When asked on Face The Nation if he would apologize for Senator Tom Cotton’s letter to the Islamic Republic of Iran, Secretary of State John Kerry replied:
“Not on your life. I’m not going to apologize for unconstitutional, un-thought out action by somebody who has been in the United States Senate for 60-some days. That’s just inappropriate. I will explain very clearly that congress does not have the right to change an executive agreement.”
In under fifty words, John Kerry made four very critical mistakes. He claimed that Senator Cotton’s letter to Iran was “unconstitutional” and “un-thought out,” he implied Senator Cotton was incredibly inexperienced, and he claimed that Congress doesn’t have the right to “change an executive agreement.” It’s time to put Lurch in his place.
Claim #1: Senator Cotton’s letter was unconstitutional.
Though Kerry never explained why Cotton’s letter is supposedly unconstitutional, it is assumed that the unconstitutionality to which Kerry is referring is the “sole organ” doctrine. According to Louis Fisher, a constitutional law specialist for the Library of Congress:
“The executive branch relies in part on the ‘sole organ’ doctrine to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints.”
This doctrine has a long and intricate history, which I won’t repeat here. However, I must sum it up in part in order that you may understand the concept properly.
According to Fisher, the doctrine originated out of a statement made by Congressman John Marshall in 1800. Fisher refers to writings by Edwin S. Corwin, in which Corwin says that the understanding of the meaning of sole organ “was simply the President’s role as instrument of communication with other governments.” Fisher mentions that this does not mean that the power held by the president in this regard cannot be checked by Congress.
After fourteen pages, Fisher concludes with a summary statement I think is quite tidy an explanation of the whole argument against the “sole organ” doctrine (all emphasis my own):
“Even if sovereignty had somehow passed intact from the British Crown to the national government, the U.S. Constitution allocates that Power both to Congress and the president. The president and the Senate share the Treaty power and the House of Representatives has discretion in deciding whether to appropriate funds to enforce treaties. The Constitution explicitly grants to Congress the power to lay and collect duties on foreign trade, [and] regulate commerce with other nations…[The Supreme] Court itself has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs.”
So, it is not unconstitutional that the Senate insinuate itself in foreign relations per the sole organ doctrine, it is simply understood to be the norm that they do not. An understood and even disputed norm does not make an action unconstitutional. Furthermore, simply saying the word “unconstitutional” doesn’t make an action unconstitutional.
There are others who are claiming that the 47 Senators who signed the letter are in violation of the Logan Act, but I won’t get into that because it’s absurd, and I’ve already written about it here.
Claim #2: Senator Cotton’s letter was un-thought out.
If I were John Kerry, I would pause before I ever uttered the phrase “un-thought out.” This is from the man who said “You know, education, if you make the most of it, you study hard, you do your homework and you make an effort to be smart, you can do well. If you don’t, you get stuck in Iraq.”
Moreover, Kerry has no idea what Tom Cotton was thinking when he wrote the open letter to Iran. As Senator Cotton is a graduate of Harvard Law school, and an Iraq war veteran, I’m guessing he knew what he was doing.
Claim #3: Senator Cotton is inexperienced because he’s only been a Senator for roughly 60 days.
Ouch. I’d like to note several things. As I mentioned above, Senator Tom Cotton is a Harvard Law School graduate, and an Iraq war veteran. However, there’s more. Prior to serving in the Senate, Cotton was a member of the House of Representatives for two years. That’s about 730 days, give or take vacation time.
From January of 2005 to September of 2009, Cotton was a member of the United States Army, during which time he was deployed in Iraq, and later Afghanistan (voluntarily returning to combat in 2008 after being assigned to a job at Arlington National Cemetery following his time in Iraq).
Additionally, during Cotton’s tenure in the House, he was a member of the Committee on Foreign Affairs, the Subcommittee on the Middle East and North Africa, and the Subcommittee on Terrorism, Nonproliferation and Trade.
So, once again, I would hesitate—were I John Kerry—before I claimed that Senator Cotton lacks experience regarding Middle East foreign affairs.
Claim #4: Congress does not have the right to change an executive agreement.
Here, Kerry is being misleading. Just prior to his interview, he told the Senate Foreign Relations Committee:
“We’ve been clear from the beginning we’re not negotiating a legally binding plan. We’re negotiating a plan that will have a capacity for enforcement.”
President Obama cannot negotiate a treaty with Iran because it would require Congressional approval. Instead, President Obama is trying to arrange an “executive agreement.” This way, he won’t need Congressional approval, as an executive agreement is more of an understanding between nations.
As Senator Cotton explained in his letter to the leaders of Iran:
“Anything not approved by Congress is a mere executive agreement…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. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”
Congress has power over monetary relations with foreign nations, as per article 1, section 8 of the Constitution, which says, in part:
“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…”
Given this, if any of President Obama’s executive agreement calls for the rolling back of monetary sanctions against Iran, once those sanctions are to be rolled back, it will need Congressional approval. So while Congress may not have the power to “change” an executive agreement as such, it can prohibit parts of them from taking place. Additionally, as was mentioned by Senator Cotton, any future President can revoke such an agreement.
Notes to Sec. Kerry:
– Don’t be such a doofus.
– Know your Constitution.