Our “constitutional scholar” in the White House is doing his best to violate Article II, Section 2, of the U.S. Constitution by entering into a treaty with the Islamic Republic of Iran.
Can he get away with it?
Article II, Section 2 reads in part: “He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …”
Under the U.S. Constitution—which used to be the law of the land; these days, not so much—the president may negotiate treaties, but those treaties must be ratified by a two-thirds vote of the Senate.
However, President Obama has zero intention of getting Senate consent.
The White House will claim that Obama’s Oval Office predecessors often entered into agreements with other countries without ratification by the Senate. That’s true, but as in so many other cases—e.g., his executive amnesty—he intentionally distorts past actions.
Other types of international agreements
Presidents, from the Founding Fathers on, have entered foreign agreements that don’t rise to the level of a treaty. These agreements fall into two categories: a congressional-executive agreement and a sole-executive agreement.
The congressional-executive agreement allows the president to negotiate a treaty, which is then subject to a majority vote by both houses of Congress. One of the more common types of this treaty is a trade agreement, especially when Congress has approved what’s called “trade promotion authority.” [See the Congressional Research Service’s discussion here.]
The sole-executive agreement permits the president to take certain limited steps with foreign powers, but they usually are tied to previous treaties or congressional-executive agreements. In other words, they are essentially implementing, modifying or enforcing previously ratified treaties. And they can be discarded by the next president.
The treaty with Iran
We don’t know yet what’s in the agreement with Iran, but its purpose is to limit the country’s ability to develop nuclear weapons—or at least that’s what it’s supposed to do. And it will likely reduce sanctions if Iran complies with certain conditions, but those sanctions were imposed by Congress and any permanent reduction requires a congressional vote.
It is an extremely important treaty because there is some bipartisan support for going to war with Iran if it moves forward with developing nukes. In addition, if Iran used its nuclear capability to threaten or attack Israel—or even a Sunni country like Saudi Arabia—that action could drag the U.S. into a war.
It is precisely the kind of treaty that demands that the president get the advice and consent of the Senate because he is putting the U.S. at risk militarily and financially. If Iran were to renege on it’s promises in the treaty, the president will likely need congressional support to respond.
But like his decision to go-it-alone on his health care law (e.g., not getting any Republican support) and his multiple go-it-alone executive actions (e.g., amnesty, suspending parts of the health care law), Obama has no intention of getting congressional buy-in, either the constitutionally mandated two-thirds vote of the Senate or a majority vote from Congress.
That’s reckless, dangerous and likely unconstitutional.
Efforts to get Obama to follow the Constitution
There has been a lot criticism of the 47 Republican senators who sent a letter to the Iranian leadership warning that any agreement between the terrorist state and the president could be reversed by the next U.S. president. Several people are even tossing around the word “treason,” even though it’s the president who is ignoring the Constitution he swore to uphold and defend.
Reasonable people can agree or disagree over whether a treaty with Iran is a good idea, or whether the final product—if there is one—will achieve the intended goal.
What should not be up for debate is that the president needs congressional buy-in for a treaty of this magnitude. The Republicans sending the letter to the Iranians weren’t trying to school them on the Constitution; they were trying to school Obama.