the talks.

“It’s somewhat ironic to see some members of Congress wanting to make common cause with the hard-liners in Iran,” Mr. Obama told reporters. “It’s an unusual coalition.”

Other Democrats were sharper. Josh Earnest, the White House press secretary, called it “just the latest in an ongoing strategy, a partisan strategy, to undermine the president’s ability to conduct foreign policy.” Senator Harry M. Reid of Nevada, the Democratic minority leader, said the “Republicans are undermining our commander in chief while empowering the ayatollahs.”

And there’s this:

An agreement with Iran would not require immediate congressional action because Mr. Obama has the power to lift sanctions that he imposed under his executive authority and to suspend others imposed by Congress. But permanently lifting those imposed by Congress, as Iran has sought, would eventually require a vote.

Rather than wait, Republicans, joined by several Democrats drafted legislation aimed at forcing Mr. Obama to submit the agreement to Congress. But when Senator Mitch McConnell of Kentucky, the Republican majority leader, moved to advance that legislation for a vote, Democrats who support it balked at taking action before the talks with Iran concluded. Mr. McConnell backed off, but the bill may be revived if a deal is reached.

Among the Republicans who declined to sign Mr. Cotton’s letter was Senator Bob Corker of Tennessee, the Foreign Relations Committee chairman who has been working with Democrats on Iran legislation. “We’ve got a bipartisan effort that’s underway that has a chance of being successful, and while I understand all kinds of people want to weigh in,” he said, he concluded that it would not “be helpful in that effort for me to be involved in it.”

And this only helps Obama:

Some Democrats, like Representative Brad Sherman of California, said the letter and other moves risked making it a party-line issue, in which case it would be impossible to muster a two-thirds vote to override a presidential veto. “The number of Democrats not willing to follow the president’s lead is reduced when it becomes a personal or political issue,” Mr. Sherman said.

Jaime Fuller sees things this way:

In case you need the letter translated out of legislatese, here is what the letter basically says.

Dear Iran,
Don’t forget us while you think about that nuclear deal.
We are going to haunt you forever.

P.S. Constitutioned!

Fuller is not impressed, and Daniel Drezner is scornful:

I get what Senate Republicans are trying to do here. They don’t like the contours of the deal that’s being negotiated, and they really don’t like Barack Obama’s enthusiasm for bypassing a truculent Congress via executive actions on Iran. So if the Senate GOP can signal to Iranians that an executive agreement isn’t that much of a credible commitment device, maybe they can scuttle a deal they dislike with the white-hot passion of a thousand suns. …

That said, there are still a few confusing aspects about this. First, there’s the question of the law. I don’t think an open letter from members of the legislative branch quite rises to Logan Act violations, but if there’s ever a trolling amendment to the Logan Act, this would qualify.

That point aside, the Republican senators appear to be slightly off in their pedantic Constitutional lesson. I’ll just note here that if you’re a Republican, you really don’t want someone of Goldsmith’s stature to write, “It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.”

This letter may have been a bad idea:

Essentially, GOP hardliners in the Senate are asking their counterpart hardliners in Tehran to scuttle a deal that neither of them like very much. Which leads one to wonder: how exactly would the GOP caucus in the Senate react if the Iranian supreme leader Ayatollah Ali Khamenei listened to them? “The fact that the Iranian leadership listened to us hardliners proves that they are hardliners too! We can’t negotiate with them!!” …

If you go to the letter itself, the key part is this:

“We will consider any agreement regarding your nuclear-weapons program that is not approved by 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.”

Now that paragraph is accurate. But, how likely would such modifications to the executive agreement be if a Republican won in 2016? Both Jeb Bush and Rick Perry have come out against the agreement. I suspect that Scott Walker will oppose it just as soon as someone tells him about it.

But here’s the thing – path dependence is a powerful force in foreign policy. If – still a big if – Obama successfully negotiates a deal in the spring, then that deal will have until January 2017 to marinate before the next president has the opportunity to scuttle the executive agreement. If Iran acts in a dodgy fashion, that’s one thing. If, however, they honor the terms as well as they’ve honored the interim deal, then the next president will be trying to sabotage an agreement that tamped down a major stressor in the region.

That’s going to be politically difficult. … The thing about most foreign policy decision-making is that a lot of it is irrevocable. In some cases it’s literally impossible: the United States can’t un-invade Iraq, for example. In other cases, the cumulative effect of certain choices renders a particular policy essentially locked in. The United States can’t really renegotiate NAFTA or dramatically curtail its economic opening to China, for example. Instances in which a future president legally reverses course on a prior president’s commitments – like, say, the George W. Bush administration’s reversals on the Kyoto Protocol and the International Criminal Court – inevitably trigger severe diplomatic blowback. …

It’s certainly possible that a GOP president in 2017 could scuttle such a deal – but I’m dubious that it would actually happen. Indeed, if anything, this letter could help bolster the Obama administration’s bargaining position:

Other than that, it was a fine letter, except that Paul Waldman notes this:

The only direct precedent I can think of for this occurred in 1968, when as a presidential candidate Richard Nixon secretly communicated with the government of South Vietnam in an attempt to scuttle peace negotiations the Johnson administration was engaged in. It worked: those negotiations failed, and the war dragged on for another seven years. Many people are convinced that what Nixon did was an act of treason; at the very least it was a clear violation of the Logan Act, which prohibits American citizens from communicating with foreign governments to conduct their own foreign policy.

This move by Republicans is not quite at that level. …. But it makes clear that they believe that when they disagree with an administration policy, they can act as though Barack Obama isn’t even the president of the United States.

And it isn’t just in foreign affairs. In an op-ed last week in the Lexington Herald-Leader, Mitch McConnell urged states to refuse to comply with proposed rules on greenhouse gas emissions from the Environmental Protection Agency. Never mind that agency regulations like these have the force of law, and the Supreme Court has upheld the EPA’s responsibility under the Clean Air Act to regulate carbon emissions – if you don’t like the law, just act as though it doesn’t apply to you. “I can’t recall a majority leader calling on states to disobey the law,” said Barbara Boxer, the ranking Democrat on the Senate Environment and Public Works Committee, “and I’ve been here almost 24 years.”

These folks finally decided it was time to break the rules, but Waldman thinks it’s never that time:

The American political system runs according to a whole series of norms, many of which we don’t notice until they’re violated. For instance, the Speaker of the House can invite a foreign leader to address Congress for the sole purpose of criticizing the administration, and he can even do it without letting the White House know in advance. There’s no law against it. But doing so violates a norm not only of simple respect and courtesy, but one that says that the exercise of foreign policy belongs to the administration. Congress can advise, criticize, and legislate to shape it, but if they simply take it upon themselves to make their own foreign policy, they’ve gone too far.

But as has happened so many times before, Republicans seem to have concluded that there is one set of rules and norms that apply in ordinary times, and an entirely different set that applies when Barack Obama is the president. You no longer need to show the president even a modicum of respect. You can tell states to ignore the law. You can sabotage delicate negotiations with a hostile foreign power by communicating directly with that power.

Nothing good will come of this:

I wonder what they’d say if you asked them whether it would be acceptable for Democrats to treat the next Republican president that way. My guess is that the question wouldn’t even make sense to them. After all, that person would be a Republican. So how could anyone even think of such a thing?

Benjamin Netanyahu would never think such a thing. No one would think such a thing. But some things just aren’t cricket. Our Constitution was ratified on June 21, 1788 – and it has served us well, so far. Benjamin Netanyahu says it’s time we moved on. He has said he speaks for Israel and all Jews, living or dead or yet to be born. He has graciously and heroically granted Americans the right to move on. The Republicans are saying it’s time we moved on. Is it? What happens when there are no rules?

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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