The Slatest

The Republicans’ Latest Iran Ploy Is Brazen, Borderline Unconstitutional, and Totally Predictable

Sen. Tom Cotton.*

Photo by Justin Sullivan/Getty Images

Exasperated by their inability to deter the Obama administration from signing what they view as a disastrous nuclear treaty with Iran, Senate Republicans have decided to see if they might have better luck with the Iranians.

A group of 47 Republican senators organized by Tom Cotton of Arkansas has drafted an open letter to the “leaders of the Islamic Republic of Iran” explaining “features of our Constitution … which you should consider seriously as negotiations progress.” After explaining the difference between a treaty, which two-thirds of the Senate must approve, and a congressional-executive agreement, which requires a majority vote in both chambers, the senators note that because of differences in term limits, “President Obama will leave office in January 2017, while most of us will remain in office well beyond then.” They then warn that “we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei” that the next president could revoke “with the stroke of a pen.”

It’s not exactly news that congressional Republicans are opposed to the deal, and Iranian officials—a striking number of whom were educated in the U.S.—probably don’t need a Schoolhouse Rock lesson in the separation of powers. Iranian negotiators seem to be factoring the potential for congressional action into their position. But the letter is still a fairly blatant attempt to undermine the White House’s credibility in the negotiations. As international law professor Julian Ku notes, the letter seems carefully crafted by Cotton, a constitutional lawyer himself, to avoid actually stating opposition on the deal, which would arguably be illegal interference in ongoing negotiations. But it’s hard to see a senator writing to a foreign government to advocate against a deal still under negotiation as anything other than a brazen and unprecedented attempt to subvert the president’s constitutional authority to conduct foreign policy and negotiate treaties.

Then again, given the approach the administration has taken toward these negotiations, which involve sidelining Congress entirely, it’s hard to get on a constitutional high horse about the Republicans’ latest gambit. The full details still haven’t been released, but the most likely outcome is that in exchange for nuclear concessions, the administration will agree to suspend some of the sanctions against Iran through executive action. Eliminating the sanctions entirely would require (extremely unlikely) action by Congress, but executive actions could at least buy a few years for the deal to go into effect. If senators have their ability to vote on treaties taken away, it’s entirely predictable that they’ll find other ways to block them.

It’s worth pointing out that when positions have been reversed, Democrats have objected to presidential tactics like this. Back in 2002, when George W. Bush attempted to reach a handshake agreement on nuclear arms reductions with Vladimir Putin without a formal treaty, then-Sen. Joseph Biden demanded that the deal be subject to Senate ratification.

As with issues ranging from immigration to climate change, it’s clear the White House feels that overwhelming Republican intransigence justifies an Iran deal that won’t be subject to congressional approval. Given the importance of the deal and the near impossibility of ratifying treaties in today’s Congress, I think that approach is justified. But if the White House is going to entirely abandon the route to treaties laid out in the Constitution, it can’t really complain when senators don’t stay in their lane. At this point, everyone seems to be breaking the rules. 

*Correction, March 10, 2015: The photo caption on this post originally misidentified Tom Cotton as a representative. He is a senator.