A Red Letter Day

The Republican senators' letter to Iran is a curious document – not only because of the circumstances involved but because of all the delusional and wishful thinking it contains. If it was supposed to be a civics lesson for the mullahs, it has failed in that mission. Consider, first, the letter as composed:


An Open Letter to the Leaders of the Islamic Republic of Iran:

It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system.  Thus, we are writing to bring to your attention two features of our Constitution — the power to make binding international agreements and the different character of federal offices — which you should seriously consider as negotiations progress.

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them.  In the case of a treaty, the Senate must ratify it by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate).  Anything not approved by Congress is a mere executive agreement.

Second, the offices of our Constitution have different characteristics.

For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms.  As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then — perhaps decades.

What these two constitutional provisions mean is that 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.

We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.

The following version (which I urged the worthy senators to use, but to no avail) would have been more accurate, and more edifying not only to the leaders of Iran but to the American public:

An Open Letter to the Leaders of the Islamic Republic of Iran:

It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our formerly constitutional system.  Thus, we are writing to bring to your attention two features of our Constitution — the power to make binding international agreements and the different character of federal offices — which you might want to consider for your own amusement as negotiations progress.

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. This quaint notion predates the point at which the presidency became, for all intents and purposes, a dictatorship. Not that Congress doesn't still ratify treaties; it's just that it makes no difference what Congress does, since the administration will conduct foreign affairs as it pleases anyway. 
 
In the case of a treaty, the Senate must ratify it by a two-thirds vote. Again, this is strictly a formality designed to provide some semblance of purpose to an otherwise impotent and obsolete body. The president can come to any agreements, both overt and covert, with any government at any time, and the same applies to breaking agreements. The Senate's role varies along a continuum from mute passivity to helpless rage. 
 
A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate).  Anything not approved by Congress is a mere executive agreement – which, under our current system, has exactly the same weight as anything approved by Congress, especially since it can be backed up by the military, which is under the sole command of the president.

Second, the offices of our Constitution have different characteristics.

For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms, and in fact many of them have what amounts to a lifetime appointment, not to be terminated for any cause, including senility and insanity. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then — perhaps decades. There is no way to get rid of us, since all election laws overwhelmingly favor incumbents, which is not surprising since it was incumbents who wrote and passed those laws. 
 
What these two constitutional provisions mean is that 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. This will, of course, have no bearing on how the president sees any such agreement, nor on how it is interpreted or enforced.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could attempt to modify the terms of the agreement at any time. The success of any such attempt will, of course, be entirely contingent on the whims of whoever is president.

We hope this letter enriches your knowledge of our formerly constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.

For further reading, please refer to the extensive writings of President Obama, formerly a professor of Constitutional law at the University of Chicago Law School.