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catman
Joined: 18 Jul 2004
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 Posted: Tue Mar 10, 2015 2:22 pm Post subject: Iran, Obama and the Republicans |
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So last week the Republicans had a foreign leader come to Congress to undermine the President. Now, forty-seven Republican senators signed an open letter to Iran's leaders warning that a potential nuclear deal won't outlast Barack Obama's presidency, hinting that Congress does not intend to honor it. They want their war with Iran.
http://talkingpointsmemo.com/dc/republican-letter-iran-obama |
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W.T.Carl
Joined: 16 Jan 2003
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| Posted: Tue Mar 10, 2015 3:49 pm Post subject: |
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| Baloney! They just wanted to point out what Article II Section 2 of the US Constitution says. If Obama signs it and the Senate doesn't approve it, it doesn't mean crap. Obama can wipe his butt with it, for all it's worth. |
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Plain Meaning
Joined: 18 Oct 2014
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| Posted: Tue Mar 10, 2015 5:02 pm Post subject: |
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| W.T.Carl wrote: |
| Baloney! They just wanted to point out what Article II Section 2 of the US Constitution says. If Obama signs it and the Senate doesn't approve it, it doesn't mean crap. Obama can wipe his butt with it, for all it's worth. |
W.T.Carl's statement is already more precise and accurate than Tom Cotton's (R-AK) letter.
http://www.lawfareblog.com/2015/03/the-error-in-the-senators-letter-to-the-leaders-of-iran/
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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. As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”
This is a technical point that does not detract from the letter’s message that any administration deal with Iran might not last beyond this presidency. (I analyzed this point here last year.) But in a letter purporting to teach a constitutional lesson, the error is embarrassing. |
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W.T.Carl
Joined: 16 Jan 2003
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| Posted: Tue Mar 10, 2015 5:13 pm Post subject: |
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| It IS THAT SIMPLE! |
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Leon
Joined: 31 May 2010
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| Posted: Tue Mar 10, 2015 5:35 pm Post subject: |
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| W.T.Carl wrote: |
| Baloney! They just wanted to point out what Article II Section 2 of the US Constitution says. If Obama signs it and the Senate doesn't approve it, it doesn't mean crap. Obama can wipe his butt with it, for all it's worth. |
This is actually very wrong. Something does not need to be a treaty to carry weight in international relations, and something does not even need to be a treaty to become part of international law. There are many agreements that are not treaty based that have been effective and a state can accrue legal responsibilities through international law in a variety of ways.
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The banalities begin with the greeting: “An Open Letter to the Leaders of the Islamic Republic of Iran.” By custom, a serious letter to foreign leaders would address them by name. Who is it that the senators are seeking to influence: the supreme leader, the Parliament, the Revolutionary Guards? Clearly none of the above, otherwise it wouldn’t be an open letter. Nor, if this were a serious attempt of some sort, would Majority Leader Mitch McConnell (who was among the missive’s signatories) leave the task of organizing it to the likes of Arkansas Sen. Tom Cotton, an otherwise unknown freshman. As usual, the Republicans’ goal is simple: to embarrass and undermine President Barack Obama.
The idiocies begin with the first sentence: “It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system.”
First, I’m curious: How has this come to their attention? Second, the letter writers reveal that they don’t understand our constitutional system either. They point out to the Iranians, in the tone of a teacher addressing third-graders, that treaties must be ratified by two-thirds of the Senate, agreements need majority approval by both houses of Congress, and executive agreements can be overturned by Obama’s successor “with the stroke of a pen.”
Reading this, one can only wonder if these Republicans ever consult their staffs. As the Iranian leaders know, and as the Obama administration and the other P5+1 governments have made clear all along, the deal being negotiated is not a treaty, nor is it an agreement. Rather, it is a nonbinding international arrangement, to be signed (if it is signed) by the United States, the United Kingdom, France, China, Russia, Germany, and Iran. |
http://www.slate.com/articles/news_and_politics/war_stories/2015/03/sen_tom_cotton_s_letter_to_iran_is_plainly_stupid_the_arkansas_freshman.html
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Plain Meaning
Joined: 18 Oct 2014
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| Posted: Tue Mar 10, 2015 6:21 pm Post subject: |
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| Leon wrote: |
| W.T.Carl wrote: |
| Baloney! They just wanted to point out what Article II Section 2 of the US Constitution says. If Obama signs it and the Senate doesn't approve it, it doesn't mean crap. Obama can wipe his butt with it, for all it's worth. |
This is actually very wrong. Something does not need to be a treaty to carry weight in international relations, and something does not even need to be a treaty to become part of international law. There are many agreements that are not treaty based that have been effective and a state can accrue legal responsibilities through international law in a variety of ways. |
Did you catch Iran's Foreign Minister's response to Tom Cotton's letter? He said much the same thing.
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I should bring one important point to the attention of the authors and that is, the world is not the United States, and the conduct of inter-state relations is governed by international law, and not by US domestic law. The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.
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I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law. |
There's an interesting collision here between the binding effect of international law and the checks and balances within the United States Constitution. And what is fascinating is that int'l law firmly plants itself on one side of the question. It undermines the Constitution's checks and balances and sides, almost entirely, with the prerogative of the Constitution's monarchical aspect, the Executive.
Last edited by Plain Meaning on Tue Mar 10, 2015 6:26 pm; edited 1 time in total |
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Leon
Joined: 31 May 2010
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| Posted: Tue Mar 10, 2015 6:26 pm Post subject: |
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| Plain Meaning wrote: |
| Leon wrote: |
| W.T.Carl wrote: |
| Baloney! They just wanted to point out what Article II Section 2 of the US Constitution says. If Obama signs it and the Senate doesn't approve it, it doesn't mean crap. Obama can wipe his butt with it, for all it's worth. |
This is actually very wrong. Something does not need to be a treaty to carry weight in international relations, and something does not even need to be a treaty to become part of international law. There are many agreements that are not treaty based that have been effective and a state can accrue legal responsibilities through international law in a variety of ways. |
Did you catch Iran's Foreign Minister's response to Tom Cotton's letter? He said much the same thing.
| Quote: |
I should bring one important point to the attention of the authors and that is, the world is not the United States, and the conduct of inter-state relations is governed by international law, and not by US domestic law. The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.
...
I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law. |
There's an interesting collision here between the binding effect of international law and the checks and balances within the United States Constitution. And what is fascinating that int'l law firmly plants itself on one side of the question. It undermines the Constitution's checks and balances and sides, almost entirely, with the prerogative of the Constitution's monarchical aspect, the Executive. |
Yes, because international law is international, so it does not need to conform to any one countries internal laws. Theoretically states domestic laws need to conform to international law, but that is whole other issue. (I have taken international law classes and I get to use the knowledge so infrequently so if people really want to get into the details I can dig up my law textbook...) |
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Plain Meaning
Joined: 18 Oct 2014
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| Posted: Tue Mar 10, 2015 6:40 pm Post subject: |
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That's my understanding of it, as well. I am no specialist, having only taken a perspectives course in law school. Foreign Minister Zarif sounds as if he has the right of it (he did finish his graduate studies at the University of Denver).
Nonetheless, you will notice that the United States system is dysfunctional in this arena. One of the downsides of the Presidential (as opposed to the Parliamentary) Republic continues to be the rarely resolved conflict between an Executive of one party and the Legislature dominated by the opposite party.
http://www.vox.com/2015/3/2/8120063/american-democracy-doomed
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Since both the president and the Congress are directly elected by the people, they can both claim to speak for the people. When they have a serious disagreement, according to Linz, "there is no democratic principle on the basis of which it can be resolved." The constitution offers no help in these cases, he wrote: "the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate."
In a parliamentary system, deadlocks get resolved. A prime minister who lacks the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. It can get a little messy for a period of weeks, but there's simply no possibility of a years-long spell in which the legislative and executive branches glare at each other unproductively.
But within a presidential system, gridlock leads to a constitutional trainwreck with no resolution. The United States's recent government shutdowns and executive action on immigration are small examples of the kind of dynamic that's led to coups and putsches abroad. |
And yet, America does not experience coups or putsches.
http://www.vox.com/2015/3/3/8120965/american-government-problems
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Any president worth his salt is going to want to make major revisions to statutes and to alter the fiscal status quo. They're going to want to raise taxes on the rich and increase transfer programs, or slash taxes across the board while restructuring entitlement programs, or rewrite No Child Left Behind and make Medicare more cost-effective, and so on. Their legacy as more than placeholders depends on leaving some kind of legislative mark.
So they're going to gradually start using executive powers to adjust policy in those domains. President Obama has been very open about this. He couldn't get the Waxman-Markey cap and trade bill through the Senate, so he had the EPA impose carbon emissions regulations instead. He couldn't pass the DREAM Act, so he used executive authority to protect DREAMers instead. He couldn't get Congress to adjust No Child Left Behind, so the Department of Education started using waivers to do that in effect.
Some of these actions are on firmer legal precedent than others (the EPA rules are entirely legitimate, the No Child Left Behind waivers are more questionable) but the pattern is unmistakable. President Bush, of course, pushed the limits of executive authority too. The NSA wiretapping program began with a secret executive order long before Congress formally authorized it, and Bush made prolific use of "signing statements" asserting he had, in the words of the New York Times, "the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."
My prediction is that this process will continue apace until the presidency's powers are so immense as to be no longer recognizable. Norms that render dramatic actions impossible today will erode. Right now, it'd cause an uproar if a Republican president issued a blanket pardon for tax offenders who paid only what they'd owe if his tax plan had taken effect. But as changing tax policy through Congress becomes harder, that norm will weaken and an executive action like that will become plausible.
Courts can try to block these actions, but an increasingly partisan judiciary could serve to defend presidents against that. Barring that, simply ignoring court rulings (as the Bush administration did when the Supreme Court ruled it had to regulate greenhouse gases) could become more common.
There are limits to how far this can go, of course. It's hard to imagine an executive action creating a tax increase, or criminalizing a currently legal activity, or increasing spending levels. Even there, though, the president's increased powers will in turn increase his leverage with Congress and make it easier for him to demand the few legislative changes he can't effect on his own. Think of how easily the presidency steamrolls Congress on most foreign policy matters, a domain where it already has near-dictatorial powers. Congress's maximum influence is piddling, so it has little reason to assert itself.
This won't be a fast process. But if I had to guess, I'd say that the Congress of 2050 will largely serve to ratify policy decisions the president made unilaterally. |
International law also comes down in favor of the President. And int'l law here acts progressively: to keep one President to the word and commitment made by a previous President, and also to restrain the President from violating the universal and fundamental rights of Americans and non-Americans alike.
Maybe history will look back on Tom Cotton's letter as a moment like the Magna Carta, except in reverse and turned on its head ...
... Nah, I am just kidding. Tom Cotton and the Republicans are behaving like total baffoons. |
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bucheon bum
Joined: 16 Jan 2003
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| Posted: Tue Mar 10, 2015 7:39 pm Post subject: |
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| Plain Meaning wrote: |
Foreign Minister Zarif sounds as if he has the right of it (he did finish his graduate studies at the University of Denver).
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Hmm, did his studies overlap with Condoleezza Rice? That would be kinda funny if they did.
And Tom Cotton is proof that having a degree from harvard doesn't mean squat. |
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W.T.Carl
Joined: 16 Jan 2003
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| Posted: Tue Mar 10, 2015 8:01 pm Post subject: |
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| Article II section 2 US Constitution. The Constitution of the United States of America trumps any international law unless it is ratified by the Senate. |
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actionjackson
Joined: 30 Dec 2007
Location: Any place I'm at
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| Posted: Tue Mar 10, 2015 8:47 pm Post subject: |
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Couldn't it be said they they broke the law, a little law known as the Logan Act?
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| Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both. |
http://en.wikipedia.org/wiki/Logan_Act |
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W.T.Carl
Joined: 16 Jan 2003
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| Posted: Wed Mar 11, 2015 9:15 am Post subject: |
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| Senators ( and members of the House ) are part of the authority of the United States. Ever hear the term 'THREE COEQUAL BRANCHES OF GOVERNMENT'? Nice try................ you might want Obama to proclaim himself dictator and rule by decree, but that ain't gonna happen. He might want to, and if he tries..............well, it could get interesting. |
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northway
Joined: 05 Jul 2010
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| Posted: Wed Mar 11, 2015 9:27 am Post subject: |
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| W.T.Carl wrote: |
| Senators ( and members of the House ) are part of the authority of the United States. Ever hear the term 'THREE COEQUAL BRANCHES OF GOVERNMENT'? Nice try................ you might want Obama to proclaim himself dictator and rule by decree, but that ain't gonna happen. He might want to, and if he tries..............well, it could get interesting. |
Using this argument, the Supreme Court should be negotiating treaties too. |
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W.T.Carl
Joined: 16 Jan 2003
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| Posted: Wed Mar 11, 2015 9:38 am Post subject: |
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| There is no 'advise and consent' provision in any article of the Constitution involving the Federal Courts. There is one for the Senate. Article II Section 2 is very clear on this. |
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Leon
Joined: 31 May 2010
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| Posted: Wed Mar 11, 2015 5:39 pm Post subject: |
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| W.T.Carl wrote: |
| Senators ( and members of the House ) are part of the authority of the United States. Ever hear the term 'THREE COEQUAL BRANCHES OF GOVERNMENT'? Nice try................ you might want Obama to proclaim himself dictator and rule by decree, but that ain't gonna happen. He might want to, and if he tries..............well, it could get interesting. |
Again, you are actually wrong. All states take on obligations under international law regardless of domestic law, really otherwise it wouldn't be international.
CRS is pretty much authoritative, and explains it well.
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This report provides an introduction to the roles that international law and agreements play in the
United States. International law is derived from two primary sources—international agreements
and customary practice. Under the U.S. legal system, international agreements can be entered into
by means of a treaty or an executive agreement. The Constitution allocates primary responsibility
for entering into such agreements to the executive branch, but Congress also plays an essential
role. First, in order for a treaty (but not an executive agreement) to become binding upon the
United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds
majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many
treaties and executive agreements are not self-executing, meaning that implementing legislation is
required to provide U.S. bodies with the domestic legal authority necessary to enforce and
comply with an international agreement’s provisions.
The status of an international agreement within the United States depends on a variety of factors.
Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and
inferior to the Constitution. Depending upon the nature of executive agreements, they may or may
not have a status equal to federal statute. In any case, self-executing executive agreements have a
status that is superior to U.S. state law and inferior to the Constitution. Treaties or executive
agreements that are not self-executing generally have been understood by the courts to have
limited status domestically; rather, the legislation or regulations implementing these agreements
are controlling. |
Obama can make a binding agreement with Iran and it would not require the Congress to ratify it as a treaty. The executive branch controls most of the foreign policy powers, so unless congress passed separate legislation expressly challenging the agreement that is veto proof then there is little they can do, at least based on how I understand the Iran negotiations are unfolding. |
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