Senator Tom Cotton’s “open letter” to the leaders of Iran on negotiations over its nuclear program ran into a buzzsaw of criticism from the president, vice president, our negotiating partners and members of Congress from both parties. The main criticism: Senators should not thrust themselves directly into the middle of ongoing negotiations between the U.S. and other countries.
The Arkansas Republican and his 46 Senate Republican co-signers have been accused of everything from trying to blow up the negotiations and undermining the president to giving aid and comfort to the enemy and betraying the national interest. The critics have the first part right: It is impolitic, inappropriate and undiplomatic for members of Congress to insert themselves into delicate multilateral talks by directly communicating with any foreign parties to the negotiations.
To make any judgment on the letter’s motive and impact, however, requires a careful reading of the letter itself. Such a reading reveals little more than what could have been an executive summary of a Congressional Research Service report on the differences between treaties, congressional-executive agreements and executive agreements and their relative legal significance. It was a U.S. Constitution 101 tutorial for the Iranian leaders.
Treaties, which require the concurrence of two-thirds of the Senate, are recognized by our Constitution as being the law of the land. Congressional-executive agreements have the same weight as other laws, binding on the government and nation until amended or repealed. Executive agreements on the other hand, are commitments made by the president to another country and have no standing in law unless and until subsequently affirmed in implementing legislation.
Secretary of State John Kerry told the Senate Foreign Relations Committee last week the administration will not submit the agreement to Congress for approval because "We're not negotiating a, quote, legally binding plan." Meanwhile, the committee's chairman, Tennessee Republican Bob Corker, at least before the letter, was just two senators short of a veto-proof supermajority for his bill to require congressional review of the agreement with options to approve, disapprove or passively acquiesce.
The tenuous prospects of a nonbinding agreement has made members of Congress both anxious and frustrated. The Cotton letter is one manifestation of that frustration. Nevertheless, it should more appropriately have been sent to the U.S. president and shared with the American people, since the Senate has the constitutional role of providing advice and consent to the president on treaties. Most major arms control agreements have been submitted to the Senate as treaties. Presumably, the advisory function applies to important multilateral arms control agreements as well.
The Cotton letter had the intended effect of the proverbial two-by-four on a mule: it got the attention of the administration, the media and the general public. It was a form of instant messaging conveyed quickly and clearly. The central message was that the direction and content of any final agreement cannot be ratified by executive actions alone and still be acceptable, credible and enduring.
This is not the same as an executive order requiring greater energy efficiency in federal buildings. It is a matter of high international importance affecting the safety and stability not only of the Middle East but of the entire world.
Those who argue that Congress should play no role during ongoing negotiations are acolytes of the imperial presidency who dismiss as obsolete the Constitution's myriad Article I foreign affairs responsibilities lodged with Congress, including the Senate’s advisory role on treaties. That some members have chosen an unorthodox manner of offering that advice should not obscure the legitimate security concerns and institutional obligations reflected in that advice.
As constitutional scholar Edward S. Corwin wrote: “The Constitution…is an invitation to struggle for the privilege of directing American foreign policy.” The current controversy is a reminder of the role Congress is expected to play in that struggle, even if the game sometimes involves questionable plays.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee. The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.