Yesterday's letter from Republican Senators to the Iranian leadership makes this a pertinent question. It allows us a further look at the separated powers. The textbook story is that Congress shares influence over domestic policy with the executive branch, but defers to it when it comes to foreign affairs.
- Click here for the letter.
Its a very brief letter that intends to inform the "Leaders of the Islamic Republic of Iran" of the constitutional basis of both treaty making and terms lengths. The first point they make is that if Congress does not ratify a president's agreement it is a "mere executive agreement." The second is that die to term limits President Obama will only be in office through January 2017 while many of the senators plan to be in office for decades. This weakens the status of whatever agreement should be struck between the president and the Iranian government.
Not surprisingly the White House objected.
For background on the dispute, click here: The Nuclear Talks With Iran, Explained.
Before we go much further, here is the actual language in the Constitution - not the omission of the word "ratify."
Article 2, Section 2, Clause 2: He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur
- Click here for background from the Founder's Constitution.
- Click here for annotations from Findlaw.
But what do the experts say?
These are links to recent commentary form the writers at Lawfare - a site that specializes on national security.
- The Error in the Senators’ Letter to the Leaders of Iran.
The author - Jack Goldsmith - points out a nuance I hate to say I was not aware of, one that comes from the Senate's own website:
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.
It then mentions a story I try to relate in class when discussing Washington's decision to use his department chairs - what is now known as the "cabinet" - as his chief advisers rather than the Senate:
The Senate of the First Congress set the precedent for how it would handle treaty consideration. When President George Washington visited the Senate Chamber in August 1789 to seek advice and consent on a pending treaty, he became frustrated when the senators referred the treaty to committee for further discussion. Another 130 years would pass before another president of the United States personally delivered a treaty to the Senate. On July 10, 1919, President Woodrow Wilson asked for a quick consent to the Treaty of Versailles.
Goldsmith recommends a a report from the Congressional Research Service for further detail.
- Click here for the report.
And highlights the following:
“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.”
So the president ratifies treaties, the Senate advises and consents to them.
More from Lawfare:
- More on the Senate’s Role in the Impending Iran Deal.
- The Iran Letter and the Logan Act
