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.