BY ELIZABETH FATA – The Islamic Republic of Iran has been on the receiving end of a diplomatic freeze out that has lasted roughly 35 years.[1] Since the start of the Iranian Revolution in 1979 – and the subsequent Persian hostage crisis in 1980, the U.S. has refused to engage in any formal diplomatic relations with Iran.[2] In 2002, news that Iran was developing a nuclear facility began to surface and relations between Iran and the West continued to deteriorate.[3]
The news brought with it a round of international sanctions that still stand today.[4] Now, the U.S. is currently engaged in a historic negotiation with Iran, along side Britain, France, Germany, Russia, and China, to lift the sanctions in return for limitations on Iran’s nuclear program. The negotiations bring to the surface not only decades of foreign animosity, but also an ongoing domestic power struggle between two supposedly balanced branches of government: the executive and the legislative branches.
These two equal branches of government have a history of disputes over foreign policy authority. This is likely due to the fact that the executive’s power over foreign affairs has also been heavily disputed.[5] Two areas, however, have remained relatively clear. In the case of passing treaties, the U.S. Constitution explicitly states that 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.”[6]
An executive agreement, on the other hand, does not need Congressional approval.[7] The president has the exclusive authority to negotiate executive agreements in order to resolve international disputes.[8] Even with this established bedrock, Congress and the Executive continue to debate the appropriate delegation of control over foreign affairs.
The current state of affairs is no different. While President Obama engages in negotiation with Iran and other foreign powers, Republican congressmen have asked the president to include Congress in the negotiations.[9] The chairman of the Senate Foreign Relations Committee has urged President Obama to put the nuclear agreement to a congressional vote before seeking a United Nations endorsement.[10] Senator Bob Corker, a Republican from Tennessee, stated that if President Obama failed to do this “it would be a direct affront to the American people” and would “undermine Congress’s appropriate role.”[11]
However, President Obama’s administration has no plans to seek congressional approval.[12] Secretary of State John Kerry, who has been negotiating on behalf of the U.S., stated that the agreement will not be “legally binding” and, therefore, does not need Congressional approval and cannot be altered by Congress.[13] Senator Kerry remains confident that if Iran upholds their end of the bargain—along with the other negotiating countries—future presidents will uphold the agreement as well.[14] The attempted negotiations are nothing more than an executive agreement, a use of presidential power that the Courts have clearly supported.[15]
Yet despite this accepted use of power, 47 Republicans signed onto a letter sent to Iranian leadership expressing their disapproval with the nuclear negotiations.[16] The letter warned Iran that an agreement reached that was not approved by Congress would not be legally binding, could be modified by Congress, and may be revoked in the future by another president.[17]
This letter has been met with severe backlash by Kerry[18] as well as by Iranian Supreme Leader Ayatollah Khamenei.[19] Kerry reacted to the letter with “utter disbelief” and publicly stated that it contained erroneous assertion of fact.[20] Kerry claims that the mischaracterizations include statements that the negotiations are legally binding and that Congress can modify the terms of the executive agreement.[21] Ayatollah Khamenei, on the other side, reacted to the letter with accusations of “deception, trickery, and backstabbing” by the U.S. that he believes are aimed at undermining any comprehensive deal.[22]
This type of letter, timed after roughly 35 years of nonexistent relations with Iran, has no known precedent in American history.[23] Disputes over the proper allocation of foreign negotiating powers have never been dealt with by circumnavigating the president’s active negotiating efforts. The only precedent that exists in this arena is that the “president is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”[24] As Kerry stated, the letter tells the world that “if you want to have any confidence in your dealings with America, [you] have to negotiate with 535 members of Congress,”—clearly a gross mischaracterization of the structure of U.S. foreign affairs.[25] Whether the letter will succeed in undermining the president’s authority in international affairs is yet to be seen.
[1] U.S. Relations with Iran, U.S. Department of State (Mar. 10, 2015), http://www.state.gov/r/pa/ei/bgn/5314.htm.
[2] Id.
[3] US-Iran relations: A Brief Guide, BBC (Nov. 24, 2014), http://www.bbc.com/news/world-middle-east-24316661.
[4] Id.
[5] Alex Kozinski, Executive Power in Foreign Affairs, 30 Harv. J.L. & Pub. Pol’y 137, 137.
[6] U.S. Const. art. II, § 2.
[7] Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259, 327 (2009).
[8] Id.
[9] Michael R. Gordon & David E. Sanger, Senator Corker Pushes Obama for Congressional Vote on Iran Deal, N.Y. Times, Mar. 12, 2015, http://www.nytimes.com/2015/03/13/us/politics/republican-senator-pushes-for-a-vote-on-iran-deal.html?ref=topics&_r=1.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Michael R. Gordon, Kerry Criticizes Republican Letter to Iranian Leader on Nuclear Talks, N.Y. Times, Mar. 11, 2015, http://www.nytimes.com/2015/03/12/world/middleeast/republican-letter-to-iranian-leaders-on-nuclear-talks.html?ref=topics.
[15] See U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
[16] Id.
[17] Id.
[18] Id.
[19] Laura Smith-Spark, Iran’s Leader Accuses World Powers of Trickery Over Nuclear Deal, CNN (Mar. 12, 2015, 9:20 AM), http://www.cnn.com/2015/03/12/middleeast/iran-nuclear-deal/index.html.
[20] Gordon, supra note 13.
[21] Id.
[22] Smith-Spark, supra note 19.
[23] Robert Creamer, GOP Senate Letter Undercutting Nuclear Negotiations Has No Known Precedent in American History, Huffington Post (Mar. 11, 2015, 2:14 PM), http://www.huffingtonpost.com/robert-creamer/gop-senate-letter-undercu_b_6849152.html.
[24] Curtiss-Wright, 299 U.S. at 319.
[25] Smith-Spark, supra note 17.
