RUTHFULLY YOURS

President Obama’s decision to avoid congressional scrutiny of his emerging nuclear deal with Iran led 47 GOP senators to write a letter warning Iran – and the president – that the Senate expects to be consulted.  A subsequent bipartisan letter signed by 367 members of the House of Representatives also urged the president to consult Congress.  A look at major 20^th-century strategic arms accords lends decisive weight to the position taken by Congress.

It is apparent that if President Obama inks a deal with Iran over its nuclear program, it will be in the form of an executive agreement, to escape the inconvenience of submitting it to the Senate as a treaty.  Given the two-thirds supermajority treaty consent requirement of Article II of the U.S. Constitution – formal legal ratification occurs only if the president signs – the president’s giveaway deal with Iran, if reached, would face a brick wall in the GOP-controlled Senate.

Consider the experience with the SALT I, SALT II and START accords.  They illustrate when executive agreements should be used and when formal treaties should be submitted.  Informing that debate was the 1961 statute establishing the Arms Control & Disarmament Agency (ACDA), which then governed arms treaties (emphasis added):

POLICY FORMULATION

SEC. 33. The Director is authorized and directed to prepare for the President, the Secretary of State, and the heads of such other Government agencies, as the President may determine, recommendations concerning United States arms control and disarmament policy: Provided however. That no action shall be taken under this or any other law that will obligate the United States to disarm or to reduce or to limit the Armed Forces or armaments of the United States, except pursuant to the treaty making power of the President under the Constitution or unless authorized by further affirmative legislation by the Congress of the United States.

So, executive agreements were expressly disfavored in the nuclear arms arena.  The exception that evolved is for interim accords.  But major interim accords received congressional scrutiny, most notably with the 1972 SALT I executive agreement on offensive systems.

In May 1972, President Nixon signed two accords in Moscow.  The ABM Treaty sharply limited superpower deployment of missile defense systems.  Ratified 88-2, it lapsed when in 2002 President George W. Bush exercised the treaty’s unilateral right-to-exit clause, and after a six-month waiting period, the U.S. exited.  Moscow, already under Vladimir Putin’s rule, could not – and did not – protest.  Had it done so, it would have been solely of political significance, raising the political cost of exiting a treaty the U.S. had a clear legal right to exit without Moscow’s formal consent.

Also executed in Moscow was an interim five-year agreement on deployment of offensive strategic nuclear systems.  It was submitted as an executive agreement, hence not subject to treaty ratification.  However, senators insisted that they have a say regarding the executive agreement as part of the Senate’s treaty consent process.  They accomplished this via the Jackson Amendment, named for legendary defense hawk Democrat Henry M. “Scoop” Jackson, and aimed squarely at the executive agreement.  Passed by a 56-35 majority, it provided that any accord would allow equal levels of force quantity and quality – what became known in strategic parlance as “essential equivalence.”  In pertinent part, Jackson’s amendment stated that the Senate

… urges and requests the President to seek a future treaty that, inter alia, would not limit the United States to levels of intercontinental strategic forces inferior to the limits provided for the Soviet Union; and the Congress considers that the success of these agreements and the attainment of more permanent and comprehensive agreements are dependent upon the maintenance under present world conditions of a vigorous research and development and modernization program as required by a prudent strategic posture.

The parties signed a third document in Moscow: a general statement of principles governing U.S.-Soviet relations.  This was not submitted to Congress.

In December 1974, the Ford administration negotiated a further interim accord at Vladivostok, to go into effect in October 1977 and expire December 1985.  In the face of strong rising domestic opposition, the accord never was formally submitted.

In June 1979, President Carter signed the SALT II Treaty in Vienna, which formalized limits on offensive systems.  It was to expire in December 1985, but when submitted to the Senate in September 1979, it stalled.  Moscow’s December 1979 invasion of Afghanistan sealed the treaty’s fate.  Though SALT II was never ratified, the Reagan administration adhered to its U.S. limits, if only because a Democratic House of Representatives would not appropriate funds for systems beyond the SALT II number.  SALT II duly passed its intended expiration date at the end of 1985.  Yet subsequent Congresses still refused to appropriate funds to enable the U.S. to exceed any treaty limits.

With the collapse of the former Soviet Union, the George H.W. Bush administration began the era of deep cuts in superpower arsenals via the Strategic Arms Reduction Treaties (START): START I (1991); START II (1997, never ratified by the Russian parliament); and START III – the so-called Moscow Treaty (2002).  President Obama won 2010 ratification of the New START, but the vast share of strategic nuclear arms reductions had taken place in the earlier post-Cold War treaties, in the three preceding administrations.

Thus we see that final accords were submitted as formal treaties seeking advice and consent of the Senate.  Executive agreements were used for interim accords only.  Throughout the 1970s and 1980s, Congress played a central role in arms control, using its power of the purse to curb growth of American strategic nuclear forces.  ACDA was abolished in 1999, its functions folded into the State Department’s Bureau of Arms Control, Verification and Compliance.  By then, three decades of active congressional participation in arms control accords had established well-grounded historical precedent.

Nonetheless, President Obama’s apparent intention to style the Iran accord an executive agreement –as a final settlement between the parties – clearly runs counter to the precedent set in earlier strategic nuclear arms agreements.  And his emerging option to submit a final nuclear arms control deal to the United Nations Security Council rather than to the Senate is wholly unprecedented.

The deal would give Iran a “right to enrich” never given to any nation since the Nonproliferation Treaty went into effect in 1970.  Iran has been offered a “sunset” provision, believed to be ten years, after which all nuclear activities of Iran will be legitimized, including weapons-related development and deployment.  Yet Iran has stated that it will reject even this minimal limit on its nuclear ambitions.

Adam J. White offers a further note in The Weekly Standard, as to Vice President Biden’s position taken while in the Senate, which insisted that the Senate play a major role in arms accords:

“The essence of the treaty power,” Biden concluded, “is that the president and the Senate are partners in the process by which the United States enters into, and adheres to, international obligations.”

Back then, Senator Biden was taking a victory lap for having convinced the Senate to limit its approval of President Reagan’s treaty with the Soviet Union on Intermediate-Range Nuclear Forces, by attaching a “condition” that would require the executive branch to defer to the Senate’s interpretation of the treaty’s terms.

But the condition – which, with characteristic modesty, Bidencalled “the Biden Condition” – did even more than that. As Senator Biden put it in 1989, the Senate’s move did nothing less than “repudiate decisively” the Reagan administration’s theory of the president’s diplomatic authority under the Constitution.

While questions pertaining to executive agreements were not before the Senate as to the INF Treaty, it is inconceivable that then-senator Biden would have generously interpreted the scope of executive branch discretionary authority to bypass such accords.  Rather, as a longtime ardent proponent of capacious senatorial prerogative – and especially as to arms control, then his prime national security concern – he surely would have sought an active role in concluding any presidential arms accord, regardless of the form it took.

In the event, given adamant senatorial opposition to the president’s proposed Iran deal, the president will gamble that the courts declare the matter a “political question” and hence decline to intervene.  The president takes the position, in domestic matters as well as foreign policy and national security, that if Congress declines to do his bidding, he has a constitutional right to bypass the legislature entirely.

But the extent of power accorded the legislative, executive, and judicial branches is the same, regardless of whether they act prudently, and regardless of whether they act out of benevolent or malevolent motive.  Whether a GOP Congress opposes a presidential initiative out of political expediency, personal animus toward the president, or sheer lassitude matters not one whit in determining the constitutional powers of Congress.  No president has a constitutional entitlement to have any presidential proposal passed.  And no prior president has claimed such a power in the face of legislative opposition.  Even Ronald Reagan, who won twice by landslides, regularly negotiated with an often hostile Democratic House of Representatives throughout his two terms in office.

In stark contrast, President Obama takes a “my way or the highway” approach, with his fallback being circumventing congressional opposition by executive fiat.  If the courts uphold such exercise as constitutional, or even if the courts simply stand aside by hiding behind the “political question” doctrine, the result will be to leave in ruins the venerable constitutional doctrine of separation of powers among co-equal branches.

And in the policy context of allowing the president to evade the Senate’s “advise and consent” power, the result will leave the global nuclear nonproliferation regime in ruins, with regional nuclear arms races and, eventually, one or more nuclear wars likely to follow.

John C. Wohlstetter is a senior fellow at the Discovery Institute and London Center for Policy Research, author of Sleepwalking With the Bomb, and founder of the issues blog Letter From the Capitol.