Forty-seven Republican U.S. senators, organized by Arkansas freshman Tom Cotton, published an open letter to the Iranian government this week explaining how the U.S. Constitution works.
Referring to President Obama’s ongoing negotiations over Iran’s nuclear program, the senators wrote: “Anything not approved by Congress is a mere executive agreement … 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.”
The president denounced the letter, saying the senators appeared to be making “common cause with the hard-liners in Iran.” Some liberal commentators went further, branding the 47 Republicans “traitors.”
Are Republicans giving “aid and comfort” to Iran with their open letter? Or are the Republican Senators signaling their displeasure with a bad deal they'll be asked to ratify? Ben Boychuk and Joel Mathis, the RedBlueAmerica columnists, weigh in.
An open letter constitutes treason now? That seems a bit extreme. Or perhaps it’s indicative of a certain strain of thinking on the liberal-left end of the political spectrum, where dissent was the “highest form of patriotism” until Jan. 20, 2009.
Treason nowadays seems to depend on who is the ox and who does the goring.
Was it wise of those 46 senators to sign on to Sen. Cotton’s letter? Probably not. But that’s a much different question concerning politics, not legality.
It isn’t the least bit plausible to argue these senators committed treason or violated the Logan Act of 1799, which forbids U.S. citizens from engaging in “any correspondence or intercourse with any foreign government … with intent to influence the measures or conduct of any foreign government … in relation to any disputes or controversies with the United States.”
The law — which has never been successfully used — includes a critical caveat: “without authority of the United States.”
Perhaps that’s why then-House Speaker Nancy Pelosi, D-Calif., faced no legal sanction when she visited Syrian President Bashar al-Assad in 2007 over the objections of President Bush. Or why certain Democratic senators, including current Secretary of State John Kerry, didn’t face prosecution for visiting Nicaraguan president Daniel Ortega in 1985 as Ronald Reagan’s administration backed rebels fighting that Marxist regime.
Once again, this is about the separation of powers and the constitutional prerogatives of the president and Congress. The president gets to conduct foreign policy and negotiate treaties. But Congress must ratify those agreements for them to carry legal force.
President Obama said last fall that he would bypass Congress if he needed to in order to reach a nuclear agreement with Iran. He’s free to do so — as long as the agreement is nonbinding.
So the senators’ open letter is as much of a reminder to the president and his liberal supporters as it is to the Iranian government: do not ignore the U.S. Constitution when negotiating terms of this deal. Congress has a say, too.
Otherwise, Obama’s executive agreement will likely have an expiration date of Jan. 20, 2017, assuming a Republican president takes the oath of office. That will be the same day dissent becomes patriotic again.
Treason? Nah. Wise? Not that either. Congressional Republicans are free to make the mistakes of their choosing — just so long as they realize they can’t put the genie back in the bottle.
You see, I’m old enough to remember when Republicans thought that conducting foreign policy was pretty much the president’s job.
Remember this quote?
“History speaks volumes about the Constitution’s allocation of powers between the branches. It leaves little, if any, doubt that the president was expected to have the primary role of conducting the foreign policy of the United States. Congressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with core presidential foreign policy functions, they should be struck down.”
That was Dick Cheney, speaking in 1987. The idea he articulated then — known as the unitary executive — was the active governing principle of the Bush Administration when he was vice president, used to cast Congress aside on important issues like torture, warrantless wiretapping and due process for accused terrorists.
If Democrats forgot about the principles of dissent in 2009, as Ben suggests, it seems also to be the case that Republicans forgot their own core ideas about constitutional governance at the same time. There’s plenty of hypocrisy to go around.
But if the expected norm was that presidents negotiate treaties and the Senate approves or rejects the treaties after that, well, those days are now officially over. If the norm was that “politics stops at the water’s edge,” well, forget about that, too. There’s a pretty good chance the next president will be Republican — and he now has no grounds to complain if Congress does an end-run in foreign affairs. That’s the new norm, solidified by the actions of the GOP; if no deference is given, none can be expected.
Our leaders aren’t that smart. They forget that the precedent they set today will be used against them tomorrow. That’s not treason, but it is tremendously short-sighted.
Mr. Boychuk is associate editor of the Manhattan Institute’s City Journal. Mr. Mathis is a contributing editor to Philadelphia Magazine. Reach them at firstname.lastname@example.org, email@example.com or www.facebook.com/benandjoel.