Reader Rob Graham asked, on Twitter, the following question:
@thejohnrobson as an historian, does Obama’s Iran agreement require ratification by Senate under Treaty article?
I didn’t think my answer would fit inside 140 characters, so instead I wrote this:
The United States Constitution (Article II Section 2) empowers the president “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur”. But it was envisioned that treaties would be comparatively rare and deal with major matters. As the United States became more deeply enmeshed in global affairs after World War II, it became increasingly common for the president to conclude not “treaties” but “executive agreements”, on matters great and small, in enormous numbers, that were not put before the Senate and came into effect anyway.
The courts have generally accepted these agreements with the requirement that there be some evidence of Congressional acquiescence. And in any case almost any significant agreement will at some point require enabling legislation, including funding to execute its provisions. So Congress can block things it really dislikes. Thus sensible presidents seek Congressional approval before major initiatives whatever they are formally called, knowing the American legislature still does wield the power of the purse, including LBJ’s infamous Gulf of Tonkin Resolution before committing major ground forces to the never formally declared war in Vietnam.
The problem is that by signing an agreement and announcing it the President can commit the prestige of the nation in ways that tends to trap Congress. The same is true of the war-making power, as dissident Congressmen noted in the runup to the Mexican-American war when President Tyler promised Texas military protection while the treaty of annexation was before the Senate in 1844, and then President Polk sent troops to occupy disputed territory in 1846. It is because of this capacity that parties that do not occupy the White House tend to be very critical of excessive executive discretion in foreign affairs, and those that occupy it tend to be enthusiastic about it. Joe Biden, for instance, was scathing on a proposed strategic arms reduction deal with Russia by executive agreement. But back then he was a Democratic Senator facing a Republican President. When a group of Senators sent a letter to Iran warning it that the Senate would have to approve any deal on Teheran’s nuclear program, the same Biden warned that “Around the world, America’s influence depends on its ability to honor its commitments,” and so “as the authors of this letter must know, the vast majority of our international commitments take effect without congressional approval.”
In the case of the Iranian deal, there is the added complication that once President Obama agrees to it, other nations will start carrying out its provisions regardless of what Congress tries to do in the coming months, and he has broad legislative authority to waive various sanctions. So he has really presented the Senate, and the House with a fait accompli. And promised, I might note, to veto any legislation from Congress seeking to block the agreement; he seems much keener to make nice with foreign despots than with elected American Congresspersons.