Thursday, March 12, 2015

What the 47 Senators May Have Meant to Tell Iran

by Michael Dorf

The buzz over the last few days over whether the 47 Republican Senators who signed the letter to the leaders of Iran violated the Logan Act led me to recall the similar contretemps in 2007 over whether then-Speaker Nancy Pelosi violated the same law when she visited with Bashar al-Assad in contravention of the Bush Administration efforts to isolate his regime. I originally wrote about the Pelosi issue here. Then I wrote a follow-up about the Logan Act in connection with the Pelosi issue here.  And then I wrote a short follow-up here.

I think my analysis at the time applies equally now: If there was a technical violation of the Logan Act, it's not going to be prosecuted, and the bigger issue is whether, under our constitutional system, it's appropriate for members of Congress to freelance in conducting foreign policy. My view then was, as it is now, that our Constitution and the practices that have grown up around it pretty seriously constrain the role of members of Congress in conducting diplomacy--as opposed to addressing issues of foreign policy, which, pursuant to various powers allocated to Congress via Article I, it can certainly do.

More recent interventions w/r/t the 47 Senators' letter reinforce that set of conclusions as to this more serious instance of Congressional diplomacy freelancing. First, as Steve Vladeck explains, there may not even have been a technical violation of the Logan Act (in 2007 or 2015), and if there was, a prosecution under the Logan Act could be constitutionally problematic. Meanwhile, as Marty Lederman observes, mostly by quoting VP Biden, the recent instance of foreign policy freelancing is highly disturbing on numerous grounds. And that's putting aside criticisms--like those leveled by Jack Goldsmith--that say that the Senators got the law wrong.

First, an aside, and then I'll add a more serious substantive point. The aside is that one of the criticisms made by Goldsmith strikes me as hyper-formalistic. He takes the Senators to task for saying that the Senate ratifies treaties, quoting the Senate's webpage, which states: “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.”

Sure, Goldsmith is technically right but so what? It is extremely common to refer to the Senate's giving of its consent as "ratification." As recently as last Term, Justice Scalia, writing for himself, Justice Thomas, and Justice Alito in a concurrence in Bond v. United States, said: "Upon the President’s agreement and the Senate’s ratification, a treaty . . . has been made" (emphasis added). Likewise, CJ Roberts, writing for the Court in Medellin v. Texas, referred to "the Senate that ratified the U. N. Charter." I found over 200 similar usages in federal appeals court cases, and it is also very common among commentators. There are many legitimate grounds for criticizing the 47 Senators who signed the letter to Iran, but referring to Senate ratification is not one of them.

Now to my substantive point. Iran's foreign minister, Javad Zarif, in his response to the Senators' letter, noted--correctly--that neither the Senate nor a future Administration could undo an agreement that is binding under international law by the "stroke of a pen." The Senators' letter is really quite wrong in asserting that a mere "executive agreement" would not be binding on a future administration as a matter of international law.

But perhaps what the Senators meant to say (or ought to have said given their substantive views) was that even though an executive agreement would be and remain binding as a matter of international law, the executive agreement would not supersede those U.S. sanctions on Iran that are currently imposed by statute and thus, for domestic law purposes, cannot be overridden by a mere executive agreement.

Congress has delegated considerable discretionary authority to the President to impose sanctions but some of the relevant sanctions are mandatory. A treaty, a congressional-executive agreement, or an executive agreement that lifts sanctions would be binding on the U.S. as a matter of international law, but only a later-in-time treaty or statute (including a congressional-executive agreement) would supersede a statute as a matter of U.S. domestic law. Thus, one way to read the Senators' letter--and perhaps even what they meant--is to say that they and a future Republican president stand prepared to breach the international obligations of the U.S. if they are entered into via an executive agreement.

To be clear, that would be a terrible thing to say on policy grounds and on separation-of-powers grounds. But it would not make the simple-minded mistake about the relation between domestic and international law that a more straightforward reading of the letter would suggest.

21 comments:

Joe said...

I also did not find the "ratification" point overly important -- the citation of judicial mention is a good catch but might just show judges too err -- though it is "embarrassing" given the pedantic nature of the letter.

Your overall comments are good as well. I think many get a general sense why the letter was wrong -- Biden's response is good -- but it's helpful to be a bit more nuanced about it.

The Republicans did not commit "treason" (per a popular hashtag), we shouldn't revive the Logan Act & the problem is not that senators said anything that interferes with the "single voice" of the President here.

The discussion also shows that Congress might have a limited role in foreign policy, but it has a role. Given the President does need checks, this asinine letter in the long run only will worsen the situation in that sense.

Shag from Brookline said...

Will "KING COTTON" now rule foreign policy?

egarber said...

As a matter of separation of powers, where is the proper line on "interference"?

In one case, Pelosi (and Republicans) visited Syria on a fact finding mission, while trying to get Syria and Israel to negotiate...

On another occasion, representatives visited Iraq in the middle of the war debate...

Today, the Senate is communicating directly with the party on the other side while the White House negotiates...

I can see that the latest is different as a matter of logic, but is it colored by any kind of doctrine? Meaning, is it legally one thing to occupy the same space in a general sense (visiting a country), but something quite different when the president is carrying out direct diplomacy? Maybe foreign policy isn't "dormant", so it allows Congress more latitude when the president isn't directly engaged?

egarber said...

Or actually, maybe I'm asking about where the authority IS dormant.

Joe said...

Off topic: I notice there are a lot more amicus briefs posted regarding the same sex marriage cases:

http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/

One is co-authored by Prof. Dorf.

Hashim said...

Isn't it a serious separation-of-powers problem if the President can unilaterally enter into a binding agreement that would require breaching a validly enacted domestic law, or require Congress to repeal said law?

Where in the Constitution does the President get the power to put Congress to the choice of repealing a validly enacted domestic law or breaching international law? The President is supposed to be enforcing the law, not undermining it.

Michael C. Dorf said...

Joe is right: Larry Tribe and I filed an amicus brief. It's available at http://goo.gl/DR7r7T
I'll have a blog post here and on the Harvard Law & Pol'y Review discussing it on Monday.

Michael C. Dorf said...

Hash raises the very question I raised for my students in Federal Courts today in connection with the letter. As it happened, I had also assigned some material on the enforceability of int'l law in US courts, including the Garamendi case, http://goo.gl/TAO8Bc , in which the Supreme Court treats an executive agreement with Germany as preempting state law. Even the dissent accepted that this was possible but read the executive agreement differently. Garamendi and the general practice of permitting the president to negotiate agreements with foreign sovereigns that bind the U.S. internationally and are enforceable domestically if not in contravention of the Constitution, laws, or treaties, is indeed difficult to square with the text of the Constitution. But as VP Biden's response to the 47 Senators notes, the practice is so deeply entrenched that it is not reasonably subject to elimination now. And indeed, as I note in the post, I don't read the 47 Senators as casting doubt on the availability of executive agreements either.

Hashim said...

Garamendi et al. at most support the validity of executive agreements that preempt state law. How do they support the proposition in your original post, which is that the President can enter into a binding executive agreement that would require the violation of *federal* law, and thus require *Congress* to repeal said law on pain of breach of intl law?

David Ricardo said...

@Shag

Good one, only a few of us history buffs get it though.

Michael C. Dorf said...

Hash: I am not making ANY normative points here. I am simply describing the conventional understanding of the relation between int'l law and domestic law as a means of making better sense of the Senators' letter than the conversation up until now has.

Let me give you a simple example. Suppose that the President enters into a status-of-forces exec agreement w/ a foreign sovereign that permits the U.S. to maintain a military base on that foreign sovereign's soil. So far as I know, no one questions the longstanding authority of the President to do so, and Presidents of both parties have consistently respected such agreements made by their predecessors. Now suppose that some provision of such an agreement violates a federal statute. That provision would be unenforceable as a matter of U.S. domestic law but the U.S. failure to enforce it would still be a breach of the int'l agreement. Whether that places a duty on Congress to amend the statute depends on whether one thinks Congress is duty-bound to abide by int'l law. Certainly no one could force Congress to change the law.

Hashim said...

Mike,

Sorry, I thought you were making a normative point, because the penultimate sentence of your post was: "To be clear, that would be a terrible thing to say on policy grounds and on separation-of-powers grounds."

After all, it would *not* be terrible on separation-of-powers grounds for Congress to say that they're going to breach the executive agreement *if* the agreement itself violates the separation-of-powers (on the theory that it's a Presidential attempt to coerce Congress into repealing a duly enacted law on pain on bringing the US into breach of intl law).

For example, if the President purported to enter into an executive agreement with China that Congress would enact a one-child policy, I would think it'd be very important for Congress to make crystal clear to China that the President has no constitutional authority to enter into such an agreement. That way, China can't credibly complain when the U.S. inevitably breaches the agreement.

Ditto in these circumstances, or in your hypo. If the President is entering into an executive agreement that the U.S. will inevitably breach because Congress will not be coerced into repealing a valid domestic law as necessary to comply with the agreement, I would think it'd be better for everyone to know ahead of time that breach is inevitable.

Michael C. Dorf said...

Oh yes, of course my claim that breaching would be terrible on policy and SoP grounds was normative, but I meant that as an aside. And you're right, of course, that the SoP point is somewhat parasitic on the policy point. I guess my view w/r/t SoP--as a matter of etiquette and comity if not strictly constitutional law--is that the sort of freelancing here should only be undertaken in response to an outrageous proposed exec agreement, as in your hypo but not, in my judgment, what is being negotiated currently. That's why I also opposed Nancy Pelosi's freelancing. At the time I wasn't sure the Bush policy of isolating Assad was optimal but it was not so far from reasonable as to warrant congressional freelancing. But to be clear, these points are really tangents to my post, the main point of which is to understand the nature of the Senators' claims.

Hashim said...

Sorry if I'm being dense, but I really don't see the connection between the policy q and the SOP q.

Let's stipulate that whether to repeal the Iran sanctions statute is a question about which reasonable people can disagree. But let's further stipulate that Congress honestly believes that it'd be a mistake to repeal the statute.

So now what should Congress do if the President is negotiating an executive agreement that would bindingly commit the US to repeal the statute as a matter of intl law?

First, it seems to me that, as a matter of SOP, Congress should not subordinate its policy judgment to the President's -- this isn't "freelancing," since it concerns the status of domestic law, which is a quintessential legislative function.

Second, given that Congress will not be repealing the law, it seems to me that, both as a matter of SOP and as a matter of policy, Congress should make that clear ex ante. That way Iran is on unambiguous notice that the US will breach any such agreement, and can't claim to be aggrieved by such breach.

To be sure, it'd be better if the President simply gave up on the agreement at that point, or at least honestly told Iran that Congress intends to breach. But if the President tries to convince Iran that Congress will repeal the law when Congress is dead-set against doing so, it hardly seems like "freelancing" for Congress to correct the record. That way, no foreign country can claim the US misled them into entering into an executive agreement.

Michael C. Dorf said...

It's the form that makes this an SoP issue--a warning to the leaders of an adversarial sovereign with which the Administration is engaged in delicate negotiations pursuant to its constitutional powers to conduct diplomacy. Had the 47 Senators styled their views an Op-Ed addressed to the American people that would have made the objections much less forceful.

Shag from Brookline said...

BREAKING NEWS!:

MILITARY/INDUSTRIAL COMPLEX ANTI-IKE PRIZE FOR 2015 AWARDED TO KING COTTON AND HIS 46 BOLL WEEVILS!

Hashim said...

But Congress doesn't need to inform the american people that it won't be repealing the law. It needs to inform the foreign country, because that's who needs to be put on notice that the executive agreement will inevitably be breached, so that it can't claim that the US misled it.

SOP shouldn't require kabuki theater in these circumstances. It's an odd notion of SOP where the President can violate SOP by making a binding agreement promising that the US will do something that he lacks the constitutional power to perform by himself, and nevertheless assert that SOP constrains the form in which Congress tries to avoid/mitigate the potential breach of intl law (by giving the foreign country clear notice that the agreement will not be performed if entered into).

Shag from Brookline said...

Some of King Cotton's 46 Boll Weevils lately have expressed a variation of Cole Porter's "Miss Otis Regrets ...."

And GOP presidential (possible) hopeful Sen. Lindsey Graham, a Boll Weevil and a reserve officer in the military, recently stated that if he were President, he would order the military in to force Congress to reverse defense budget cuts. Following criticism, according to Bloomberg News,

" ... Graham decided to backpedal his dictatorial fantasy stating that it was 'over-the-top humor.'"

Thought it was crackers for this "Not Ready for Prime Time" possible presidential candidate, under the Big Top with some of the other clowns.

"Oh when those cotton balls get rotten ...."

Joe said...

Shag, it's all in cheeky fun.

Leave the humor to the professionals people. SNL shows how hard it it to be consistently funny, especially over 40.

Shag from Brookline said...

Joe, I don't know if "The Strip" creator at the NYTimes is over, under or exactly 40, but this link:

http://www.nytimes.com/slideshow/2012/07/08/opinion/sunday/the-strip.html?ref=opinion#1

goes well beyond my geriatric attempts at tragicomedy.

And Jon Stewart, over 50, ginned up on King Cotton and his 46 Boll Weevils early last week, also capturing inconsistencies of certain Democrats.

As to SNL, I'm not allowed to stay up that late and rely upon snippets at political websites. But it's too early for that right now, maybe later today when the over 40 editors are awake.

At my stage of the game, I prefer to be consistently regular. But I recognize Congress' irregularities in its dysfunctional state. Rachel Maddow (is she over 40?) used editorials from hometown papers of some of the King Cotton missive signers to deride them, and quite effectively. But slicing and dicing the legal implications of foreign policy and international law can also be entertaining, perhaps unintentionally. What's needed is a separation of powers crowbar once we restore Randy Barnett's lost Constitution.

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