APPLAUDING

TOPICS COVERED

Charts 3, 4 PROBLEM

Part 1: The Proposed Agreement with Iran

Part 2: The Political Ruckus

Charts 5 BACKGROUND: Constitutional Intent and Wording

Charts 6-11 COTTON LETTER SUBSTANCE:

Part 1: A WARNING: OUR PRESIDENTIAL AUTHORITY HAS LIMITATIONSPart 2: SENATE & HOUSE ROLE IN FOREIGN POLICYPart 3: WHAT THE CRITICS ARE SAYING – 3 ITEMSPart 4: REBUTTING THE CRITICS –ITEM 1)Part 5: REBUTTING THE CRITICS –ITEM 2)Part 6: REBUTTING THE CRITICS –ITEM 3)

Chart 12 CONCLUDING THOUGHTS

Chart 13 BIBLIOGRAPHY

PROBLEM - Part 1:

The Proposed Agreement with Iran

U.S. Sen. Tom Cotton, who wrote the open letter to Iran that was signed by 46 fellow Republican Senators described the effort as emphasizing to the “leaders of the Islamic Republic of Iran” that any agreement on a nuclear program without legislative approval is a “mere Executive Agreement,” which the next President can revoke “with the stroke of a pen.” He further added that we Senators “are focused on stopping Iran from getting a nuclear weapon and we wanted to be crystal clear that Iran’s leaders got the message that in our Constitutional system, while the President negotiates deals, Congress has to approve them for them to be lasting and binding.”

In a Sunday interview with CBS “Face the Nation” host, Bob Schieffer, Sen. Cotton responded to several somewhat indignant questions:

Question: “Why did you decide to try to convince the Iranians that they needed to be wary of dealing

with the United States?”

Reply: “Iran’s leaders needed to hear the message loud and clear. I can tell you they are not hearing

that message from Geneva.”

Question: “What would the alternative be if Obama’s deal fell through?”

Reply: “As Prime Minister Netanyahu said, the alternative to a bad deal is a better deal. The

Iranians frequently threaten to walk away from the table; if they walk away this week, call

their bluff. Congress stands ready to impose much more severe sanctions.”

Of course, the conduct of foreign policy is an essential task for any Nation. The Constitution regulates the conduct of Americanforeign policy by subjecting it—like all federal power—to a system of checks and balances. In the realm of foreign policy, the President’s powers are particularly substantial, but they are, very purposely, not unlimited.

PROBLEM— Part 2: The Political Ruckus

When the United States makes treaties with other Nations, or when it sends ambassadors abroad, it is practicing foreign policy. The first priority of the United States’ foreign policy is to preserve and strengthen the position of the United States as an independent and sovereign nation. Within the federal government, the Constitution divides foreign-policy making power between the President and the Senate, giving them shared authority over the making of treaties and the extension of diplomatic recognition to other nations. Specifically, the Constitution gives the Senate the power of “Advice and Consent” on treaties, which the President is responsible for negotiating.

The Constitution gives the House of Representatives no separate powers in the realm of foreign policy, though in cooperation with the Senate and the President it shares the power of issuing formal declarations of war. But the House can still affect foreign policy using its power of the purse and its ability to express public sentiments on foreign policy, thus holding the President to account. The Constitution makes it clear that the President takes the lead in the making of American foreign policy, by placing the power to make treaties and appoint ambassadors in Article II, which enumerates the powers of the President.

Nevertheless, within those limits, “Advice and Consent” imposes, AS IT WAS MEANT TO, a significant check on the President’s ability to make foreign policy. This check is intended to secure the common defense and welfare of the country. In the realm of treaties, the Senate’s “Advice and Consent” power is designed to prevent the U.S. from entering into an international agreement that is simply defective, or that endangers America’s status as a sovereign and independent nation. The approval of treaties also requires a super-majority vote of two-thirds of the Senate. The Founders believed that this was an important safeguard that would prevent a small majority of the Nation from committing the whole people. Finally, the Senate may adopt what are known as “declarations,” which state for the record the views of the United States on issues relevant to the treaty. IN SHORT, THE SENATE’S ROLE IS NOT SIMPLY ABOUT “CONSENT”; ITS POWER OF “ADVICE” IS VITAL.

Critics of Senator Cotton and all Citizens must understand the carefully balanced powers around which America was founded. Criticism of Senator Cotton’s letter and its 47 signers for speaking out against the President’s unilateral engagement to address Iran’s nuclear power is thus totally out of context with America and our unique Constitution which has protected us for 2+ centuries.

BACKGROUND: Constitutional Intent and Wording

An agreement with Iran concerning its continued development of nuclear weapons would dramatically reshape the regional balance of power and additionally, American security. President Obama’s move on Iran would seem to many to violate Article II of the Constitution, which declares that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” but only if “two thirds of the Senators present concur.” Article II’s plain meaning and history requires thatany agreement that restricts the Nation’s sovereignty must undergo Senate approval by a two-thirds supermajority. The Constitution requires that treaties win supermajorities to guarantee that they are backed by the highest levels of political consensus. Article II’s supermajority process provides a check on Presidents who are tempted to bargain away national sovereignty for political advantage or short-term gain. Similar security-laden agreements such as the Chemical Weapons Convention and the Nuclear Non-Proliferation Treaty, have previously undergone Senate approval. The Constitution’s explicit wording:

Article II, Section 2.“The President shall be commander in chief of the Army and Navy of the United States, ….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; ..”

Under the Constitution’s Foreign Commerce Clause, only Congress has the authority to impose international economic sanctions. President Obama’s executive agreement cannot prevent Congress from imposing mandatory, severe sanctions on Iran without the possibility of presidential waiver. Some may claim that the President has authority to agree to allow Iran to keep a nuclear-processing capability; but under Article I, Congress can cut Iran out of America’s influence in world trading and financial systems.The Constitution’s explicit wording:

Article I, Section 8.“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; …. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; ..”

COTTON LETTER SUBSTANCE: A Warning: Our Presidential Authority Has Limitations

Joined by almost all Republican Senators, the Cotton letter warned Tehran that any nuclear deal with President Obama would not last unless it went to Congress for approval: Here are the key passages from the letter:

“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our Constitutional system. Thus, we are writing to bring to your attention two features of our Constitution –the power to make binding international agreements and the different character of federal offices –which you should seriously consider as negotiations progress.

“…under our Constitution, while the President negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two thirds vote. A so-called Congressional-Executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate).Anything not approved by Congress is a mere executive agreement.

“What these two constitutional provisions mean is that we 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.”

COTTON LETTER SUBSTANCE: Senate & House Role in Foreign Policy

About the text of the Constitution. There are three types of international agreements under U.S. law (ref 1):

a. Treaties: These require two-thirds of the Senate for approval. b. Congressional-Executive agreements: These require approval by the House and the Senate. Although unmentioned in the

Constitution, they are nothing more than regular laws passed by Congress. These have been used for deals such as trade agreements.

c. Sole Executive agreements: These are made by the President alone. They are Constitutional only because they simply represent promises by the President on how to exercise his Constitutional power.

Of course, the Administration apparently did not wish to consider this a Treaty (item a), although it is difficult to comprehend how an agreement involving nuclear weapons with another country could be anything else under this Nation’s careful balance of powers between the 3 federal Branches. Clearly, there was also no coordination with Congress as required by item b. Thus constitutionally, the President has unwisely chosen the go-it-alone approach, (item c).

So Senator Cotton is not only Constitutionally correct, that a nuclear agreement with Iran, absent a Congressional approval, is simply an informal agreement by President Obama and is in no way, a legal binding agreement made by the United States government. Moreover, Senator Cotton and the co-signing Senators have every right to publicly express their views and alert (1) the Iranians as to the true nature of the deal they are signing, and (2) alert the American People about the President’s complete disdain of the American Constitution, which has become characteristic of an increasingly unlawful and addictive mode of Leadership that is totally at odds with 2 centuries of successful and Citizen-focused American governance.

COTTON LETTER SUBSTANCE: WHAT THE CRITICS ARE SAYINGMuch of the Liberal press has been very critical of both Senator Cotton and those who signed it. According to them, the letter is

very significant for three big reasons:

1) It's a deliberate effort to blow up the US-Iran nuclear talks. One of the biggest problems in the negotiations is trust: how to get the US and Iran to overcome decades of antagonism and to trust one another to follow through on their respective ends of the bargain. Detractors of Iran have been trying to influence negotiations by imposing new sanctions on Iran. Thus, Liberals claim the purpose of Cotton's letter is to convince Iran's leaders that despite Obama’s promises, the US cannot be trusted.

2) This is an unprecedented breach in protocol — and maybe even the law. Liberals assert that Constitutional law sets sharp, and important, limits on Congress's involvement in foreign policy, and that the law defines the President as the "sole organ" in making foreign policy. Cotton's letter, by interfering with Obama's foreign policy, is thus cited as unconstitutional. Also, the letter is claimed to violate a law called the Logan Act, which forbids Americans from interfering in US foreign policy. The law was originally passed in 1798, to avert any undermining of US policy toward France. Critics further claim the Cotton letter undermines the very foundations of how any foreign policy is made in the United States.

3) This could dramatically alter the politics of the Iran deal in Washington. By taking this extreme step, critics say Cotton is almost certainly going to polarize the politics of the Iran deal and heighten the partisan nature of it. That could mean polarizing Republicans against the deal while polarizing Democrats in support of the deal. However, if Obama must get his Iran deal ratified as a formal treaty, he will need some Republican support in the Senate. Cotton's letter could help make sure that doesn't happen. However, if Obama decides to just make the US participation in the deal an Executive Agreement (this is common for some types of international agreements), then all Obama will need is for Congress to do nothing.

Each of these 3 claims is rebutted separately in the 3 following pages.

COTTON LETTER SUBSTANCE: REBUTTING THE CRITICS –ITEM 1)

Critics: It's a deliberate effort to blow up the US-Iran nuclear talks.REBUTTAL: Not exactly a valid critique. Rather the effort is a warning by the Senators that history of the word of the Iranian government, in prior matters, does not earn it a solid basis for future trust. The recent statement by Israeli Prime Minister Netanyahu to the U.S Congress summarizes the matter well: “Iran has proven time and again that it cannot be trusted,” no matter what it says about permitting verification of the terms of any accord designed to prevent it from getting nuclear weapons. Yet, “the greatest danger facing our world is the marriage of militant Islam with nuclear weapons.” Two broad examples: 1. The negotiations between Tehran and the five permanent members of the UN Security Council — the U.S., Britain, France, Russia, China —

plus Germany have followed a familiar script. Iran seeks to further its efforts to develop its nuclear technology — solely for civilian uses, it claims. The agreement is said to involve a 10-year time frame — after which Iran would be free of any restrictions on its nuclear activities. Thus Iran will have a decade or more to develop its expertise, under a far more favourable environment than at present. After that, Iran would be free of any restrictions on its nuclear activities. Under the deal “not a single (nuclear facility) would be demolished.” With its facilities largely intact, some believe “Iran’s time to make ready its nuclear weapons would be very short. The White House has not raised the matter of trust. Yet Iran has violated previous nuclear agreements, lied about its facilities and blocked inspection attempts. Iraq and North Korea have both demonstrated how easy it is to foil monitoring programs.

2. Meanwhile, Iran’s current President, Hassan Rouhani , gained office on pledges to help some of Iran’s domestic “reformist” efforts. At home, however, Iran’s new President is rapidly running out of time. With his first 100 days in office now up, Mr. Rouhani faces mounting resentment from an Iranian public, which — having elected him last summer on his “reformist” promises — has little to show for it. Some 800 political dissidents currently languish in prison; an estimated 474 individuals have been executed during and near the end of 2013.

3. Of course the top power in Iran is the Ayatollah Ali Khamenei, a leader who sees his duty as a Leader of all Muslims and a responsibility to bring about the return of the “13th Imam”. A prerequisite for this return is a cataclysmic showdown between the Islamic and the non-Islamic world, to enable the 13th Imam - the hidden Mahdi - to emerge and unite the whole world under the banner of his form of Islam and establish a global caliphate. See Rubio clip: http://www.powerlineblog.com/archives/2015/01/rubios-short-course-on-iran.php

It is this scenario which stipulates the need for high caution in any Nuclear agreement with Iran.

COTTON LETTER SUBSTANCE: REBUTTING THE CRITICS –ITEM 2)

Critics: This is an unprecedented breach in protocol — and maybe even the law . REBUTTAL: This charge seems rather specious and ill-considered. As noted earlier, it is the Constitution which seems to have been ignored at present And it is the President who seems in breach. As was discussed in chart #5, rules regarding foreign policy and use of Treaties are specifically developed to ensure the safety and security of our Nation. And while the President can make some simple “agreements” with other Nations, Treaties are the medium for serious foreign policy measures and those relating to nuclear weapons must surely fall into that category.

The adjacent diagram depicts the cautious use of checks and balances between the 3 Federal branches of government , inserted into our Constitution to help safeguard Citizens from too much power grabbing by any one branch. Moreover, in the category of Treaties, the Congress, under the auspices of the Senate was duly authorized to oversee and add its consent to matters of that importance.

Thus, when the term “protocol” is thrown about, it is useful to look two recent Treaties, related also to the weighty matter of nuclear weapons:1. the TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS (NPT), was duly

ratified by the US Senate, and signed July 1, 1968; 2. the STRATEGIC ARMS LIMITATIONS TREATY dealing with a reduced number of nuclear

launchers. It was duly ratified by U.S. Senate, and signed April 8, 2010.

Given the seriousness of today’s nuclear weapons, delivery capability, and multiple Iranian Middle East military escapades, one must certainly question why the current issue is not handled as a Treaty. Thus it is clearly appropriate for Senator Cotton and any Senate colleagues to make their opinions known, not only to the American public, but to the Iranians and other parties, so there is no future ambiguity about the “pliability” of the agreement.

COTTON LETTER SUBSTANCE: REBUTTING THE CRITICS –ITEM 3)

Critics: This could dramatically alter the politics of the Iran deal in Washington.Republicans accused the White House of repeated failures to consult with Congress as the negotiations progressed. “Iran is a tough, divisive issue. Everyone I know is concerned about what the Iranians are up to,” said President of the Council on Foreign Relations’ Richard Haass. Senate Majority Leader Mitch McConnell (Ky.) said recently: “To make a deal of this magnitude with one of the worst regimes in the world without any Congressional input leads you to believe he’s going to make the deal that we all fear he’s going to make. . . You just have to be suspicious as to why the administration would not want our participation.” Rep. Adam Kinzinger (R-Ill.), an Iraq war veteran, said that even lawmakers who might have reservations about the Senate letter understand that it came out of a deep unease over Obama’s liberal use of his executive authority. “But the letter might never had been written had the administration been more open with members of the Senate and members of the House about what was going on and what their goals are.” Sen. John McCain (R-Ariz.) said that he stands by signing the letter sent to Iran's leadership concerning ongoing negotiations over its nuclear program.

Republicans cited President Woodrow Wilson’s efforts to negotiate European peace settlements after World War I, which were blocked by Congress. And they pointed to then-House Speaker Nancy Pelosi’s 2007 meeting with Syrian President Bashar al-Assad, whose government was accused of supporting the anti-U.S. insurgents in Iraq.

Both sides, however, agreed that something has changed in the conduct of U.S. foreign policy over the past few months. “Today there’s at the least a lack of trust between the parties,” said former Senator Richard G. Lugar (R-Ind.), who previously served as Chairman of the Foreign Relations Committee.

CONCLUDING THOUGHTS

• Senator Cotton’s Letter is Very Responsible and Very ConstitutionalI. When the United States makes treaties with other nations, or when it sends ambassadors abroad, it is practicing

foreign policy. The first priority of the United States’ foreign policy is to preserve and strengthen the position of the United States as an independent and sovereign nation. The Constitution vests the power to make foreign policy in the federal government. Within the federal government, the Constitution divides foreign-policy making power between the President and the Senate, giving them shared authority over the making of treaties and the extension of diplomatic recognition to other nations. Specifically, the Constitution gives the Senate the power of “Advice and Consent” on Treaties, which the President is responsible for negotiating.

II. The particular issue of Presidential negotiations with Iran concerning both U.S. economic sanctions and Iranian nuclear developments is an issue that, as noted in item (I.) above, seems quite clearly to be either:a) of such critical significance as to make it a “Treaty”, or to beb) simply the President expressing an informal promise that he will honor his personal commitment to abide by any

terms reached - - but such terms are not a long-term commitment by the United Statesc) In case a) or b) for the Congress to be chastised for speaking up to clarify the subject is outrageous.

• Congress Should Be More Aggressively Defending The Constitution and Fulfilling Their Own Responsibilities delineated in it

I. In matters involving both American security and economic relations with another Nation, most Americans rely on their Congressional Reps to safeguard their interests. This is in no way achievable under a secretive, go-it-alone policy by the Executive Branch.

II. Moreover, The Congress, by failing to live up to their Oath of Office regarding protecting the Constitution is seriously failing in its responsibilities to the Citizens who voted them in and expect that responsibility to be fully observed.

• In America, NO ONE Is Above the Law

Bibliography

With grateful acknowledgement to the following publications:

1 “Tom Cotton’s Letter to Iran Gets the Constitution Right”, John Yoo, National Review, March 11, 2015

2 “Who Makes American Foreign Policy?”, Baker Spring, Heritage Foundation, April 29, 2011

3 “Advice on Advice & Consent”, John Bolton and John Yoo, National Review

4 “Four Reasons Why the Left Loathes Senator Cotton’s Letter to Iran”, Benjamin Weingarten, blaze.com, Mar. 16, 2015

5 “The Uproar Over Sen. Tom Cotton's Letter to Iran, Explained”, Max Fisher, Vox.com, March 10, 2015

6 “Rubio’s Short Course on Iran” – video clip from Jan 21 Senate Foreign Relations Committee hearings, Sen. Marco Rubio interviewing Deputy Sec. of State, Antony Blinken, posted by Scott Johnson, Powerlineblog.com, Jan 28, 2015