Law Professor: GOP’s Letter To Iran Explaining How Constitution Works Gets Constitution Wrong

Yesterday, a group of 47 Republican senators became an international embarrassment when they published a letter to Iran telling its leaders to ignore Obama. Today, they become a national one.

The group of Republicans had hoped that by sending a letter to Iran highlighting the way America’s “constitutional system” works, it would become clear to the Iranians that while the president has been working tirelessly with them on an historic nuclear deal, the Republican controlled Congress was planning on derailing any negotiations they could.

In a page oozing with condescension, they wrote in part:

While the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate… Anything not approved by Congress is a mere executive agreement.

However, despite the confident tone, it seems the lawmakers don’t really have a firm grasp on what their role in the treaty-process is exactly. According to a detailed analysis of the letter’s contents by a Harvard law professor named Jack Goldsmith, who teachers and writes about presidential power and international law, the members of Congress got huge portions of this wrong:

The letter states that “the Senate must ratify [a treaty] by a two-thirds vote.”  But as the Senate’s own web page makes clear: “The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification” (my emphasis).  Or, as this outstanding  2001 CRS Report on the Senate’s role in treaty-making states (at 117):  “It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.”  Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane.  Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.

In other words, it’s a two-sided process that involves the president just as much as it involves Congress. The group probably wanted to de-emphasize the sharing of power with the Obama administration because: One, they hate Obama and petty insults are not beneath them. And two, they want to feel more important than they actually are.

As Goldsmith points out, the error in their letter is certainly technical, however that doesn’t mean it is any less embarrassing. The people who, one would think, have the best grasp on constitutional law, seem to have a few blindspots regarding their own limitations in it.

Making matters even more cringeworthy for the Republicans who had hoped this letter would be their shining moment of “screw you” politics to Obama: One of the letter’s chief architects, Sen. Tom Cotton actually graduated from Harvard Law. Apparently, he didn’t get his money’s worth – or at least slept through Goldsmith’s classes.

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