Thursday, March 12, 2015

There Are Two Major Errors of Fact in Republican Tom Cotton’s Letter to Iran

Senator Sen. Tom Cotton (R-Ark) who authored the letter to Iran offering Iranian leaders instruction on the U.S. Constitution, treaties and executive agreements that 46 other Republicans signed apparently doesn’t know much about the Constitution, treaties or executive agreements.  He got at least two things wrong, really wrong.

Error #1:  The Senate does not “Ratify” treaties

Cotton wrote:

Not true.  The Senate’s own website in a briefing for Senators on Treaties, says this about the role of the Senate in the ratification of treaties:

The Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).
As Jack Goldsmith, the Henry L. Shattuck Professor at Harvard Law School, writes the constitutional role of the Senate in regard to treaties is to advise and consent.
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”

Goldsmith cites a report prepared for the COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE by the Congressional Research Service in 2001:

“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.”

A treaty isn’t “ratified” by the Senate.  It is “ratified” by the President with the advice and consent of the Senate.

Error #2:  Even non-binding executive Agreements can’t really be revoked “with the stroke of a pen” by future presidents nor can Congresses easily “modify the terms of the agreement at any time.” as Cotton suggests.

Cotton wrote:

In Cotton’s world, any “executive agreement” negotiated by Obama would not be worth the paper it was printed on since it could be easily undone by a future president or Congress.  Not true.  While a future President theoretically could unilaterally terminate an executive agreement and Congress could theoretically modify the terms of an executive agreement, the process would not be nearly so easy or free of significant consequences for the country as Cotton implies.  Politifact addresses this in a recent fact check:

First, says Politifact, The possible agreement with Iran is being negotiated between the five permanent United Nations Security Council members plus one: the United States, the United Kingdom, France, Russia and China, plus Germany. So for the agreement to be truly modified, the other signatories would have to sign off.  No future President or Congress can dictate what these other countries might do.  The agreement would remain in force regardless of what a future president or Congress did.

Second, any effort by a future President or Congress to modify or cancel an agreement could result in a violation of international law which treats such agreements as legal commitments between nations that cannot be easily undone.  The U.S. would, in the eyes of many, become a rogue nation, not to be trusted.

Finally, the U.S. depends upon executive agreements in managing its relations with other governments.  Any president who vacated an executive agreement made by a former president would risk creating significant problems in international relations for his own presidency.  Politifact quotes Jeffrey S. Peake, a Clemson University political scientist on this point.

"For the president to vacate an executive agreement would be quite problematic," Peake said. It "would be largely unprecedented and cause the U.S. a great deal of grief in diplomacy, especially since 95 percent of international agreements are done via executive agreement rather than the constitutional treaty process." Indeed, Peake said, "It could call into question America’s commitment to the vast majority of her international agreements."

Bottom Line:  Senator Cotton and the 46 other Republicans need to learn a lot more about the U.S. Constitution, the role of the Senate, and international law before they go about instructing the leaders of other countries about executive agreements, our Constitution, the role of the U.S. Senate, and, I suspect, just about anything else.  If these guys were bulbs on a Chistmas tree, they wouldn’t be very bright.

Read more about executive agreements and treaties at these links:

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