On the Senate Letter to Iran

A few quick points on yesterday’s open letter from 47 Republican Senators to the government of Iran:

(1) I don’t see legislative communications with foreign governments as categorically or even mostly unconstitutional, especially when Congress doesn’t purport to speak on behalf of the United States. But this letter still raises concerns. What distinguishes it from many other similar acts is that the Senators issued it without coordinating with the executive branch, and for a purpose at odds with the President’s attempts to reach a nuclear deal with Iran. There’s far less precedent for legislative diplomacy of this type.

(2) It’s rich that the Senators, whose stated purpose was to educate the Iranian government on the U.S. Constitution, incorrectly described the Senate’s role in treatymaking. According to the letter, the Senate “ratif[ies]” treaties after the President negotiates them. But of course that’s not right. As the Senate’s own website explains, the “Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).”

(3) Finally, the Senators are probably correct as a matter of constitutional law in stating that a subsequent President could unilaterally revoke whatever agreement might emerge from the nuclear negotiations. But the Senators completely disregard that revocation could, depending on the nature of the agreement, place the United States in breach as a matter of international law. And they’re probably wrong in stating that “future Congresses could modify the terms of the agreement at any time”—future amendments are presumably possible, but presumably only if Iran agrees to them.

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