The letter is a step in the right direction, although it is unfortunate in a couple of respects. First, it is inaccurate. The senators write: Under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. Actually, the Senate does not ratify treaties. It is supposed to provide advice and consent to the president in the making of treaties, and must consent by a two-thirds majority if the treaty provisions are to become binding (U.S. Const., art. II, sec. 2.). It is the president who ratifies the treaty if the Senate consents. A president is not required to ratify a treaty after Senate consent, and a president may unilaterally abrogate a treaty without Senate consent (as, for example, President George W. Bush did in 2001 with the Anti-Ballistic Missile treaty with the former Soviet Union).
Substantively, this is a small point. After all, many people understandably conflate consent with ratification, since a treaty cannot be ratified absent Senate consent. But when the point of a letter is to lecture people about our law, getting the law wrong is, shall we say, unbecoming. It is also all well and good to inform the jihadist regime, as the Republican senators do, that the president is term-limited and has less than two years to go, whereas senators are not term-limited. Thus, the letter explains, most senators who object to Obamas negotiations with Iran will still be around after he is out of office. But it is gratingly grandiose for the senators many of whom are currently very unpopular with their constituents to brag that they will be around for perhaps decades after Obama is gone.
Moreover, even if that last assertion were true, there is less to it than meets the eye. The senators point is that, if Obamas agreement is not approved and ratified, it will have the status of a mere executive agreement between the president and Ayatollah Khamenei. Well, yes . . . but the next president could honor the agreement, which presidents tend to do. Furthermore, this particular Senate has been unwilling or unable to block presidential overreach of any kind. So while the senators may manage to get themselves reelected for perhaps decades, much more consequential for Irans purposes is the question: Who will become president in 2017?
All that said, it is good that the senators wish to put Iran on notice that they will not consider the United States to be bound by an unratified agreement between Obama and the mullahs. If the senators want to do something really helpful, though, they will move forthwith from writing this letter to passing a sense of the Senate resolution. It should state, in no uncertain terms, that under our Constitution the United States is not bound, our sovereign powers are not affected, and no legal duties may be imposed on our government or our citizens, unless any international agreement with Iran is submitted to the Senate for approval and then ratified after a two-thirds majority has consented. It is important to do this for a few reasons. First, it puts the White House on notice that tolerance among the peoples representatives is exhausted when it comes to Obamas appeasement approach to a government that has made itself our enemy for over 30 years. Second, it would strengthen the hand of this president or any future president to drive a hard bargain with Iran. Third, it would force Democrats to go on record regarding their position on Obamas dealings with the mullahs. Fourth and finally, it would undermine what I call the international-law game.
On that last point, it has become the approach of transnational progressives to circumvent the Constitutions treaty requirements. Presidents sign bilateral or multilateral international agreements that often contain statist and counter-constitutional provisions that no president (except maybe Obama) would dare propose as legislation. Knowing there is no chance of getting such an agreement approved, the president does not submit it to the Senate, and it is never ratified. Nevertheless, the agreement is approved by other countries, which start acting on the presumption that the presidents signature binds the U.S. In Washington, the administrative state, and particularly its sprawling complex of executive-branch bureaucracies (including the State and Defense Departments), begin to conduct their affairs as if the agreement were binding. The federal courts may even start citing the unratified treaty in legal opinions.
On the basis of all this, the international lawyers and organizations such as the United Nations, the Organization of Islamic Cooperation, and the European Union all of which have an interest in being able to trump the U.S. Constitutions protections of individual liberty and American sovereignty begin to argue that the unratified agreement has transmogrified into customary international law; thus, the argument goes, lest it be considered an international outlaw, the United States must abide by the terms of the agreement even if the Senate has not ratified it.
This hocus-pocus works, at least as a practical matter, because the Senate fails to defend its institutional turf by speaking up and conveying dissent in a formal way. Senators seem to think they need do no more than resist approving international agreements. But as were seeing with Obamas Iran negotiations, they are sometimes not even asked to approve. In any event, it is not sufficient to refrain from saying yes; the Senate needs to take unambiguous action by saying no. A sense of the Senate resolution would undermine any legal claim that an unratified international agreement binds the United States in any way. In light of the threat posed by a nuclear Iran the worlds most destructive weapons within reach for the worlds foremost state sponsor of terrorism it is crucial that the Senate make itself heard in a formal, forceful manner. A letter will not do the trick.