Updated | In a March 9 letter addressed to the leaders of the Islamic Republic of Iran, 47 Republican senators attempted to undermine a proposed nuclear nonproliferation deal between President Barack Obama and representatives of five other major powers and the Iranian government.
"It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system," wrote Senator Tom Cotton of Arkansas. "[U]nder our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. Anything not approved by Congress is a mere executive agreement."
"[W]e will consider any agreement regarding your nuclear-weapon program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei," the Iranian leader, Cotton wrote. "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 letter came days after Israeli prime minister Benjamin Netanyahu delivered a contentious speech before members of both houses of Congress in which he urged U.S. lawmakers to reject Obama's Iran deal.
Some—including American-educated Iranian foreign minister Javad Zarif—called it an "unprecedented" attempt to sabotage diplomacy. Vice President Joe Biden sided with Obama on this narrow question and accused Republicans of attempting to "undercut our President and circumvent our constitutional system." Others went further still, wondering if the senators had committed treason. And some wondered if Republicans in the Senate misunderstood the powers granted them in the Constitution.
But many experts say Zarif, Biden and Clinton (not to mention an embarrassing number of pundits) were wrong. Such a display, while certainly an ostentatious act of political theater, is not unprecedented.
For one, there is a well-established precedent for Congress butting in on foreign policy talks, as Michael Crowley of Politico points out:
Recall the bilious battles over the Iraq War, particularly after Democrats captured Congress in 2006 with promises to force Bush to withdraw troops from Iraq. As Democrats sought to force withdrawal timelines on the White House, some conservatives sarcastically referred to then-House Speaker Nancy Pelosi as "General Pelosi."
James Lindsay cites further examples in World Politics Review. Take for instance Senator Henry Cabot Lodge, who in 1919, after World War I, during the crafting of the Treaty of Versailles, issued a letter signed by 37 senators opposing the creation of the League of Nations. As a result of Lodge's dogged opposition, the U.S. never joined the League of Nations, much to the chagrin of President Woodrow Wilson. And, in 1927, Senator William Borah, Lodge's successor as chairman of the Senate Foreign Relations Committee, defied President Calvin Coolidge when he wrote directly to the president of Mexico in an attempt to renegotiate oil leases for American companies operating in Mexico under an agreement worked out by Coolidge.
And, as Terry Moran writes for ABC News, in 1975 two Democratic senators, John Sparkman of Alabama and George McGovern of South Dakota, traveled to Cuba to negotiate with Fidel Castro.
Yet a petition on the White House website calling for the 47 senators to be prosecuted under the Logan Act, which forbids non-designated representatives from negotiating with foreign powers on behalf of the United States, has garnered nearly 300,000 signatures. But, as Steve Vladeck, a professor of law American University, points out in Lawfare, it's highly unlikely a court would find the senators to have violated the Logan Act. "The text of the Logan Act makes it a crime for citizens to engage 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,' Vladeck explains. "Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means," he continues, "and the State Department told Congress in 1975 that 'Nothing in section 953…would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.'"
The final question, then, is this: Did the senators exceed the powers granted them by the Constitution? No, writes Louis Jacobson for Politifact:
The letter written by Cotton said that if Obama strikes a nuclear deal with Iran, "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 found broad agreement among experts that a future president or a future Congress could indeed undo or modify the kind of agreement that's currently being negotiated with Iran, but the senators' letter makes the process sound more clear cut and easier than it actually is.
The entire controversy is classic Washington. One party makes a political move that is boneheaded but hardly illegal. The other party goes bonkers intimating that a crime has been committed. In the end, it's all pretty quickly forgotten overtaken by the next bit of theatre.
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Taylor is a general assignment reporter for Newsweek where he writes about U.S. politics, crime and courts, religion, marijuana law, ... Read more
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