March 17, 2015

The answer to the question I had that was the reason why I was refraining from writing about that Tom Cotton Iran letter.

I couldn't understand the nature of the controversy without knowing whether the letter was actually sent to Iran, and I read a bunch of articles about the letter without seeing an answer. Finally, this National Review headline popped up: "The Cotton Letter Was Not Sent Anywhere, Especially Not to Iran."

It was just an essay in the familiar (if not trite) form of an "open letter." It's a rhetorical device that assumes a point of view, as if X is talking to Y. We can criticize the form and the content.

As content, it undercuts (or seems to undercut) what the President seems to be trying to do. I don't know what the President is really doing with respect to Iran, but I am observing what Iran is doing (being allowed/encouraged to do?) in Iraq. Members of Congress undercut the President sometimes, and having lived through the Vietnam era, I'm no going to say they should shut up entirely, but there is a line and we could argue about when it is crossed. I'd say Harry Reid went too far when he said "This war is lost."

But let's talk about the form. The form was great at getting attention, possibly too much attention. And speaking of attention, I don't think the letter is too well-written. The word "attention" is repeated in the first 2 sentences, and not in a good way. In an inattentive way. "It has come to our attention... we are writing to bring to your attention...." That comes across as pompous officialese, like something from a bill collector or from a lawyer who's trying to scare you into ceasing and desisting from something or other.

The letter proceeds to offer legal advice in an oversimplified and puzzling way. An executive agreement is only an executive agreement and will be regarded as an executive agreement. Yes, and? It's something the next president can "revoke... with a stroke of the pen." Style note: Get rid of any unintentional rhymes, especially when you're trying to sound all official and pompous.

The closing sentence features pretty words — "We hope this letter enriches your knowledge... and promotes mutual understanding and clarity...." Hope, knowledge, understanding, and clarity. Isn't this the standard move in letters from bill collectors and lawyers? End with a few nice words about going forward in a positive way?

I hope this blog post has enriched your knowledge and understanding as we move forward into the future.

118 comments:

Tim said...

I will care what the Democrat Party thinks when they "protect and defend the Constitution of the United States against all enemies, foreign and domestic" as they have sworn to do.

rhhardin said...

The this war is lost thing was about the failure narrative, directed not at foreign policy but against Bush.

This letter is to remind Obama of something about his job.

It won't work, of course.

PB said...

The Dems go hyperbolic when ever anyone dares to disagree with them or their high priest Obama.

On Iran: Valerie Jarrett was born in Tehran and the desire to seek normalization originates with her. Also, Obama likely reckons that a single, larger entity in the Middle Ease would be much easier to deal with that all the smaller states, no matter who it is. Israel is a thorn in their side because they wouldn't go along and so they must be crushed.

Hagar said...

For all the talk about precedent for the President making Executive Agreements, I believe such things in the past have been done with general agreement in Congress as to the content of such agreements.
Here, Congress is making it clear that not only is there no such agreement, but the majority sentiment is strongly opposed to the direction the President is going.

However, it would have been better to publish it as an "open letter," or "letter to the editor," and making it clear in the opening text that that is waht it was. Beisides, the English and the the style criticisms AA points out.

The Drill SGT said...

As content, it undercuts (or seems to undercut) what the President seems to be trying to do.

Makes it easier for Obama to get a better deal with Iran by pointing at that any deal will need the consent of Congress to be useful.

At the same time it makes it harder for Obama to give away the US position against Iranian Nukes.

So less likely any deal but more likely that a deal will be more in the US interest than without any letter.

Virgil Hilts said...

I can't figure out why the MSM does not think it worth discussing what Senator Obama communicated to Iran during the Bush administration/Six Powers negotiations with Iran in 2008. http://pjmedia.com/michaelledeen/2014/08/29/latest-big-lie-we-have-no-strategy/
I guess it does not fit the narrative. http://www.powerlineblog.com/archives/2015/03/how-barack-obama-undercut-bush-administrations-nuclear-negotiations-with-iran.php

David said...

"Official and pompous" seems to describe Tom Cotton rather well. There are some admirable aspects to the man, but he always seems to be lecturing to a rather dull class.

Brando said...

I suppose Cotton and the others behind this letter view the negotiations as the next Munich, and believe if they don't find a way to stop it Iran will not only acquire a bomb more quickly than otherwise, but will use it against us or our allies. But I just don't see that being the case--if gradual normalization were conditioned on verification of no weapons program, how does than make them more likely to get and use the bomb than if we had no carrot to remove and had already used our sticks?

It doesn't seem there's any surefire way to make sure a determined country can't get the bomb--whether it's Red China, the USSR or Pakistan, if they want it enough they'll probably get one eventually. But we have a better chance of stopping that if we increase our leverage and have more international unity behind us, not to mention if we can also sow internal division in that country.

damikesc said...

"Official and pompous" seems to describe Tom Cotton rather well. There are some admirable aspects to the man, but he always seems to be lecturing to a rather dull class.

...as opposed to the President?

Michael Fitzgerald said...

Hope and change?

Hagar said...

We have been fighting an undeclared war with Iran for more than a decade. The majority of our casualties - dead and wounded - in Iraq and Afghanistan were due to weapons, explosives, money, and training supplied by Iran.
It is unseemly that the White House should be making "Executive Agreements" with the Iranian ayatollahs (not to mention Assad in Syria) as if none of this had happened.

Sloanasaurus said...

It seems really odd that Obama would try to pursue Iran policy on his own without involving the Senate or Congress. That isn't the way things have been done over the last 75 years. I am assuming that it is because most of the Senate disagrees with Obama including a significant number of Democrats. Being an appeaser does not play well in simple campaign messages.

damikesc said...

It seems really odd that Obama would try to pursue Iran policy on his own without involving the Senate or Congress. That isn't the way things have been done over the last 75 years. I am assuming that it is because most of the Senate disagrees with Obama including a significant number of Democrats. Being an appeaser does not play well in simple campaign messages.

Obama seems to have a lot in common with Wilson. Ignores Senate when it comes to treaties. Likes to ignore Constitutional law when inconvenient...

chickelit said...

Two things:

First, the letter undermines America looking like a "strong horse" under a single ruler. Foreign governments -- especially the autocratic ones -- tend to forget this. This reminds me of how the Nazis used to mock democracy for its messiness and disorder.

Second: Valerie Jarrett. Say what you will, but it is a terrible terrible coincidence that she was born/raised into her prejudices and holds her current position. We have to believe (but we cannot know) that she has our interests at heart. This is new ground for America.

tim in vermont said...

I am not sure what the fuss was about. Surely Snowden provided them with a copy of our Constitution, which is apparently top secret, in the files he released.

The funny thing is that the Iranians think that Obama's word is binding under "international law."

Apparently they are not the only ones.

But the law is the law, and any future Administration would be bound (provided of course that the agreement is on its own terms one that is intended to have a binding effect in international law and doesn’t violate the US constitution or other fundamental principles), and would face the consequences of being an international law-breaker.

Members of the Administration believe that the Constitutional requirement for the Senate to advise and consent on international treaties is a quaint notion unsupported in their reality.

Sloanasaurus said...

"But we have a better chance of stopping that if we increase our leverage and have more international unity behind us, not to mention if we can also sow internal division in that country."

Perhaps the only way to stop them from obtaining the bomb and using it short of war is to encourage internal strife and support internal revolution.

Obama's method of appeasing and legitimizing the current regime is not helping.

tim in vermont said...

I am pretty sure that, as much as liberals would like to install a strong man and flush the Constitution, and as much as "international law" supports strong men and dictators, they being in the majority at the UN, it doesn't.

Big Mike said...

So you would have given it probably a B- because it uses the word "attention" is repeated in the first two sentences? Whew! Tough grader. Glad I did mathematics and computer science in grad school instead of going to law school.

Although, I would like to respond to your charge that this letter is written "like something from ... a lawyer who's trying to scare you into ceasing and desisting from something or another." I think that making the Iranian negotiators understand that our Constitution does place checks and balances on what the President can and cannot do with respect to treaties is a good thing. Is it a bad thing to "scare" the Iranian negotiators into making concessions that they otherwise think they don't have to make? So maybe it deserves a better grade from you, Professor?

Hagar said...

I think Obama's intent goes beyond a "Munich." I do not think he is appeasing Iran, but rather is actively favoring them, and "disfavoring" our traditional historical allies in the Middle East, going back to the end of WWI.

I do not know what end result he has in mind, and he can't very well tell us, even he were ever inclined to tell us what is on his mind, since the outrage and national outcry would be immediate and "bi=partisan."

Mike Sylwester said...

Since this blog features so much discussion of writing, I recommend to its readers an article that People magazine published about the grammar mistakes in the Fifty Shades novels.

http://www.people.com/article/fifty-shades-grammar-mistakes

1. Punctuation Errors in Complex Sentences

2. Comma Misuse

3. Wordiness

4. Colloquialisms

5. Accidentally Confused Words

6. Sentence Fragments

7. Determiners

8. Prepositions

9. Passive Voice

buster said...

The letter was directed at Obama, not Iran. The message was that Congress no longer has confidence in his ability (or willingness) to negotiate an acceptable deal. This loss of confidence will spread to many other issues during the next two years.

buster said...
This comment has been removed by the author.
Simon said...

I don't think that it's persuasive in this day and age to say "well, we didn't actually put it in the mail to Tehran, we posted it on the internet." Well, you know, they do get the interwebz in Tehran, don't they? Were the Logan Act actually enforceable (dubitante), I don't know that "directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof" requires that the letter actually be sent.

And if their answer is "oh, it's just a conceit, it's just the form of an open letter, we had no intent to correspond with Iran," well, that's nice, but the fact is that you addressed an open letter to the Iranian government, you put it in a place where it was available to the Iranian government, and the Foreign Minister of Iran responded to the letter.

This is similar to the problem with Snowden. Snowden may not have sent a packet of material to Al Queda and its heirs an successors, but by putting it in the international press' online editions, he no less straightforwardly disclosed it to them. The world has changed. Time was, an open letter to Premier Chern'yenko that you send as a letter to the editor of your local rag was not going to reach Moscow; even if your local rag happened to be the New York Times, it was, you know, fifty-fifty. Today, if you post an open letter to President Putin on your blog, you've got a much better shot of getting it in front of his eyes.

Finally, the legal advice itself, I mean, I know that I've said this here before but it's important, the legal advice is plain wrong. How is it that half the Senate don't understand that a President can abrogate a treaty (not only an executive agreement) without Senate consent?

garage mahal said...

At least Cotton alerted us to the ominous fact that Iran is occupying Tehran.

Brando said...

As for the letter itself, Congress absolutely has a duty to use its power to affect foreign policy (although obviously it's more limited than with domestic policy)--I just don't think an "open letter" was the most appropriate way of using its influence. A joint resolution would have effectively gone on record as opposing the deal, while still not appearing to insult the president and undermine him in his negotiations. (I know I'd be pretty livid if Harry Reid's gang did this to a GOP president, and much of what they DID do during the Iraq War years was obnoxious and vile) More effective still would be withholding funding, though that has other political risks.

But the letter also wasn't necessary--the Iranians are well aware of how our Constitution works and the fact that most of Congress isn't backing Obama on this--none of this is secret--and is taking that into consideration in dealing with him. If anything, this wasn't really aimed at Iran but at American hawks, to signal open opposition to Obama.

Brando said...

"The letter was directed at Obama, not Iran. The message was that Congress no longer has confidence in his ability (or willingness) to negotiate an acceptable deal. This loss of confidence will spread to many other issues during the next two years."

I'm pretty sure Obama already knew that--this letter was aimed at American Iran hawks.

Simon said...

Hagar said...
"For all the talk about precedent for the President making Executive Agreements, I believe such things in the past have been done with general agreement in Congress as to the content of such agreements."

I think it's a lot of fuss about nothing. A Treaty is not the only form of international agreement, but it is the only form of international agreement that can arguably have domestic effect, it's the only form that the Constitution says may have some kind of domestic effect, and so it's the only one regulated by the Constitution.

tim in vermont said...

So when Harry Reid said "This war is lost." he violated the Logan Act because our enemies heard him?

Just trying to be clear here.

Or does your definition depend solely on the end result you are trying to achieve?

Obama apparently violated the Logan Act when he contacted Iran as a Senator *secretly* to assure them that he would give them a better deal, so don't sign anything. Is that what you are saying?

Or do you need to craft your definition so carefully that it only snares Republicans?

It's a serious question.

Simon said...

damikesc said...
"Obama seems to have a lot in common with Wilson. Ignores Senate when it comes to treaties."

What does it mean to "ignore" the Senate "when it comes to treaties" and when has the President done so?

machine said...

continued sabotage by the gop...if they don't win, they break everything and deny blame.

deny success no matter the cost is the game plan...

tim in vermont said...

it's the only form that the Constitution says may have some kind of domestic effect, and so it's the only one regulated by the Constitution.

More goal oriented hair splitting from Simon. If the commerce clause can apply to whether a man can feed his own grain to his own cow based on some infinitessimal and theoretical effect, then surely this agreement has "domestic affect" since US companies will be "affected."

So you are going to have to craft your definition even finer to reach your pre-judged goal of condemning Republicans.

tim in vermont said...

continued sabotage by the gop...if they don't win, they break everything and deny blame

Project much? Upset you guys lost the Senate? Now the Constitutional method of making treaties needs to be shit canned on account of you lost an election?

Simon said...

tim in vermont said...
"The funny thing is that the Iranians think that Obama's word is binding under 'international law.'"

Well, you know, maybe it is. I'm willing to concede that it would be a serious violation of international law and norms with great repercussions were the President to ignore, vitiate, or abrogate a treaty outside of the framework provided within the treaty itself. But who cares? In the last analysis, the President of the United States isn't answerable to or bound by "international law," he's answerable to us and he's bound by American law, by the Constitution of the United States. And he has the power under that law to abrogate any treaty he likes, and if our foreign partners think that that makes us too unstable a partner to treat with, quite frankly, that's a good thing, because it might disentangle us from some of the brambles into which General Washington warned us we ought not intrude.

TCR James said...

>>>But I just don't see that being the case--if gradual normalization were conditioned on verification of no weapons program, how does than make them more likely to get and use the bomb than if we had no carrot to remove and had already used our sticks?

Iran isn't the problem. Their neighbors fear them and have put the US on notice that if Iran has a bomb they (Saudi, Egypt, and who knows who else) will feel compelled to obtain nuclear weapons. As long as you're comfortable with the wobbly Egyptian government and our Saudi frenemies (also unstable) having nuclear weapons, then I guess it is no big deal.

tim in vermont said...

You keep talking about abrogating treaties, but Obama is trying to make a treaty.

Eustace Chilke said...

The first news report that I heard about this included the information that it was an open letter published in the U.S. and not sent to the so called Ayatolla directly or at all. This was on Fox News, which included information that throne sniffers at other sources would automatically leave out so as to stoke outrage on behalf of The One.

Not that Fox doesn't have throne sniffers or that the Ayatolla isn't a real Ayatolla, as Ayatollas go, which is not a high standard. I'm just more aware of apple polishing going on at other networks and prefer not to allow murderous bungholes to choose their own honorifics.

Simon said...

tim in vermont said...
"So when Harry Reid said 'This war is lost.' he violated the Logan Act because our enemies heard him?"

No: The Logan Act is framed in terms of foreign governments. Even if one assumes away all the other problems with the analogy, Reid was talking about the Iraq war, and the Iraqi insurgents were in no way, shape, or form, the government (legitimate or otherwise) of Iraq.

"Obama apparently violated the Logan Act when he contacted Iran as a Senator *secretly* to assure them that he would give them a better deal, so don't sign anything. Is that what you are saying?"

Yes: If he did so, that would almost certainly fall within the scope of the Act.

"Or does your definition depend solely on the end result you are trying to achieve?... Or do you need to craft your definition so carefully that it only snares Republicans? It's a serious question."

It isn't. You must be new here, Tim, so I'll say this once and once only: Don't confuse me for a Democrat just because I don't give my fellow Republicans a pass. If you want conservative bona fides, go look in the archive, where you'll discover that I have a record of comments here that goes back nearly a decade.

tim in vermont said...

However, several Members of Congress went to court to contest the termination [of a treaty by the President], apparently the first time a judicial resolu[p.491]tion of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.367 While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.3

Not sure where you are getting this stuff Simon.

Hagar said...

There are lots of things the Executive does in carrying out the general policies of the United States without tying up Congress by going back for explicit legislation on every little thing.

But here we have a case where the President is going off in the opposite direction from both the present Congress and a century-long tradition, and Congress is making it clear it is not going to sit for it.

This "deal" of Obama's is not only going to be a dead-letter deal in Teheran, but in Washington as well.
It is all theater.

CatherineM said...

It's basically an Op-Ed. The President and all of the Dem talking heads (including Hillary spokespe) kept saying "sent" on purpose because that's what will stick in the heads of people. The the willing on the MSM repeated. Looks like it worked.

tim in vermont said...

So if Harry Reid communicates with the enemy, as surely he knew he was, as long as he doesn't say a name, he is free and clear?

That's just more hair splitting. Another distinction without a difference, and an assault upon the free speech rights of Americans.

The Drill SGT said...

Hagar said...
We have been fighting an undeclared war with Iran for more than a decade


More than 4 decades by my count...

Ask the Diplomats held for more than a year, or the families of the dead Marines in Beirut.

Simon said...

tim in vermont said...
" If the commerce clause can apply to whether a man can feed his own grain to his own cow based on some infinitessimal and theoretical effect, then surely this agreement has 'domestic affect' since US companies will be 'affected.'"

Again, you must be new. As I said here in 2007, I would overrule Wickard.

Interesting modus operandi you've got there: If a person isn't regurgitating this morning's talking points memo from "Redstate.com," ZOMG, they must be a Democrat, and that means we can hang every inane bit of librul stupidity on them!

Are they actually a Democrat? Are they actually a librul? Does it matter?

Well, it does if you don't want to look stupid, and coming in here where folks have known my views for most of a decade and suggesting that of all people I'm a liberal is a fast way to make yourself look stupid.

tim maguire said...
This comment has been removed by the author.
sparrow said...

Just a for a minute I'd like to dispense with the legalities and ask: Is it in our interests to have a "deal" with Iran?

What can we gain - anything at all? I see what we've already lost by negotiating (respect clout etc). What possible good could from this; I find it irrational and self destructive.

tim in vermont said...

OK, you would over-rule Wickard.

So now I know that your legal opinions on constitutional matters are based on you having the power to change precedents at will.

Got it. Thanks.

tim maguire said...

Since I mostly hear about this letter from the usual gang of idiots in my Facebook feed who can't shut up about their stupid liberal politics, I was happy not reading about it here.

Kind of funny that, for all the their hysterics about treason, this letter was never even an actual letter, let alone sent

Brando said...

"Iran isn't the problem. Their neighbors fear them and have put the US on notice that if Iran has a bomb they (Saudi, Egypt, and who knows who else) will feel compelled to obtain nuclear weapons. As long as you're comfortable with the wobbly Egyptian government and our Saudi frenemies (also unstable) having nuclear weapons, then I guess it is no big deal."

I'd say that would be a big deal--while often we can't stop a determined country from getting the bomb, it is in our interest to find ways to prevent it from happening, particularly where the country is unfriendly (e.g. Iran) or unstable (e.g., Egypt). But that's where our leverage comes in--a government that doesn't care about U.S. or international opinion because it trades little with us and thrives on being an isolated dictatorship will try to do whatever they want, and we'll have little leverage with them. One reason we may be able to prevent this in Egypt and Saudi Arabia is because those countries depend on us for aid.

Easing sanctions with Iran may make the moderates more influential there, but also gives us something to take away if they try building a weapon (which is one reason the deal may still be scuttled by their hardliners--neither part of that is appealing to them). But what's the alternative? Continued sanctions that Russia and China will likely violate?

Simon said...

tim in vermont said...
"You keep talking about abrogating treaties, but Obama is trying to make a treaty."

Is he? Or is he trying to reach an executive agreement? Here's a hypothetical for you and Hagar to consider. Let's suppose that things are heating up between Russia and the Ukraine, and the American President calls up the Ukrainian President and says, "listen, we don't want you guys to fold like a cheap suit, you really need some AWACS support, but we don't want to be at war with Russia either, so here's my offer: My pilots will fly AWACS patrols in my planes, but we're going to fly them out of your airbases, and we're going to paint your flag on the planes, and we're going to put your flag on the flightsuits, and both countries will get the data. Deal?" Now, when the Ukrainian President says yes, that's an executive agreement. Does President Obama have to have the Senate ratify that as a full-dress treaty, does there have to be some fancy shindig for the signing, or can we get on with flying the planes already?

If your position is that any international agreement is a treaty, as it seems to be, your answer has to be that Senate approval is required. Of course, that conclusion is absurd and plainly wrong, which should tell you that your premise is wrong.

sinz52 said...

Brando said: "I suppose Cotton and the others behind this letter view the negotiations as the next Munich"

To hawks like Cotton, McCain, etc., every international crisis is the next Munich.

Heck, in the case of Iran, both National Review and Powerline have been waving the Chamberlain analogy around now for months. Complete with photos of Chamberlain to illustrate the point.

Just like Saddam's development of WMD was another Munich to them.

As was Saddam's invasion of Kuwait.

As was Milosovic's ethnic cleansing in the Balkans.

Every time they want to argue for U.S. military action somewhere on earth, they always bring up Chamberlain and Munich one more time.

Once the Soviet Union collapsed, leaving America as the only superpower, the only way to go was down. Any disengagement or retrenchment from America's far-flung commitments everywhere on earth is viewed by hawks as appeasement and retreat.

Let's remember that in the 2004-2005 time frame, then VP Cheney gave a talk to the American Enterprise Institute in which he said that from now on, American military power would keep the peace in the world. Everybody in the audience stood up and cheered.

Tom Cotton clearly wants to bomb Iran. He has concluded (and he may be right) that there's no point in negotiating with a regime like that.

This letter was his clumsy attempt to appear "reasonable."

When what he really wanted to say was, "Let's kick some Iranian butt!"

Sebastian said...

"The form was great at getting attention, possibly too much attention. And speaking of attention, I don't think the letter is too well-written."

As a political act, it produced a desirable result, as long as hawkish Dems don't bolt on future legislative action, which is more important than the letter itself. I agree the letter is not well-written. Those Harvard grads these days.

"Makes it easier for Obama to get a better deal."

As if. The object is to settle on the most suitable terms of capitulation, to weaken the U.S. while preserving some half-way plausible deniabiity. Hence the outrage at Cotton, who is trying to deny them deniability.

Brando said...

"OK, you would over-rule Wickard."

In his defense, Wickard was a terrible decision. I'd rank it up there with Plessy and Korematsu.

Simon said...

tim in vermont said...
"That's just more hair splitting. Another distinction without a difference, and an assault upon the free speech rights of Americans."

The Logan Act is an assault on the free speech of Americans; indeed, as I noted the other day the act is probably unenforceable. That's why my first comment above began: "Were the Logan Act actually enforceable (dubitante)."

Hagar said...

I think Simon has found at least one grain of truth in that surely a part of Obama's strategy is to make the United States' international reputation so bad that no one will trust us on any issue.
It is, however, difficult to see how having no friends at all is going to be good for the country.

traditionalguy said...

Every sentient being in the middle east knows what the letter means. That's why Obama's gang is furious.

This open communication was sent to reveal America's sneaky surrender negotiations over the last two years meant soley to put into place the final piece for surrounding Israel to a superior Arab armed force that will then expel Jews from a certain City in Palestine.

Egypt knows that first hand. Libya knows that first hand. Iraq Knows that first hand. Jordan knows that up close.

It is about returning to the 1949 Truce lines that stopped the fighting of the six defeated Arab Armies that had invaded Harry Truman/UN's Israeli State on day one.

From that old truce line Israel is dead meat unless Obama gloriously leads a UN Army into the target City and removes the Jews from Jerusalem.

The methods we are seeing used on Israel are identical to Spain's Ferdinand and Isabella who ordered torture, murder and expropriation of wealth from the Jews of Spain in the 1400s, sometimes called the Inquisition. The Pope could not stop it although he accepted massive bribes from Jews to order it stopped, but then revoked the orders and joined the Spanish in celebrations of the exterminations.



.

Matthew Sablan said...

" A joint resolution would have effectively gone on record as opposing the deal, while still not appearing to insult the president and undermine him in his negotiations."

-- How is a formal action less of an insult than an informal one?

How does it undermine his negotiations? It is not like anyone didn't know that Congress disapproved of where the negotiations were going; it has been common knowledge people wanted a harder line taken.

The only reason the letter got any notice is that the media was out of hate targets for the day.

Anonymous said...

If the Logan Act isn't enforceable against Jimmy Carter then it isn't enforceable against anyone.

Brando said...

"-- How is a formal action less of an insult than an informal one?"

It's all in the form rather than substance--in both cases, Congress is expressing its disapproval of the deal, but in the letter it appears to go around the president to address Iran's government, while the resolution is Congress's (public) statement on the record, arguably addressed to the president and American people.

It's like why the Dixie Chicks making their anti-Bush statement in Britain was more insulting than if they did it back in Texas--it has a whiff of "airing family business outside the family". Obviously Iran would know about the resolution, just as the British fans would have known about the Dixie Chicks' comments in Texas (if they cared).

Hagar said...

Think about it. Would you go out to deliberately make yourself known as an untrustworthy person, just to be known as an untrustworthy person?

tim in vermont said...

If your position is that any international agreement is a treaty

Now there is an argument. The agreement you described can be revoked at will as well. Certainly can be revoked by the next Commander in Chief without anybody's by your leave.

Cotton's point is that the same is true of this agreement Obama is trying to conclude.

Lefty law professors who are trying to create a strong man president are the ones claiming it is binding. Treaties are binding until they are not too, but they encode a deeper agreement, on which the whole government has signed off.

Seeing Red said...

It's too bad we can't ask Chappaquiddick Ted any questions on his letter to the Soviets.

Simon said...

Brando said...
"In [Simon's] defense"

In my defense, Tim assumed that I was a Democrat, tried to hang me from my support of Wickard without knowing whether I actually support it, and now he's fuming because his premise fell apart. He made untenable assumptions and now he's trying to kick his way out by being petulant.

This is a perfect example of what I was saying the other day about the pathology that seems to be consuming the party lately. Anyone who doesn't just regurgitate the talking points, anyone who actually thinks or sticks with principles over immediate partisan expediency, well "OBVIOUSLY they're a Democrat, because if they weren't, they'd be a mindless partisan hack like me!" No wonder the movement is in shambles.

tim in vermont said...

We musn't insult the president, yet the president may insult Congress at will?

Why do so many lefties want to go back to having a king?

Imagine if somehow conservatives had managed to enforce these "no insultar el presedente" rules while Bush was in power?

machine said...

our world is on fire...we should continue making it as unstable as possible.


quite a plan

tim in vermont said...

and now he's fuming because his premise fell apart.

HA HA HA HA HA!

You need to do a little more introspection and a little less projection Simon.

tim in vermont said...

our world is on fire...we should continue making it as unstable as possible

Nukes for everybody! That's quite a plan too machine.

Simon said...

For the last couple of years, it's been as if you're not a conservative based on what you believe, you're a conservative based on how much you hate Barack Obama. It's the Levinification of the movement, and I want no part of it. O tempora, o mores; oh, for WFB to come back!

Shanna said...

Finally, this National Review headline popped up: "The Cotton Letter Was Not Sent Anywhere, Especially Not to Iran."

That's what I figured but it was weird that no one was mentioning it. It's really not different from an editorial, imo.

bbkingfish said...

Tom Cotton says they sent the letter.

damikesc said...

Simon, just as Wilson ignored the Senate on the founding of the League of Nations (and Clinton did the same with Kyoto), Obama is ignoring the Senate here. Reports indicate he is going to go through the UN to force acceptance and bypass the Senate which will never approve.

amie lalune said...

Ann, it was obvious by their reply that the Iranians DON'T understand our government. There was nothing wrong with putting them on notice that they may not be able to count on the stupidity of the American government forever.

Simon said...

Hagar said...
"It is, however, difficult to see how having no friends at all is going to be good for the country."

"The great rule of conduct for us in regard to foreign nations," said Washington,

"is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

"Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel.

"Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?

"It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them."

I will take old wisdom over new guesses any day.

Scott said...

One point that has been raised several times is that in the long run, it is impossible to stop Iran from getting a bomb. This assertion utterly misses the intention of Iran, which is not to build A bomb, but rather a bomb factory....a very different thing indeed. Getting a single bomb is not that difficult if one has the fissionable material which is a big if, but not an insurmountable problem, nor has it been for some time.

One bomb is a nasty terrorist threat, but ultimately something that can be ignored or at least deterred. Typically you hear this described in terms of 'yes, they can blow up NYC (or Tel Aviv or London, or etc.), but they would be exterminated in retaliation', which may or may not be true in the case of a single bomb, but would certainly NOT be the case if Iran had a factory capable of producing many bombs. The West might be willing to risk retaliation against an attack of Tel Aviv if they thought Iran had only one (or a very small number) of bombs, but they simply wouldn't risk it if they had say, 20, with the capacity to make more. This is the whole point behind Iran's efforts, it would give them the capacity to threaten their neighbors (reconstitute a Persian Empire?) with no real fear of interference by the West. A single bomb MIGHT serve that purpose, but against a determined Western leadership it would be a huge gamble. 20 bombs would make such aggression a far less risky proposition, and in fact might even render it unnecessary.

This is why you see the Saudis making noises about acquiring their own bombs (likely buying them outright from Pakistan) should Iran succeed in becoming a nuclear state. They cannot risk Iran as a regional hegemon or a hegemon-wannabe, and will clearly take steps to prevent it. It isn't hard to imagine other states in the region taking similar steps over time.

This is relevant to our discussion because if we assume that the real threat is a factory (really the infrastructure necessary to build bombs, and then deploy them with viable delivery systems, though the latter is considerably more problematic), we are not simply faced with the strawman choice of 'negotiation or occupation' but rather could in fact make credible threats that do not require destroying the Iranian regime. We could, for instance, identify key portions of that infrastructure and destroy them piecemeal, which while certainly a costly and perhaps undesirable choice in its own way is certainly not on the same level as an outright invasion. I suspect that the Israelis are already thinking along these lines, and they certainly have the capability of taking these steps should they choose to do so.

None of this would be easy, or particularly 'clean' in the sense that civilians would die and there would be some attempt at retaliation (perhaps?), but the consequences of allowing Iran to establish a factory would be far, far worse in the long run

traditionalguy said...

Cotton is guilty of being the boy who yelled out that The King had no clothes on.

He broke the mood that pretends unreality is real clothes.

Ann Althouse said...

"I think that making the Iranian negotiators understand that our Constitution does place checks and balances on what the President can and cannot do with respect to treaties is a good thing."

The letter didn't go into constitutional law in a convincing or impressive way. It's was on a "Schoolhouse Rock" level. No citations, no discussions of serious precedent or anything about the weakness of Congress and the passivity of the courts in this area.

Let's hear some talk about the time Barry Goldwater sued Jimmy Carter -- what a fizzle that was. Remember the Republic of China?

Simon said...

tim in vermont said...
"The agreement you described can be revoked at will as well. Certainly can be revoked by the next Commander in Chief without anybody's by your leave. Cotton's point is that the same is true of this agreement Obama is trying to conclude."

And that is correct. What is not correct is his assumption that a treaty is any different. The President must obtain the Senate's consent to appoint officers and to make treaties; he does not require the Senate's consent to fire officers or abrogate treaties, which is why, for example, President Bush did not seek the advice and consent of the Senate when he abrogated part of the Vienna Convention.



J. Farmer said...

@Scott:

"None of this would be easy, or particularly 'clean' in the sense that civilians would die and there would be some attempt at retaliation (perhaps?), but the consequences of allowing Iran to establish a factory would be far, far worse in the long run."

What is your evidence that establishing a bomb factory is Iran's goal?

Simon said...

Ann Althouse said...
"Let's hear some talk about the time Barry Goldwater sued Jimmy Carter -- what a fizzle that was. Remember the Republic of China?"

That's the problem, no one remembers anything any more. Nevermind the Carter administration, these people are so determined to stick it to Obama at any cost that they can't even remember what we said during the Bush administration! They don't remember that these imagined fetters on Presidential authority were the fever-dreams of Democrats; I mean, I stood shoulder-to-shoulder with some of these people and shot down these loony liberal arguments about how the President's power is all essentially ministerial, and now, I mean, for God's sake, doesn't anybody remember the whole fuss about the unitary executive and Humphrey's Executor, and how that was the question on which Senators wanted to grill John Roberts?

See, my mistake was in thinking that these people were, as I was, defending the principle. Turns out they were defending the result. Put a Democrat in the White House, and, contra Orin Kerr--all change!

It infuriates me how opportunistic, how unprincipled, and above all how dumb it all is.

lgv said...

"The letter didn't go into constitutional law in a convincing or impressive way. It's was on a "Schoolhouse Rock" level. "

It didn't really need to in order to make the point. Nor did it have to be sent in order to be delivered. I think its purpose was to let the American public know how bad a deal we are currently pursuing. My initial response was that the letter was a big pile of nothing. But the conversation has been more about the meaningless Logan Act than about the awful deal being negotiated.

Big Mike said...

The letter didn't go into constitutional law in a convincing or impressive way. It's was on a "Schoolhouse Rock" level. No citations, no discussions of serious precedent or anything about the weakness of Congress and the passivity of the courts in this area.

@Althouse, the senators were writing an open letter targeted at American citizens as much as foreign nationals. They were not trying to ace a Con Law class (with a particularly tough grader).

Brando said...

"For the last couple of years, it's been as if you're not a conservative based on what you believe, you're a conservative based on how much you hate Barack Obama."

That's what seems to be the driving force here--whether it's a hundredth symbolic vote to overturn Obamacare, or an open letter to an unfriendly government unsubtly suggesting they not bother negotiating with our president. There's a lot that can be said for or against certain reforms of the ACA, or for or against any deal with Iran to prevent them from getting nukes, but right now the GOP is in "primal scream" mode--prove how much you hate Obama, or you're a squishy RINO or a dupe who fell for hope and change.

What's next, the Senate taking a trip across town to pee on the White House lawn? Don't tell me that hasn't been contemplated in the caucus meetings.

Gabriel said...

Look, Congress is a co-equal branch and is explicitly involved by the Constitution in the treaty process.

The only thing that annoys me about this is that Democrats are accusing Republicans of lese-majeste, if not treason.

The Congressman one district over from me gave an anti-war speech to Saddam Hussein's fake parliament, at Saddam Hussein's expense, and he's a hero to Democrats. That's quite a bit above and beyond an open letter on the Schoolhouse Rock level.

Simon said...

damikesc said...
"Simon, just as Wilson ignored the Senate on the founding of the League of Nations--"

Wilson didn't ignore the Senate on the League of Nations. He negotiated a treaty, he submitted it to the Senate, the Senate famously rejected it, and the United States, no less famously, never joined the League of Nations.

"Obama is ignoring the Senate here. Reports indicate he is going to go through the UN to force acceptance and bypass the Senate which will never approve."

What does that even mean? He's going to "go through the UN" to "force acceptance"? Force acceptance from whom? How?

Simon said...

Brando said...
"[Simon said that for the last couple of years, it's been as if you're not a conservative based on what you believe, you're a conservative based on how much you hate Barack Obama." That's what seems to be the driving force here--whether it's a hundredth symbolic vote to overturn Obamacare, or an open letter to an unfriendly government unsubtly suggesting they not bother negotiating with our president ... [, it's] prove how much you hate Obama, or you're a squishy RINO or a dupe who fell for hope and change." Exactly. Well put. It drives me crackers. These are people who either never read A Man for All Seasons or missed the point:

"Roper: So now you'd give [Obama] benefit of [principles]!

"More: Yes. What would you do? Cut a great road through [our principles] to get after [him]?

"Roper: I'd cut down every [principle] in [conservatism] to do that!

"More: Oh? And when the last [principle] was down, and the Devil turned round on you — where would you hide, Roper, the [principles] all being flat? This [movement]'s planted thick with [principles] from coast to coast ... and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give [Obama] benefit of [principles], for my own safety's sake."

It's apparently quite easy to forget that for many years, one of the major concerns of conservatives was the dangerous emasculation of Presidential authority after Watergate, and men like Dick Cheney and movements like FedSoc worked very hard to rebuild that authority through the 1980s. When the Clinton administration accepted many of those claims, we counted that as a win. Not because we liked Clinton or what he proposed to do with that power, of course, but because the acceptance of that authority by Democrats meant that we had not simply armed a friendly President, but in fact had successfully returned that authority to the Presidency. (I said something about the prospect of the other Clinton winning back in 2007.) To be sure, none of us thought that the President was a king, and there was always the danger of overreach, as Bush demonstrated on occasion. But now people see executive overreach lurking behind every corner. (Witness the preposterous overreaction to the recent ATF reclassification, for example, in which the administration's exercise of authority expressly given to it by Congress was brought into the "overreach" and "tyranny" narratives.)

"What's next, the Senate taking a trip across town to pee on the White House lawn? Don't tell me that hasn't been contemplated in the caucus meetings."

Well, apparently, what's next for Ted Cruz is trying to keep Eric Holder in office as a way of protesting Obama's unilateralism on immigration. Fortunately, his colleagues aren't aboard.

tim in vermont said...

Let's hear some talk about the time Barry Goldwater sued Jimmy Carter - Althouse, whose name is "Although" right up until the end...

Oooh Oooh! Ms Kotterr! See upthread!


However, several Members of Congress went to court to contest the termination [of a treaty by the President], apparently the first time a judicial resolu[p.491]tion of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.367 While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.3

Sigh. Nobody likes me, everybody hates me, I'm gonna eat a worm....

damikesc said...

What does that even mean? He's going to "go through the UN" to "force acceptance"? Force acceptance from whom? How?

He's planning on going thru the UN to have his "treaty" accepted by the Security Council and, thus, enforceable as part of the UN treaty.

They will use it to lift UN sanctions and Obama will unilaterally "ease" (or remove, take your pick) US sanctions. Even if only the UN removes sanctions, then Iran is effectively free to do whatever they want.

This isn't exactly an unknown plan by the State Dept and Obama.

Saudi Arabia is about to go nuclear. This is what Obama's policies have led to. I don't see how this is an improvement.

Scott said...

J. Farmer -

If by 'evidence', do you mean documentary data or public declarations, I have none. Note that the Iranians deny ANY nuclear weapons ambitions, and have done so for some time.

With that said, there is very little reason for them to go to elaborate lengths (we are talking about a large number of nuclear facilities already identified, most of which the Iranians prohibit foreign inspectors from even visiting) to produce nuclear fuel at much higher levels of enrichment than would be needed for the sort of reactors that they are contemplating (if we are to believe their public statements), or for a single bomb. One doesn't spend billions of dollars building a vast infrastructure for a one-off project unless you are extremely rich or extremely stupid...I presume that the Iranians are neither of these.

If they are not building a bomb, they have little basis for the enormous number of centrifuges that they are building, and if they ARE building a bomb, they are taking a great deal of extra effort that makes very little sense for only a single (or very small number) of bombs.

khesanh0802 said...

Is Cotton supposed to remain silent just because he is in the Congress? He and all the others have a right to speak about this or any other topic. Since Obama appears anxious to give away the store it is good that someone with some leverage has gone on record as opposed.
Remember Cotton IS a lawyer - a Hahvad lawyer at that. Why wouldn't you expect mealy-mouthed "lawyerese"?

tim in vermont said...

"The Constitutions's just a God damned piece of paper!"

Right Barack?

The Drill SGT said...

they are taking a great deal of extra effort that makes very little sense for only a single (or very small number) of bombs.

The minimum number is at least 2.

One to demonstrate/test

One to then be ready to deliver when everybody goes "oh shit"

The worst case is if your first bomb fizzles. Then you are like Michael Corleone:

Sonny: Hey, listen, I want somebody good - and I mean very good - to plant that gun. I don't want my brother coming out of that toilet with just his dick in his hands, alright?
Clemenza: The gun'll be there.


Hagar said...

Iran is not making any bones about their long-range missile development.
Just exactly what do you think those missiles are intended to carry?

Brando said...

"Sonny: Hey, listen, I want somebody good - and I mean very good - to plant that gun. I don't want my brother coming out of that toilet with just his dick in his hands, alright?
Clemenza: The gun'll be there."

I like the idea that if the gun wasn't planted in the bathroom, Michael would have still come out with his dick in his hand, as if that would be better than just returning to his seat, finishing his meal, going home and asking Sonny why the hell the gun wasn't where it was supposed to be.

"Well no gun, but my trusty penis will surely do the job here..."

james conrad said...

This letter is what happens when a president goes out of his way to poke congress in the eye, you gotta expect a poke back. No one trusts Obama anymore, not congress nor the american people or even the arab states in the middle east. The notion that Obama is going to make a unilateral deal without congress over nukes with the leading state sponsor of terror, Iran, is a fantasy, not gonna happen. I think Obama is going to lose on this issue and his veto will be overidden by congress.

EMD said...

Since this blog features so much discussion of writing, I recommend to its readers an article that People magazine published about the grammar mistakes in the Fifty Shades novels.


Keep in mind none of that kept it from being a money-making machine.

tim in vermont said...

Keep in mind none of that kept it from being a money-making machine

It's almost as if the definition of literary quality is somehow lacking.... Naah!

Scott said...

The Drill Sgt -

While I entirely agree that the minimum number should be 2, one could argue that once you have tested a successful bomb, you really only need to be able to credibly CLAIM that you have a second (or third, or nth...) one, since after that, your threat is credible.

Interesting historical tidbit, apparently the Soviets did at least three unsuccessful tests before they announced their first successful test of an A-bomb. Along similar lines, the US had only one other nuke available after Nagasaki, so had the Japanese been willing to absorb much more in the way of nuclear bombardment, we would have been in a somewhat uncomfortable position...

Hagar said...

1945 was a long time ago.
Today, Iran is going to need a number of nuclear devices of varying design and mega-tonnage and fitted to a range of highly complex missiles in order to be "credible."
And that is what they are working on.

Which is a major reason Obama's 10-year deal is meaningless. It is going to take them that long to get ready anyway.

Simon said...

damikesc said...
"He's planning on going thru the UN to have his 'treaty' accepted by the Security Council and, thus, enforceable as part of the UN treaty. They will use it to lift UN sanctions and Obama will unilaterally 'ease' ... US sanctions.""

So his evil strategy to evade Congressional authority is to use something Congress has already authorized? I mean, goodness, we're back to the ATF thing, aren't we?

Let's take another hypothetical. Suppose the United States, Canada, France, Germany, and Russia negotiate a treaty: "Section 1, the contracting parties agree that they will revoke all existing sanctions against any contracting parties and not impose new sanctions against the same; Section 2, new contracting parties may be subjoined to the treaty with the approval of a majority of the existing contracting parties." And the Senate ratifies that, everyone agrees that it knocks out some existing sanctions against Russia, and the President stops enforcing those sanctions. I take it that you don't think that's executive overreach.

Now, the day after the Senate ratifies the treaty, Iran applies to be added as a cosignatory, and Russia, France, and Germany all give their approval. Now Iran is a contracting party to the treaty, and under obligations that we previously accepted by ratifying the treaty, our sanctions have to end. Is it executive overreach if the President stops enforcing sanctions against Iran? Conversely, is it executive overreach if the President says "look here, this isn't what we agreed to," and unilaterally withdraws the United States from the treaty?

jr565 said...

Simon wrote:
President's power is all essentially ministerial, and now, I mean, for God's sake, doesn't anybody remember the whole fuss about the unitary executive and Humphrey's Executor, and how that was the question on which Senators wanted to grill John Roberts?

The unitarys power is higher when at war. Are we at war with Iran?

wendybar said...

Blogger Tim said...
I will care what the Democrat Party thinks when they "protect and defend the Constitution of the United States against all enemies, foreign and domestic" as they have sworn to do.

3/17/15, 8:23 AM


Hear!! Hear!!! I agree 100%

Simon said...

jr565 said...
"The unitarys power is higher when at war. Are we at war with Iran?"

Okay, so first of all, the unitary executive is a doctrine that pertains to the President's authority to direct the executive branch. It is not (as I think your comment maybe implies) a doctrine about what the executive branch may do, either the President personally or through agents who are concededly subordinate to him. Cases like Youngstown ("May the President seize control of steel mills") are not about the unitary executive doctrine; it plays in cases such as Myers ("may the President fire officers?"), Humphrey's Executor ("are federal commissioners "officers" subject to firing by the President?"), Bowsher ("may Congress reserve the right to fire an officer?") or Morrison v. Olson ("can there be a special prosecutor not subject to Presidential control?").

With that clarification in mind, my question is, where do you get the principle that the unitary executive doctrine, correctly-undestood, applies with greater force during wartime, and what does that look like? So the President has total control of his surrogates in peacetime but he gets total-er control in wartime?

damikesc said...

So his evil strategy to evade Congressional authority is to use something Congress has already authorized?

Given that he isn't even planning on submitting his proposal to Congress to vote as is...I'm curious when Congress "authorized" this.

Now Iran is a contracting party to the treaty, and under obligations that we previously accepted by ratifying the treaty, our sanctions have to end. Is it executive overreach if the President stops enforcing sanctions against Iran? Conversely, is it executive overreach if the President says "look here, this isn't what we agreed to," and unilaterally withdraws the United States from the treaty?

The former. The President pulling out when the terms change are perfectly acceptable (such as Bush pulling out of arms control deals with the USSR on the idea that the USSR did not actually exist)

tim in vermont said...

If the world should discover that the US is a lawbreaker under "international law" when treaties are made without the consent of the Senate, then presumably it will be more difficult to get such agreements in the future.

We are not Tuvalu. Nations are not going to somehow be able to shun us because we didn't keep the word of a rogue president in clear contravention of our own constitution.

I just don't get where some of these idiotic arguments are coming from, except that people want to paint the 47 civics educators as "traitors."

n.n said...

The letter is directed to Obama. To inform him that another Libyan campaign (i.e. regime change, Benghazi) will not be tolerated. Also, that his effort to buy time for the Iranian hardliners, as he did in Egypt, Afghanistan, etc., will not go unchallenged.

Simon said...

damikesc said...
"Given that he isn't even planning on submitting his proposal to Congress to vote as is...I'm curious when Congress 'authorized' this."

I don't know off the top of my head what the UN treaty says, but if the UN Treaty says "if X, then Y," and Congress has ratified the UN Treaty, then, Congress has authorized Y in the event of X. What's the difficulty there? I would think that the better questions in such a situation


"The former."

No, neither. What's your justification for saying it's executive overreach for the President to adhere to the requirements of a treaty that the Senate not only ratified but ratified yesterday? I thought that your objection was that Obama wasn't getting Senate approval, but your response to the hypothetical suggests that that can't be your objection, because in the hypothetical you have Senate approval and yet you're still calling for the same result. How does that add up?

Anonymous said...

I absolutely love Tom Cotton for that letter and for his defense of said letter on all the talk shows this past weekend.

mccullough said...

The open letter format by its nature induces the writer either to condescend or patronize. Your writing skills must be plastic to pull off this type of letter.

Simon said...

I ought to add that my own view of the treaty power rests on the understanding that a treaty is an agreement by two nations to do something. It does not, by itself, do anything--that is, it is not self-executing, it does not have freestanding domestic force as legislation. Otherwise the President and the Senate could do an end-run around the House. Nor does it create a power to act that does not exist; the federal government may sign a treaty promising to reenact the provisions struck down in Bowsher, but, even if Congress passed an enacting statute and the President signed it, that statute would be no more Constitutional with the treaty having been ratified than it was without. (This was the question that the court ducked in Bond II (and the Reid v. Covert plurality answered years ago.) Otherwise the federal government could do an end-run around Article V.

Where this gets more complicated is my hypothetical. Treaties are still the law of the land, and so my own view is that a President who had enacted sanctions of his own authority would be obliged to rescind them. But whether the President would have authority to not enforce sanctions imposed by federal statute is a much more difficult question, and one to which I do not have an answer.

damikesc said...

I don't know off the top of my head what the UN treaty says, but if the UN Treaty says "if X, then Y," and Congress has ratified the UN Treaty, then, Congress has authorized Y in the event of X. What's the difficulty there? I would think that the better questions in such a situation

If the UN says "Guns are illegal", then we are under no obligation to abide by their asinine decisions.

The United Nations is not a suicide pact. It's barely a marriage of convenience.

When your agreement terms are changed materially, then you aren't obligated to continue to abide by it.

No, neither. What's your justification for saying it's executive overreach for the President to adhere to the requirements of a treaty that the Senate not only ratified but ratified yesterday?

He's not doing so and I don't buy into Senate deciding to ignore a treaty the day after it was passed.

There is a line between plausible hypothetical and fantastic hypotheticals. I don't do fantastic hypotheticals.

I thought that your objection was that Obama wasn't getting Senate approval, but your response to the hypothetical suggests that that can't be your objection, because in the hypothetical you have Senate approval and yet you're still calling for the same result. How does that add up?

Again, if the agreement has changed in a material fashion, you're not obligated to abide by it.

If the UN said "Slavery is now permitted", we wouldn't OBLIGATED to abide by it.

Keep in mind we should've left the UN decades ago as is.

Fred Drinkwater said...

In Simon's "executive agreement" hypo above, he tosses off this bit:
"we're going to paint your [Ukrainian] flag on the [USAF AWACS] planes, and we're going to put your [Ukrainian] flag on the [USAF officers'] flightsuits"
Now I have to run to the store to buy replacements for all my trashed mental circuit breakers. I'm going to send him a bill.

Simon said...

Fred, it was just a choice to have a hypothetical with a sheen of plausibility; my own view is that we are on the wrong side of the Russia-Ukraine conflict and I would vigorously oppose any such Executive Agreement. But that's immaterial here.

damikesc said...
"If the UN says "Guns are illegal", then we are under no obligation to abide by their asinine decisions."

Right, but the reason for that is the one I gave in a separate comment above: Of the very nature of a treaty, it doesn't have direct domestic effect and even if it did, of the very nature of our Constitution, no treaty may expand the power of the federal government. But if you have a treaty that obliges the parties to do something that they are able to do based on a trigger event, that treaty does oblige us to do the something if the trigger-event later takes place.

Take Article V of the Atlantic Treaty, for example: The United States ratified a treaty (wisely or not) in which we said that an armed attack on any signatory was an armed attack on all signatories. Not, mind you, that we would declare war on a country that invaded a signatory, which would require subsequent Congressional action, but that an attack on, say, Germany, would be considered an attack on the United States. If we fail to honor that treaty—this starts to segue into a response to the part of your reply that fights my hypothetical—we are in material breach, and we can't say "listen, we didn't breach anything, the treaty we ratified never covered Poland." The fact is that the treaty we signed and that the Senate ratified included a mechanism within it for bringing in additional signatories. You can't then plead that the treaty has changed.

And that's my reply to your attempt to fight the hypothetical. You complain that "[w]hen your agreement terms are changed materially, then you aren't obligated to continue to abide by it"; I'll stipulate that that's true (dubitante), but in my hypothetical, the terms of the agreement didn't change at all. An additional signatory was added by a mechanism that the Senate approved and accepted in its ratification of the original treaty, and don't tell me that that's not plausible because it is precisely what happened with the North Atlantic Treaty. When the Senate ratified the North Atlantic Treaty, it accepted the possibility that additional signatories could be subjoined after the fact pursuant to Article X of the Atlantic Treaty, not subject to the veto of the Senate, not subject to renegotiation, none of that. My hypothetical is different only insofar as it makes adding members conditional on a majority of signatories rather than unanimous consent, and if that's decisive for you, say so and I'll give you a hypothetical that you like even less that tracks the North Atlantic Treaty even more closely.

So stop fighting the hypothetical and answer it: What's your justification for saying it's executive overreach for the President to adhere to the requirements of the hypothetical treaty described above, which, in the hypo, the Senate has ratified?

Simon said...

(By the by, I completely agree that we ought to have left the UN, but that, too, is immaterial to the hypothetical.)

Michael K said...

"Iran will not only acquire a bomb more quickly than otherwise, but will use it against us or our allies. But I just don't see that being the case--if gradual normalization were conditioned on verification of no weapons program, how does than make them more likely to get and use the bomb than if we had no carrot to remove and had already used our sticks?"

I assume others will rebut this but the point is that Obama and the other five European countries are desperate to sign a deal with Iran. They because they want to trade with it and buy oil; Obama because he has convinced himself that this is his big chance at history.

It is but it will b a triumph on the order of Munich.

Once the sanctions are lifted, Iran will "break out" with a bomb and we will have nothing to say. It is North Korea and Clinton all over again.

Iran is a great and rising nation and, in principle, I understand this is a matter lf pride for them. The only reason any I am so worried is that the leadership is crazy. The US left has convinced itself, with no evidence but wishful thinking, that the new leader is "moderate."

Does anyone else recall when Reagan got snookered by another alleged "moderate Iran regime ?" The Democrats have convenient amnesia.

Kirk Parker said...

" Cotton ... always seems to be lecturing to a rather dull class. "

Well, is he wrong about that?

Simon said...

Michael, I think there's a serious argument that Obama is being influenced by his Iranian-born consigliere. That having been said, that argument has limits: I'm British-born, and I'm not in the business of encouraging America to adopt a British-friendly foreign policy, and we certainly know that many Cuban emigres don't favor a pro-Cuban policy, so I don't think that it's a safe assumption that to Jarret is pro-Iran, but it's a datum worth considering.

Michael The Magnificent said...

Meanwhile, Obama's minions are actively trying to sack Israel's PM.

But hey, illegally interfering in an allies election isn't as bad as writing a letter, right lefties?

Brando said...

"Michael, I think there's a serious argument that Obama is being influenced by his Iranian-born consigliere."

There's no question he is influenced by her, but her Iranian birth means less than meets the eye. I have a few Iranian-American friends, and if they controlled U.S. foreign policy it would be very harsh on Iran's current government. When your family has been chased out of their country, then found a better life in America and yet cannot even visit relatives who are still stuck in Iran, you're not likely to have warm feelings towards Khameini and his gang.

Brando said...

"Once the sanctions are lifted, Iran will "break out" with a bomb and we will have nothing to say. It is North Korea and Clinton all over again."

How does it follow that gradual lifting of sanctions--that does not include letting them buy, say, uranium--with verification requirements makes it easier for them to build bombs? Right now we have no verification, and no trade we can remove, so no leverage. It's not guaranteed that a wisely negotiated deal prevents them from building a bomb, but why are you so certain that continued isolation will do the trick? Other isolated countries weren't prevented from building bombs of their own.

"Iran is a great and rising nation and, in principle, I understand this is a matter lf pride for them. The only reason any I am so worried is that the leadership is crazy. The US left has convinced itself, with no evidence but wishful thinking, that the new leader is "moderate.""

Pride and deterrance, I'd suggest--they likely reason that if Saddam actually had nukes and the U.S. knew it, we never would have invaded. Being a nuclear power is also still a somewhat exclusive club. I agree that Iran is run by an evil and nasty regime, but why are you so certain that they are "crazy"? I'm not counting nasty statements from their leaders--there's a big difference between pandering to the masses and actually doing something that could risk destroying your regime.

It's still desirable to prevent them from getting a nuke, but I don't see even that as an automatic sign that they're going to use it on anyone.