See subject.
Obviously in play vis-a-vis Iran now.
Treaties must be agreed to and signed by the President, then ratified by a 2/3 vote in the Senate. Once ratified, a treaty is law within the United States.
The Iran agreement itself is not a treaty, rather it’s a negotiated framework for Iran’s nuclear program which will be overseen by the International Atomic Energy Agency. (The IAEA itself was formed by treaty in 1957; the US and Iran are both signatories.)
which is why this can be done by the President/Secretary of State, without requiring approval (that Republicans in Congress would never give). So they are trying to pass a law forbidding the Executive branch from making this agreement.
[Such a law (even if it passes) seems questionable to me, for a couple of reasons:
- hasn’t it already been negotiated & agreed to already?
- doesn’t the Constitution make the President responsible for dealing with foreign powers?
But I expect discussion of this would soon get into political arguments, which belong in another part of this board.]
Well, yes and no. Congress can’t interfere with the President negotiating the agreement, but their cooperation will be needed to implement certain aspects of the deal, such as removing sanctions, some of which require new legislation to undo.
Right now some members of Congress are also proposing bills that would remove the President’s power to undo certain other sanctions that are currently within his executive authority, and place that power back in the hands of Congress.
This gets into fairly technical discussions of the difference (from the domestic American legal perspective) between treaties, executive-congressional agreements, and executive agreements.
In essence:
-
Treaty: I, President friedo, agree with a foreign power that we should do XYZ, and if the Senate agrees by a 2/3 vote then XYZ is the law in the United States and this can only be undone by a new treaty mutually agreed by the powers concerned.
-
Executive-congressional agreement: I, President friedo, agree with a foreign power that we should do XYZ, and I will get Congress to pass a law implementing our side of the deal. But this means that XYZ must be something within Congress’s enumerated powers to legislate, and another Congress at any time can repeal that law.
-
Executive agreement: I, President friedo, agree with a foreign power that we should do XYZ, and will issue an executive order to implement our side of the deal. But this means that XYZ must be something that is within my power as chief executive to order, and any future President can undo it later.
The Iran deal is essentially a mix of items 2 and 3. The President can do a lot of it himself, but some of it will require the cooperation of Congress.
They can try to usurp executive rights. But of course, any law passed by congress has to be signed by the president, or else if he vetoes it, then they have to pass it with 67%. So either the Republicans drag in some Democrats who would agree with them, or they are grandstanding. So the odds are any attempt to take away the presidential power to dismantle some sanctions would fail.
The president also has the option to announce “we will not prosecute under this law” if there are sanction laws that he cannot persuade congress to undo. I have trouble imagining a prosecution succeeding when the government has publicly said “we will not prosecute, go ahead and trade with Iran…”
I don’t think this is correct. There is considerable debate as to who in the US government has the power to abrogate a treaty (i.e., whether either the President or Congress can do so without the consent of the other), but I don’t think it’s ever been held that consent of the other country is required. Along those lines, I don’t think there has ever been a case of another country going to a US court to enjoin the US government from unilaterally abrogating a treaty.
In practice, I think most treaties contain a provision whereby either country can terminate unilaterally by notice to the other country, so this point may not arise much in principle.
The State Department tells us, the other day, what is and is not.
Whatever it is, it is unsigned. For what the paper is worth: