Foreign Policy and the United States Constitution

Article II, Section 2, Second paragraph of the United States Constitution reads: “He 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Now I’m sure many rather skittish members of the Republican Party afraid that Hillary Clinton may run and be elected President of the United States will focus on that first word “He” to point out only males can be president, but we’ll deal with that possible argument on some other date. This rant goes to how foreign policy is initiated and practiced in this country under the Constitution and what the roles of the Exec and the Legislative Branch (Congress) are in foreign policy. This rant is of course in response to what Congress has been doing regarding the President’s attempt to broker an effective nuclear arms deal with the Iranian government and how the Republicans in Congress are trying to sabotage it.

Under the Constitution, the Executive Branch appoints a Secretary of State who runs the State Department. That Secretary of State must be confirmed by majority vote of the U.S. Senate (advice and consent). The focus and direction of the State Department is the purview of the Executive Branch. The President nominates ambassadors that also must be confirmed by majority vote in the Senate. The President, through his State Department and Secretary of State sets the direction of the foreign policy of this nation. Any treaty the State Department enters into must be ratified two thirds majority of the Senate in order for the United States to be held to the provisions of that Treaty. So in simple terms, the president tries to work out agreements with foreign governments but they do not become law in this nation unless the Senate concurs. However, this involves full treaties. The agreement the President is attempting to negotiate with the Iranian government is simply that, an agreement on issues the Exec Branch of our government has control over as well as what the government in Iran has control over. It’s not a full treaty requiring a Senate Vote.

An interesting side note to this civics lesson involves one of the very first treaties this nation ever negotiated. It was President George Washington who sent an envoy to the Barbary Powers to negotiate the Treaty of Tripoli. This treaty in part noted that the United States was in no way founded as a Christian Nation. When brought before the Senate it was approved by unanimous consent and signed by then President, John Adams. But I digress.

Nowhere in the Constitution is it written that the Legislative Branch has the authority to initiate any foreign policy for this nation. Per Article II, Section 2 that resides in the Executive Branch. Further, early in our history, on January 30, 1799 the Congress passed what is now codified as 18 U.S.C. § 953 (Last amended in 1994) known as the “Logan Act” which states: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both. This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.”

In short, the representative of the United States Government is the President of the United States and the Secretary of State and ambassadors nominated by and confirmed by majority vote in the Senate. The President sets the course of diplomatic relations with advice and consent of the Senate, not the other way around.

For anyone in the Senate or House or anywhere else to negotiate treaties or interfere with negotiations under way by the duly sanctioned representatives of the Government of the United States is violating the law. Not only is it conceivable that Speaker of the House John Boehner could be charged under violation of the Logan Act by negotiating with a foreign head of state without consent of the executive branch, so can all 47 Republican Senators who wrote an open letter to the Iranian Government with the admitted intent by Senator Tom Cotton to undermine delicate negotiations this nation is involved with dealing with the very real and very serious threat of the Iranians developing and nuclear weapon.


Now what was really interesting in this letter that states to the Islamic Republic of Iran “…you may not fully understand our constitutional system” was the response from the Iranian Foreign Minister Javad Zarif:

“Asked about the open letter of 47 US Senators to Iranian leaders, the Iranian Foreign Minister, Dr. Javad Zarif, responded that “in our view, this letter has no legal value and is mostly a propaganda ploy. It is very interesting that while negotiations are still in progress and while no agreement has been reached, some political pressure groups are so afraid even of the prospect of an agreement that they resort to unconventional methods, unprecedented in diplomatic history. This indicates that like Netanyahu, who considers peace as an existential threat, some are opposed to any agreement, regardless of its content.

Zarif expressed astonishment that some members of US Congress find it appropriate to write to leaders of another country against their own President and administration. He pointed out that from reading the open letter, it seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.

Foreign Minister Zarif added that “I should bring one important point to the attention of the authors and that is, the world is not the United States, and the conduct of inter-state relations is governed by international law, and not by US domestic law. The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.

The Iranian Foreign Minister added that “change of administration does not in any way relieve the next administration from international obligations undertaken by its predecessor in a possible agreement about Irans peaceful nuclear program.” He continued “I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law.”

He was absolutely correct. The Iranian Foreign Minister has a far better understanding of United States Constitutional Law and Foreign Policy practice than these 47 Republicans. As noted above, Senator Tom Cotton has openly admitted that this letter was designed to sabotage the current negotiation. In my opinion the 47 signatures at the bottom of the letter represent 47 confessions of violation of the Logan Act.

Here is a list of the Senators who admitted to violating the law and placing delicate nuclear arms negotiations at risk and possibly what little middle east stability that still remains.

Tom Cotton, David Perdue, Joni Ernst, James Inhofe, John Cornyn, Mitch McConnell, Marco Rubio, Roger Wicker, John Hoeven, Richard Shelby, Thom Tillis, Richard Burr, Steve Daines, Jeff Sessions, John Boozman, Cory Gardner, Shelley Moore Capito, Ron Johnson, Mark Kirk, James Lankford, Chuck Grassley, Roy Blunt, John Thune, Mike Enzi, Pat Toomey, Bill Cassidy, John Barrasso, Ted Cruz, Jim Risch, Mike Crapo, Deb Fischer, Ben Sasse, Orrin Hatch, Dean Heller, Pat Roberts, John McCain, Rand Paul, Rob Portman, Lindsey Graham, Mike Rounds

Perhaps they would do better to go to Iran and learn United States Constitutional Law and Foreign Policy since they all seem to lack that knowledge. Let them know what you think of this treason on their part. Remember this in November 2016