Upon what meat doth this our Caesar feed,

That he is grown so great?

Shakespeare[1]

[There’s been a lot of water under the bridge since our last blog. Israel’s Prime Minister came here, gave a speech to our Congress, and the Republicans whooped and hollered at all the right places. He, like they, pretty much didn’t want the Obama Administration to make any deal with Iran on anything – especially involving nuclear weapons – without Israel’s approval. The enemy (Iran) of our enemy (ISIS) is still our enemy, and the U.S. should not negotiate with enemies, even if we have common interests. It’s better to fight instead. It reminds me of that old refrain – “Bomb, Bomb, Bomb Iran!”- that we heard back in 2007. If you need to see what I’m talking about, go to https://www.youtube.com/watch?v=o-zoPgv_nYg  Anyway, that’s when, if I remember correctly, Iran was supposed to be moments away from having a nuclear weapon.[2]

Then our illustrious Senate, or at least 47 Republicans in it, followed up with an “open letter” to Iran’s, senior leadership[3], advising that any agreement on nuclear weapons with the Obama Administration could be short-lived. To be effective treaties negotiated by President Obama had to be ratified by the U.S. Senate by a two-thirds vote. Lesser agreements, so-called Congressional Executive Agreements, required approval of both the House and the Senate. Regular Executive Agreements, unapproved by Congress, are effective, but – like Executive Orders – can be canceled at any time. Hint, hint: After we Republicans win the 2016 election, your agreement, if you make one, with President Obama may be the first thing to go.[4]

I was astonished. Article II, Section 2 of our Constitution[5] says the Senate must “advise and consent” to treaties made by the President.[6] But that’s the Senate, acting as an institution, and no treaty has been presented to it. The President is still in negotiations. More to the point, who does the U.S. Senate advise on these matters? The President, obviously. Should it also advise foreign governments? What would be the point of that? To confuse the other side with a babble of opinions? And what about individual senators? Can they meddle in ongoing negotiations between the President and other countries? Should they be encouraged to do so?

I have the questions but not the answers; so I asked Larry, our resident (albeit retired) legal expert for some help.]

Well, G, as they say on NPR, those are good questions. It seems that, once again, our Congress is testing the limits of its powers vis-à-vis the President. We had an episode like that back in the 1980’s, when Congress passed the so-called Gramm-Rudman-Hollings Act.[7] At that time the Act provided that if the projected budget deficit for any year exceeded specified targets, the Comptroller General would determine the amount of the excess, and “recommend” appropriate across-the-board budget cuts. The President had to follow those recommendations, by issuing a “sequestration order” that reduced funds to agencies and programs.

Could Congress do that? Was it infringing on the power of the Executive Branch? The matter went to the Supreme Court, and the Court said:

The dangers of congressional usurpation of Executive Branch functions have long been recognized. ‘[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches. ….’ Indeed, we also have observed only recently that ‘[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.’[8]

[Ah yes, the old “hydraulic pressure” metaphor. I guess if a hydraulic system is over-stressed, a pipe may break and all kinds of liquids might spurt out. Perhaps like brake fluid in an old car?]

That’s not a helpful comment. The Court found that the Comptroller General in fact worked for the Congress, and could only do things that Congress could do. Congress makes policy, etc., by passing laws. It doesn’t enforce or administer them. That’s the job of the Executive Branch. “[O]nce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation.[9]” It can’t give orders to the President except by legislating, and if Congress can’t, then neither can its agents, like the Comptroller General.

[OK, I understand that. If the Congress exceeds its authority, the courts may invalidate its laws. How does that principle translate into international relations and the actions of individual Congress-persons?]

Another good question, and this one implicates a different executive power. You see, the President has many powers; one of them is to execute [i.e., administer] the laws; another is to conduct the nation’s foreign policy. Indeed, there is a Constitutional doctrine out there to the effect that the President is “the sole organ of the nation in its external relations, and its sole representative with foreign nations.[10]

[Who said that, and when?]

John Marshall, the first Chief Justice of the Supreme Court, back in 1800; but he wasn’t on the Court at the time; he was a Member of Congress. Congress was considering whether it should impeach or censure President John Adams for turning over to England someone charged with murder. Adams did this pursuant to a treaty with England, but there was a case pending in an American court when he acted, and some lawmakers argued that the President had exceeded his authority, i.e., that he had undercut the court, thereby violating the doctrine of separation of powers. Marshall took the opposite view, arguing that the President had sole authority in foreign affairs.[11]

Some have said that Marshall’s defense of Adams went too far.[12] After all, President Adams merely complied with a negotiated and approved treaty, and that document, being the law of the land, gave him the authority to do what he did. Adams didn’t need sole authority over foreign affairs to take action.

Nevertheless, some 130 years later the Supreme Court, in United States v. Curtiss-Wright[13], took the broader view. That case involved an embargo imposed by President Franklin Roosevelt on arms sales to South America. The embargo was authorized by a joint resolution of the Congress, but was attacked on the theory that the resolution improperly delegated legislative authority to the President.

The Court avoided that conundrum by finding that, in foreign affairs the President had inherent authority to do what he did. “The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.[14]

If the President acts internationally, the situation is quite different. There he has also “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.[15]

[I must say, that’s a lot of language. The President has “plenary and exclusive power” as the “sole organ” of the United States in international affairs, but he has to act in accordance with the “applicable provisions” of our Constitution. Does that mean, for example, “follow the Bill of Rights?”]

I guess. But who knows what people in Government think these days?

[Let’s get back to our original question. Assume for the moment that the President really is the “sole organ” of the federal government for negotiating treaties, etc. What stops Senators, Representatives and their hangers-on from trying to negotiate “better” deals on our behalf? Are there any real restrictions on them, aside from the Constitution?]

Well, there’s a statute. It’s called the Logan Act, and it’s in Title 18 of the United States Code. It says:

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.[16]

[Good Heavens! That’s a criminal statute. And it authorizes up to 3 years in jail for violations! Do you think the 47 Senators who wrote Iran’s head Ayatollah (and others) knew about it?]

They should have. If they didn’t, they need to talk to their respective staffs. The statute’s been around since 1799.[17] You don’t get an Act like that unless there’s a consensus of some sort on the Hill, and there’s been plenty of time for the word to get out. Also plenty of opportunity to repeal it, which hasn’t happened. My guess is that John Marshall in 1800 also knew about it. If others will be prosecuted for interfering with foreign relations “without authority,” that certainly reinforces the notion that the President’s role is unique, i.e. that he’s the “sole organ” for such matters.

[Well, I know you don’t like to comment on actual or potential criminal investigations, but let’s speculate for a minute. Suppose the Administration decided to investigate 47 Senators to determine whether a crime had been committed. There would be an immediate blowback, of course; Republicans would say that the whole thing was political; Democrats might call for blood; and a good part of the chattering class would take sides. The public would be astonished. So what’s the likelihood of any real investigation?]

I don’t know. But if the Attorney General wants to look into the matter, he [or she] ought to consider appointing a special prosecutor to do the job. I’m not familiar with how that might be done these days; but the advantage of doing it is that a special prosecutor is more insulated from day-to-day political pressures from the Right or the Left. Anyway, I hope that would be the case.

[Nevertheless, it would be quite a show. And who knows?  We might even learn what meat today’s Senators feed upon.]

I agree.

 

 

[1] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at p. 696, William Shakespeare, n. 10. The quote is from Julius Caesar, Act 1, Scene 2. Henceforth this Dictionary will be cited as ODQ at __.

[2] See, e.g., Los Angeles Times, Muravchik, Bomb Iran (November 19. 2006), available at http://www.latimes.com/news/la-op-muravchik19nov19-story.html#page=1

[3] See U.S. Senate, An Open Letter to the Leaders of the Islamic Republic of Iran (March 9, 2015), available from many sources, including http://www.franken.senate.gov/files/documents/150309IranLetter.pdf We’ll cite this as The Letter of the 47 at __.

[4] See The Letter of the 47 at par. 4: “…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 agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

[5] If you want to examine the Constitution, and its Amendments, check out the National Archives for authoritative versions. Go to: http://www.archives.gov/exhibits/charters/constitution.html

[6] Article II of the Constitution defines the powers and duties of the Executive Branch. Section 2 says, in part: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

[7] The current version of the statute is at 2 U.S.C. §901, et. seq. The case is Bowsher v. Synar, 478 U.S. 714 (1986). You can find an online copy of the decision at https://www.law.cornell.edu/supremecourt/text/478/714

[8] Id. at 727.

[9] Id. at 733, 734. See also Id. at 737 (Stevens, concurring opinion).

[10] See John Marshall, Writings (LOA 2010) at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). Actually, there’s more and it’s all interesting. Hereafter this will be cited as Marshall, Writings at __.

[11] See Marshall, Writings at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made on him. … He possesses the whole executive power. He holds and directs the force of the nation. Of consequence any act to be performed by the force of a nation, is to be performed by him.”

[12] See, e.g., Library of Congress, Fisher, The Law: Presidential Inherent Power: The “Sole Organ” Doctrine (Presidential Studies Quarterly 37, no. 1) (March 2007)

[13] 299 U.S. 304, 319 (1936). If you don’t want to go to your local law library, you can find an online version of the decision at https://supreme.justia.com/cases/federal/us/299/304/case.html

[14] See 299 U.S. 304, 315-316.

[15] See 299 U.S. 304, 319-320.

[16] See 18 U.S.C. §953, Private Correspondence with foreign governments.

[17] You can find the original version in the U.S. Statutes at Large, the official record of statutes the Congress passes; it’s at 1 Stat. 613 (1799). That material is available, as a free download, from the Library of Congress. You can find it, and other volumes of the Statutes at Large, at: http://www.loc.gov/search/?q=Logan+Act&fa=subject%3Astatutes+at+large

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