By Harold Pease, Ph. D
The New York Daily News, March 10, unleashed a firestorm with its front-page depiction of the 47 Republican U.S. Senators who signed a letter to Iran reminding it that Iran’s agreement with President Barack Obama still had to be reviewed, and approved by them. In giant letters crossing the bottom of the page was the word TRAITORS. Senator Tom Cotton, Arkansas Republican, called “Tehran” Tom by one democratic senator, was credited as the author of the letter. All but seven of the Senates 54 Republican majority signed. No Democrat signed and they are furious with this action inferring that the Republicans are siding with America’s enemies even, as Minority Leader Harry Reid said, “empowering the ayatollahs.”
The Senate letter, which I closely read, advised the leaders of the Islamic Republic of Iran of the separation of powers in the Constitution between the executive branch, which makes international agreements, and the legislative branch that must approve such; that a treaty must be ratified by two-thirds of the Senate; and that without this majority vote of Congress it is merely an executive agreement and potentially meaningless after, in this case, Obama leaves office. It ends: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.” Signatures followed.
But does this letter constitute treason as the newspaper claimed and leading Democrats inferred?
As with every issue first consideration should be, “What does the Constitution say?” The word treason appears in Article III, Section 3, and follows: “Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies giving them Aid and Comfort.” Did this letter, reminding a dictatorial government, where the voice of one dominates, of our constitutional procedures requiring the voice of many, consist of levying war against the United States? No! Did it adhere to the interests of our enemies, which Iran is or we would not have sanctions imposed against it? No again. The Constitution continues: “No Persons shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Clearly the Senate Republican letter cannot be attached to any of the properties of treason in the Constitution. Certainly The New York Daily News, and Democrats making the charge, has convicted nearly half of the U.S. Senate as traitors without constitutional basis.
But to the charge that they are interfering with negotiations by reminding the Iranians of our constitutional procedures, the Constitution clearly prescribes such in Article II, Section 2, Clause 2. The President “shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.” The advice function is performed during the creation of a treaty and the consent function is thereafter, once an agreement is presented to them. Many presidents have not sought the advise of the Senate when they created treaties and certainly Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from Congress.
Obviously a letter to a foreign government reminding it that no branch of government operates independently of another in the United States, does not constitute giving advice to the President. But in a distorted way it does. It reminds the President of constitutional procedure as well and places him on notice that he can expect resistance should he circumvent the constitutional treaty-making process.
So why did the Senate not wait for the finished treaty? Because they were afraid. This Congress has experienced the most encroaching president on legislating and treaty-making powers since Franklin D. Roosevelt and they were not certain that he would even present the finished treaty to them for ratification. Remember, this is the same president who by executive order by-passed Congress on executive amnesty thereby making his own law and independently changed parts of the National Health Care Bill at least 14 times with a stroke of the pen with no constitutional authority.
My question to the seven Republicans who did not sign and to all the Democrats in the U.S. Senate is this. Why did you not sign as well? Why is there not bipartisan support of the Constitution? Can’t you see your authority being eroded? If a Republican did the same thing increasingly, by executive order or fiat, undermining the constitutional separation of powers leaving your body weaker than before, you would be all over him. Ironically Republicans would be supporting their president. Neither party sees its own as dangerous.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.