A War of Obama’s Making

Scott wrote this morning about the letter to Iran’s leaders that was written by Senator Tom Cotton and signed by 47 Senate Republicans. The letter warns Iran that President Obama has no constitutional authority to bind the United States government beyond his term in office. If any agreement is submitted to the Senate and approved as a treaty, then it will have the force of law, but that is not the president’s expressed intent.

President Obama’s reaction to the letter was as intemperate as one would have expected:

“I think it’s somewhat ironic to see some members of Congress wanting to make common cause with the hardliners in Iran,” Obama said a few hours after the letter was made public. “It’s an unusual coalition.”

Let’s see: Iran’s hard-liners are determined to acquire nuclear weapons and ICBMs. Senate Republicans don’t want Iran to have nuclear weapons and ICBMs. That’s “common cause,” a “coalition”? The president is delusional.

Byron York looks sorrowfully at the icy relations between Congress and President Obama in “A War of Obama’s Making.” Byron finds the current hostility to be regrettable, but Obama’s fault:

The White House and some Democrats are livid over congressional Republican attempts to circumvent President Obama’s authority to make a nuclear arms deal with Iran. They have a right to be angry — but not to be surprised.

There’s a war going on between the executive and legislative branches in which Obama has shown contempt for Congress’ constitutional powers, and now, in response, Congress is showing contempt for the president’s constitutional powers. It’s an unfortunate situation, but it’s what Obama has wrought.

I agree with Byron’s assessment that President Obama bears responsibility for the current “war,” but I do not agree with his assessment of Congress’s role. Are Congressional Republicans trying to “circumvent President Obama’s authority to make a nuclear arms deal”? No. Rather, they are correctly describing its limits. Obama has the constitutional authority to make a “deal,” but not, without Senate ratification, a treaty. Further, to the extent that the agreement being negotiated purports to have a ten-year term, it is a nullity; or will become one, anyway, the moment it is renounced by a future president. Senator Cotton and his colleagues are entirely right in their description of the constitutional landscape; therefore, I do not think it is correct to say that they are “showing contempt for the president’s constitutional powers.”

Similarly, Byron writes that “[i]t is not good to undermine the president’s authority to conduct foreign policy.” But is that what the Republican senators are doing? Under the Constitution, the president does have broad responsibility for foreign policy during his term in office. He is “commander in chief of the Army and Navy of the United States,” “he shall appoint ambassadors, other public ministers and consuls,” and–this is the significant language–he “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

But President Obama isn’t exercising the treaty power, he is negotiating a “deal” which he intends to present as a fait accompli, with no Senate ratification. The Constitution confers no such power on him. He can, of course, enter into an understanding with a foreign leader, but no such agreement, lacking the status of a treaty, can bind his successor. Thus, I don’t think it is fair to say that the Senate Republicans are “undermin[ing] the president’s authority to conduct foreign policy.” They are simply pointing out the constitutional limits on that authority.

I agree with Byron that the current battle between Obama and Congress is a war of Obama’s making. But I would add that in the conflict of the moment, over Senator Cotton’s letter to the Iranians, the Senate is in the right, and Obama is in the wrong.

UPDATE: More here.