Tuesday, June 09, 2015

Forty-seven Shades of Nay

Fantasy is fine—in its time and place.  But one's private life ends with public displays.  Consenting adults who become exhibitionists cannot expect to escape notice.


Executive agreements are an important part of American diplomacy.  They are made pursuant to a treaty, a joint resolution, or an Act of Congress.  But sole executive agreements depend upon the power of the President alone, such as recognition, a ceasefire, or a settlement of foreign claims.  Famous examples include TR's Gentlemen's Agreement, an accommodation with Japan on immigration that modified the Treaty of 1890, an action taken long before the Exclusion Act;* FDR's Destroyers for Bases Agreement that preceded the Lend-Lease Act; Truman acknowledging the existence of Israel, which answered the question posed by the Ancient of Days: "Son of man, can these bones live?"; and JFK's moratorium on setting off H-bombs, a first step which led to a shaft of light that cut into the darkness.


Has the saying for the GOP become "Politics starts at the water's edge"?

The Speaker's invitation was accepted by the Prime Minister.  The man who, in previous remarks to a congressional committee, had predicted that an invasion of Iraq would check the power of Iran, was to address a joint session.  He stood in opposition to "a bad deal" before the announcement of a framework.

An Open Letter to the Leaders of the Islamic Republic of Iran provided clarification.^  And even though scholars shall study this profound message for as long as there is sand in the hourglass, a cursory examination will have to masquerade as an equal.

"It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system."

The author and co-signers may want to look in the mirror.

"...Congress plays the significant role of ratifying them.  In the case of a treaty, the Senate must ratify it by a two-thirds vote."

The term is commonly misused, but those giving lessons should be aware of definitions.  Ratification is an executive act, the granting of final approval.

"A so-called congressional-executive agreement requires a majority vote in both the House and the Senate."

The Interim Agreement on Offensive Missile Systems was akin to a ceasefire.  President Nixon asked for "concurrence" by a Democratic Senate and a Democratic House, which was never in doubt.  But Mr. Cotton confuses courtesy—or comity—with a requirement.  Nixon could have acted on his own authority, as had JFK; and in both cases, negotiations continued and a treaty was concluded.

A so-called congressional-executive agreement is the result of interaction between the branches, but the tablets are not written in stone as the imitation Moses would have us believe.  In contrast to Smoot-Hawley, which was only concerned with collecting tariffs, and which proved disastrous, the Reciprocal Trade Agreement Act of 1934 and the Trade Expansion Act of 1962 delegated authority to adjust them and combined that with the President's power to conduct negotiations.  For even though the Legislature has power "to regulate commerce with foreign nations," the Executive is involved with implementation.  (Article I, Section 8, Clause 3)  Now, in the most recent revision of the process, a proposed free trade agreement is submitted for a vote under "fast track," which is another name for a closed rule, that is, neither House can offer amendments; and the finger of God is also inactive.  Thus, Mr. Cotton is mistaken about the issue at hand.  The specific arrangement mentioned in his letter rests on the foreign commerce clause, which is irrelevant to the situation with Iran.

"Anything not approved by Congress is a mere executive agreement."

A mere executive agreement would include TR's subtle use of justice to influence and maintain           the balance of power in the Far East; FDR throwing a life vest to Britain; Truman extending a greeting to a tiny nation in the Levant; and JFK calling "a truce to terror" with the Soviet Union.  As John Jay, a diplomat and the first Chief Justice, noted, "All constitutional acts of power, whether in the Executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the Legislature...."  (The Federalist Papers, No. 64)
"...(W)e 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 executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time."

"These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.  ...(T)hey who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them."  (John Jay, The Federalist Papers, No. 64)

Furthermore, these gentlemen would do well to reflect that the Supreme Court has recognized "the legal validity and obligation" of nothing more than an executive agreement.**  Then, in addition to the Framers and the Court, the gentleman from Arkansas and his associates may also want to weigh the words of a distinguished historian.

"The revulsion against executive agreements drew emotional support from a couple of          misconceptions: that most executive agreements were made on the claim of independent           presidential authority; and that the executive agreement had become a primary means of            American military and thus political commitment abroad.  In fact, most executive agreements—97 percent, according to the State Department—were made pursuant to treaties approved by the Senate or statutes passed, before or after the fact, by Congress as a whole."  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 312)

There is nothing unusual about the current negotiations.  They are a continuation of efforts to expand international law via the United Nations Charter, the Limited Test Ban Treaty, and the Non-Proliferation Treaty.  Failure to do so would cast doubt on whether the President was serious about his duty to "take care that the laws be faithfully executed," something men who brush up against the Logan Act may want to keep in mind.  (Article II, Section 3, Clause 5)

The importance of P5+1 goes beyond Iran; and in making every effort for peace, the United States continues to restore its moral authority.  Furthermore, action by the Security Council shall be justified, as will, if there is no other alternative, unilateral action by the United States.


Willful or studied ignorance and duplicity are not good cards.  Facts make a winning hand.  But those who fancy themselves Brett Maverick or Brady Hawkes keep sitting at the table, confident in the nonsense up their sleeves.

That's Embarrassment!  The storyline is a blend of soap opera and Ted Mack & The Original Amateur Hour.  Here, a Batman villain, the Riddler asks, "Which came first, the invitation or the RSVP?"  And there, the Wrestle Mania tag team of Cotton and McCain wear the New Scarlet Letter.  Meanwhile, Mr. Corker, who plays Marcel Marceau, gestures to suggest what already exists.

"There's no business like show business..."  The accusations are darts tossed by Willie the Wino.  He misses the target, and the critics miss the point.  Nevertheless, the reviews are scathing.  "In vaudeville, it was said, 'Kids and dogs are a tough act to follow.'"  

The Case Act of 1972 recognizes executive agreements and requires their transmission to Congress.  In honoring its spirit, the Administration gives regular briefings to Senators and Representatives.  So why pretend the letter of the law will not be followed, or suggest a new one is needed?^^  

"The show must go on" is not the nation's motto, although some in public life have not gotten the memo.  The opposition ignores the fact that the Secretary of State has been guided by a diplomatic version of the unit rule:  "Nothing is settled until everything is settled."  But the conduct of Cotton and McCain is particularly disturbing.  One expects more from men who have been "America's Ambassadors in green."  Yet those two, who question the President, show little inclination to reflection themselves.  Instead, they bring to mind a warning not "to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle."  (John Jay, The Federalist Papers, No. 64)


The Framers did not want "to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations," and all of today's tumult is a reminder as to why.

"It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former.  Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy."  (Alexander Hamilton, The Federalist Papers, No. 75)

Despite all the sound and fury on Capitol Hill, there are words that still matter.

"So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects.  Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation.  For these, the President will find no difficulty to provide...."  (John Jay, The Federalist Papers, No. 64; emphasis added)

©2015 Marvin D. Jones.  All rights reserved.

*Imagine—a President acting on immigration on his own authority.  Maybe those who take the oath should read the fine print.


The legal article below, unintentionally, verifies the comment made on the misuse of the word ratification.


Jay's remarks regarding a treaty also apply to an executive agreement, as shown by the Court's rulings in B. Altman & Co. v. United States (1912), United States v. Curtiss-Wright (1936), United States v. Belmont (1937), and United States v. Pink (1942).




The President signed the Iran Nuclear Review bill—without ceremony at the White House.  For the Hokey Pokey Act of 2015 has all the significance of its namesake.  After  "you shake it all about…and you turn yourself around…" you are standing where you started.  "That’s what it's all about."

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