With Trump pulling the U.S. from the Iran nuclear deal -- stirring uncertainty among numerous interest groups and constituencies, both foreign and domestic -- it would be well to reflect on how this might have been prevented by seeking Senate approval.
Treaties of the import, magnitude, and global consequence of the Iran Nuclear treaty should be submitted in the manner prescribed by the Article II of the U.S. Constitution, which states in no uncertain terms that no such treaties shall be entered into except by the advice and “consent of the Senate…” This provision should not be subject to evasion by calling such a treaty a “presidential agreement” or some other euphemism as a pretext for by-passing the Senate.
There are reasons why the Founders specifically limited the power of a single person to bind the entire nation in perpetuity to such treaties—not the least of which was to avoid the bitter political controversies we’ve seen in recent weeks regarding Iran. A worse consequence still is that foreign countries, whose representatives may not be aware of the U.S. constitutional requirement, or the ramifications of signing on to a mere “presidential agreement” subject to nullification by a future president, are now asking how they can trust the U.S. to abide by future treaties. The answer is that they could trust the U.S. to abide by its treaties if the constitutional process has been complied with.
If the Iran Nuclear Treaty had indeed been submitted to the Senate for approval, certain aspects of that treaty would no doubt have been more closely scrutinized, particularly the provision that effectively gave Iran carte blanch to continue its nuclear bomb program in only a few years. If a treaty with South Africa had promised that country $150 billion dollars and an end to sanctions in return for its promise not to engage in apartheid for a period of 86 months, after which South Africa would be free to re-instate apartheid, how many self-respecting senators would have signed on to such a treaty?
U.S. senators -- who were ostracized from the treaty negotiations – deserved at least to have their concerns aired. For example, when one senator suggested that a relatively modest provision should be included in the treaty by which Iran would agree to stop threatening Israel with annihilation, it was rejected outright by the president’s negotiators on grounds that it would be unreasonable to ask Iran to go against their “culture”. (Hatred is now a “culture”?)
Disagreements with political opponents, frustration over Constitutional requirements, and concerns that no self-respecting senator—and certainly not two-thirds-- would attach their name to a proposed treaty, should not be employed as justification for mislabeling a treaty as a presidential proclamation or agreement as a means of evading constitutional process. Though he was ultimately unsuccessful, Woodrow Wilson did not attempt to evade the Constitution by by-passing the Senate for approval of the Versailles Treaty, nor did Kennedy or Clinton attempt to deprive the Senate of their right to ratify the Nuclear Test ban Treaty.
Without learning from past mistakes, future controversies over similar international agreements will surely re-occur.
Robert Hardaway is Professor of Law at the University Of Denver Sturm College of Law, and the author of twenty published books and treatises on law and public policy.