The latest edition of Hillsdale College’s Imprimis features remarks from U.S. Sen. Tom Cotton, Republican from Arkansas, about President Obama’s decision to disregard the U.S. Constitution in pursuing a nuclear weapons deal with Iran.
… [T]he President didn’t submit the Iran nuclear deal as a treaty. From the beginning, his intention was to circumvent the people’s representatives and obligate the U.S. to the ayatollahs by a mere executive agreement. Instead of rallying two-thirds of the Senate to support the deal, he relied on a tiny, partisan minority to protect his executive agreement from the judgment of the American people.
This is dangerous and nearly unprecedented. Executive agreements are and should be reserved for technical matters. Among the first executive agreements in our history were the 1792 agreements between the United States and other nations to coordinate mail delivery. Executive agreements have also traditionally been used to assign claims and debts between nations. These issues are low-stakes, and are not breeding grounds for armed conflict. They are akin to deciding whether cars will drive on the right or left side of the road. That’s why they do not need to be tested by a supermajority vote.
Nuclear weapons agreements are different. The dividing line between subjects reserved for treaties and subjects reserved for less formal scrutiny is not precise at the margins. But this isn’t anywhere near the margins. Historically, major arms control agreements that bind the U.S. have almost invariably been reached through treaty. One notable exception was the Agreed Framework with North Korea negotiated under President Clinton in 1994, which aimed at keeping North Korea from becoming a nuclear power. I doubt President Obama would like to cite the North Korea case as precedent—although it surely is a precedent in its contempt for Congress, and likely in its failure as well.
Why did President Obama ignore the Treaty Clause? The answer is stunning. Secretary of State Kerry lamented in testimony to Congress that it is “physically impossible” to get a treaty through the Senate in these polarized times. Of course, this logic could apply to any politically inconvenient part of the Constitution. Moreover, Secretary Kerry must have forgotten that, as chairman of the Senate Foreign Relations Committee, he guided a nuclear arms control treaty with Russia to ratification less than five years ago.
The simple fact is that the President ignored the Constitution because he knew the Senate would reject his deal. This disregard for the Treaty Clause is the height of hubris. It mistakes tunnel vision for principle, closed-mindedness for superior wisdom, and personal legacy for the vital national interest.
