Good point. Suppose, as a hypothetical, I decide that I want to get Logan Act authority, as a US citizen, to discuss a matter with a foreign government. Who in the US government is authorized to grant me that permission (not that I’d get it, this is a hypothetical after all)? Would asking a US National Park Ranger be sufficient? IRS agent? Senior IRS agent? US Army lieutenant? Captain? One star general? Four star general? POTUS only? Any Federal judge? A majority of justices of the SCOTUS? Territorial governor of Puerto Rico? If the head ranger of Yellowstone National Park is OK with me having my own talks with Iran but the head ranger of Denali National Park says no, does the “no” overrule the “yes” or does it go up to the next higher ranking official in the Park Service?
Since the constitution says the president has the right to negotiate treaties it would seem to me you need the president’s permission.
As a matter of practice I suspect he delegates the work to the State department and they decide who gets to talk on behalf of the US with a foreign power. Presumably the president could micromanage those decisions if he wanted to but I bet he rarely does.
More formally the president chooses ambassadors but they have to be approved by the senate.
Note: You can of course talk with a foreign government anytime you want with no approval from the US (barring some trade restrictions or somesuch). If you want to open a factory there or buy raw materials from them or whatever go ahead and talk to them about it. You just cannot negotiate on behalf of the US. Only for yourself (or company).
What’s confusing me about that is that much of the argument against the Republican letter has been based on the notion (as promulgated by Ravenman and others) that the president can conclude the Iran negotiations via executive agreement, thus preempting a Senate role, but I didn’t see anything in those sources which made that clear.
In addition, the argument was put forth in this thread - originally attributed to the Iranian FM but agreed to by some posters - that once the agreement was in place it would be binding under international law. In your third link there’s an article by a couple of guys claiming Obama could make a deal via executive agreement precisely because such agreement would not be binding under international law.
We don’t know whether the negotiated agreement can be concluded by the President alone, because we don’t know what’s in it. But the Iranian Foreign Minister probably knows more than Tom Cotton.
You misread them. They are saying that if the agreement is non-binding under international law, then there is little doubt that the Senate is unnecessary. It does not follow that the agreement must be non-binding in order to be entered without consent of the Senate.
But he probably knows less about executive order versus treaties under US law and what does or does not require senate ratification.
I understood all that.
I asked for some clarity about executive orders versus treaties and you cited that link as an example, so I noted that to the extent that that source does make a definitive statement it’s only that it’s legal if non-binding. So to the extent that there is clarity about the lack of need for Senate authorization it’s because it’s not binding under US or international law, and to the extent that it is binding then it’s uncertain that the president has authority to make the deal. This seems to be in contrast with the position of many posters in this thread.
Why? He has a U.S. PhD in International Relations, and a career in international negotiation. Cotton is a lawyer, but has no significant international law experience–as demonstrated in the mistakes he made in his letter.
I don’t see any reason to comment on whether you were reading others posters arguments correctly. They can speak for themselves.
Well, I’m sure you won’t get it by asking. If the State Department has a job for you, they’ll call you.
Jesus fucking Christ:
Forget about sourcing to specific provisions of international law, and the philosophical question of whether it matters if something is legally or merely politically binding if everyone adheres to it anyway, or even if they don’t — let’s just talk common sense here.
If you, your business, a country, or anyone else is undertaking negotiations with the aim of reaching some kind of agreement, isn’t it a simple expectation that the parties will carry out their side of the bargain regardless of whether they are legally, politically, morally, ethically, or simply-out-of-their-own-niceness required to do so? Why spend so much effort to negotiate something if one genuinely expects the agreement to be undermined at the first opportunity?
Forget the question of domestic law versus international law, and just think about this in common sense terms. Iran, the US, UK, France, Russia, et al are negotiating an agreement with the hope it will be adhered to. Sure, maybe it will require a lot of verification to achieve confidence that it will be, but there’s an underlying understanding that at some level, a deal is a deal.
What the Cotton letter did, regardless of whether it is correct on matters of law, is basically tell Iran that they can’t trust the President of the United States to act in good faith. What’s more, the letter sent that message not only to the Supreme Leader of Iran, but also to the Prime Minister of Britain, the President of France, etc that the U.S. stands ready to discard any agreement at the drop of a hat. It’s one thing for Cotton to say that Iran is untrustworthy, but he went one further and said that the U.S. cannot be trusted.
I doubt if international relations studies focuses much on when the US can do executive agreements without senate ratification versus when it can’t, especially as it seems like a murky subject to begin with. I would trust more a guy who was actually elected to the senate.
But the key question is whether in fact Obama can in fact do what he’s doing without senate ratification. Because if he can’t and he’s just trying to put the US into a situation where it would looks untrustworthy unless his power grab is validated, then it’s Obama’s fault if the US looks that way, and it’s wrong to expect other branches of government to allow their powers to be usurped in this manner.
Imagine some corporate CEO negotiating a merger (or whatever) agreement that he knows the board of directors opposes. Would you say the Board should allow him to do this because otherwise they will be undermining their CEO, or should they let it be known upfront that they don’t intend to approve the deal?
Of course, if Obama does have the power to do what he’s doing, that’s another story. But that’s why whether he can do this or he’s just going to do it anyway and dare the Republicans to undo it is the crux of the issue.
Bill Clinton negotiated a nuclear deal with North Korea in 1994. The deal fell apart for several reasons, but it isn’t like you’re going to get an authoritative answer on whether that agreement was constitutional. What you can say is clearly that it is a precedent.
Not that it really matters, but even at the BA level, Int’l Relations classes cover the different types of international agreements.
By contrast, there is no special training course once you get elected to the Senate–again as evidenced by Cotton’s incorrect comments in the letter, including about how ratification works and whether executive agreements can be “revoked” as opposed to breached.
We have a definitive answer on whether the agreement will be legally binding. The Secretary of State says it won’t be:
Makes sense. Iran was willing to flout international law to develop the program in the first place after signing onto the NPT. What will keep them in check is probably not international law, but the threat of new or continued sanctions from the P5+1 nations.
Will be interesting to see if the GOP suddenly develops respect for the value and power of binding international law. Any bets?
There is no such thing as binding international law. “Binding” law implies a police power with the ability to enforce it. No such mechanism exists.
Sure there is. The US is bound to observe the UN Convention on Torture. Only the most depraved president would dare to violate this binding agreement.
And if he violates it, then what happens? Ah, yes, nothing, as we’ve seen. But you knew that.
But in 99% of the cases, the parties are bound by their national honor