At Opinio Juris, Julian Ku thinks maybe it did.  I agree.

As background, 47 U.S. Senators took the unusual step of sending a letter to Iran explaining how the U.S. Constitution works with regard to international agreements.  Again via Professor Ku, here is the core of the letter:

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and 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 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.

This is basically on the right track but misses a key step.

(1)  There are three ways that the United States can constitutionally make an international agreement.  The first is a treaty made with the consent of two thirds of the Senate, per Article II, Section 2.  The second is a congressional-executive agreement, approved by a majority of both houses of Congress.  (I don’t think this is allowed under the Constitution’s original meaning, see Chapter 10 of The Constitution’s Text in Foreign Affairs, but practice has likely approved it at least for some kinds of treaties).  The third way is a sole executive agreement, done by the President alone.

(2) As to sole executive agreements, I have argued (77 N. Carolina L. Rev. 133) that they are constitutional as part of the President’s executive power, and the Supreme Court has approved them in several cases.  Contra the Senators’ letter, there is no doubt that sole executive agreements are — like treaties and congressional-executive agreements — binding on the United States under international law.  It’s true that Congress can abrogate them (that’s also true of treaties and congressional-executive agreements), but only by violating international law.

But here’s the key: sole executive agreements can only cover limited subject matter.  The Court has only approved them for settlement of claims.  The Constitution’s original meaning and post-ratification practice supports this use, and suggest that some other short-term, low-level agreements could also fall within the sole power of the President.  Low-level executive agreements are extremely common in modern practice.  But this agreement-making power must be narrowly construed, or it would render superfluous Article II, Section 2’s very substantial check on the treatymaking power.  And indeed, modern practice does not recognize a power to enter sole executive agreements on important topics (apart from claims settlements).

Wherever one draws the line, it cannot be the case that a long-term agreement regarding nuclear weapons is something the President can do on his own authority.  Thus, the Senators’ letter concedes too much, for it implies that the President can make a binding agreement at least for the duration of his term.

(3) In sum, the President cannot make a binding agreement with Iran on nuclear weapons without (at least) Congress’ approval [I would say without the Senate’s supermajority approval, but that’s a more complicated argument].  However, the President can make a non-binding deal with Iran on his own.  This kind of arrangement — sometimes called a “political commitment” or (in the old days) a “gentlemen’s agreement” — is part of the President’s diplomatic power.  Examples are fairly common in modern history, including the Yalta and Potsdam agreements in the 1940s and the Helsinki Accords in the 1970s.  (See this outstanding article on political commitments by Duncan Hollis and Joshua Newcomer).   I assume that, to the extent the President plans to make a deal with Iran on his own authority, this is what he has in mind.

I think the Senators’ letter means to refer to a non-binding agreement when it says “executive agreement.”  But that’s an error.  Executive agreements are binding.  What the letter should have said is that the President lacks authority to make any binding agreement on the subject; any deal that is reached is therefore non-binding.

(4)  This is an important distinction that is easily missed.  Indeed, Iran has responded to the Senators’ letter (more here from Professor Ku) making exactly this mistake.  According to the Iranian response, any deal reached by President Obama would be binding under international law because the President embodies the nation in international negotiations.

It’s vital to get this misunderstanding cleared up.  If the President plans to rely on his executive authority to enter non-binding agreements, he needs to make clear to Iran (and others) that any agreement reached will be non-binding.  If, in contrast, the President believes he can make a bindingagreement on his own authority, that is an extraordinary claim of power that needs significant explanation domestically.

(As an aside, some commentary argues that the Senators’ letter is itself unconstitutional as an interference with the President’s diplomatic power.  Ordinarily I would be inclined to agree, but this is not an ordinary situation.  Absent clarification, it possible that Iran will misconstrue what should be a non-binding commitment as a binding one.  Moreover, it is possible that in such a circumstance international law would also regard the agreement as binding (if Iran reasonably understood the U.S. as offering a binding agreement).  As a result, I think the Senators’ intervention is justified, to assure that there is not a misunderstanding of constitutional dimensions.  But I wish the letter had made the point a little more clearly that the President, on his own authority, cannot constitutionally enter into a binding agreement with Iran on this matter, period.)

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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