47 US senators can be wrong

Revelations about a letter written to Iranian leaders by 47 American senators about a nuclear deal with Iran rapidly hit the international headlines in the past 10 days. In their letter, the American lawmakers had warned that the powers of the Executive in the US are limited according to the Constitution and there is no guarantee that if Iran reached a nuclear deal with the US, the deal would be considered valid when US President Barack Obama’s term in office comes to an end.

The letter raised many questions in the world’s public opinion: Is the power of the US president so limited in foreign policy matters as 47 senators have alleged? Can the US Senate or Congress actually put a brake on international agreements that are signed by the president? Can US international agreements really change once the president and the ruling party change? Are legal claims made by 47 senators compatible with principles of international law?

This paper represents an effort to answer these questions through a legal approach.

Since the independence of the United States, an unwavering principle that has been established in the legal structure of the country is that the president alone represents the United States in foreign relations. This principle has been established through various judicial procedures in the United States, including in the case of “United States v. Curtiss-Wright Export Corp” in 1936. The judge stipulated in this case that “the President alone has the power to speak or listen as a representative of the nation.”

Also, according to Para. 2, Section II of the US Constitution, when the Executive signs an international agreement, “two-thirds Of the Senators present must approve before a treaty is confirmed.” It also adds, “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.”

However, this provision does not hold water about “executive agreements,” which are concluded between the US Executive Branch and other governments and which cover the large part of foreign obligations of the United States. Although the US Constitution has clearly talked about the role of the Congress in endorsing international treaties, it has remained silent on executive agreements. Therefore, when it comes to assessing legal status of executive agreements, the main criteria to judge is judicial procedures and decisions that have been already reached in various cases in the United States judicial system.

The judicial procedure and decisions in such cases as United States v. Belmont (1936), United States v. Pink (1941), and Dames & Moore v. Regan (1981) unanimously emphasize that the president is the sole qualified person to make decisions as to the executive agreements. Also, the historical course of foreign relations of the United States underlines the point that executive agreements do not need the approval of the Congress. Of course, in practice, interaction and dialogue goes on between the Executive and the Legislature in order to reach a mutual consensus on executive agreements.

However, according to the explicit decision reached in the case of Whitney v. Robertson (1888) by the US Supreme Court, the Congress can pass a law with the purpose of aborting executive agreements entered into by the US president. Of course, according to Para. 2, Article I, Section 7 of the US Constitution, the president can veto the decisions of the US Congress. Therefore, the Executive and the president have the final say on foreign relations and conclusion of international agreements and based on legal considerations, the powers of the Congress with regard to any nuclear deal between the US government and Iran are limited.

On the other hand, the US Constitution has allowed the president, as commander in chief of the armed forces, to enjoy special powers in order to protect the national security of the United States in domestic and foreign policymaking. This is another tool, which allows the president to confront measures taken by the Congress.

From the viewpoint of international law, however, there are three compelling principles which prove the letter sent by 47 US lawmakers lacks any legal basis: 1. The principle of lasting obligations of governments, which means a change in people and parties does not cause a similar change in foreign obligations of a government; 2. The principle of the priority of international law over domestic law, according to which domestic law or domestic political contentions cannot be taken as excuse to shun international obligations; and 3. Estoppel rule according to which recourse to conflicting behavior or remarks to the benefit of oneself and the detriment of others has been prohibited.

Therefore, these legal principles effectively prevent the United States from breaching its foreign obligations or considering them as temporary, and any final nuclear deal with Iran will be no exception to this rule.