The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.
Question and Answer
Out on a Limb
Who’s Overreaching Now
It seems to us that Democrats, egged on by the liberal media, have done exactly what Republicans were warned not to do in response to Mrs. Clinton’s email coverup—overreached and overreacted.
The “Open Letter to the Leaders of the Islamic Republic of Iran,” spearheaded by Sen. Tom Cotton of Arkansas, was a response to President Obama’s declaration that he will not seek congressional approval for any deal with Iran. That would mean, the letter noted, that the agreement would not have the force of law:
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.
An agreement without congressional approval can be abrogated at any time by the president—or his successor.
There’s certainly a case to be made that putting out the letter was imprudent. “It’s a distraction from what should be the main political goal of persuading the American people,” The Wall Street Journal argued in a Tuesday editorial. “Democratic votes will be needed if the pact is going to be stopped, and even to get the 67 votes to override a veto of the Corker-Menendez bill to require such a vote. Monday’s letter lets Mr. Obama change the subject to charge that Republicans are playing politics as he tries to make it harder for Democrats to vote for Corker-Menendez.” (Foreign Relations chairman Bob Corker, the lead GOP sponsor of that bill, was among the seven Republicans who did not sign the letter.)
But the reaction from Democrats, and their media supporters, has ranged from pedantic to unhinged. Start with the pedantic, from a useful (though tendentious) roundup by BBC White House correspondent Tara McKelvey:
The authors attempt to describe the system, and in the process they get things wrong.
Despite what the authors claim in their letter, the Senate does not ratify treaties. Members of the Senate give their advice and consent. The president signs off.
“The letter lectures Iranian leaders on how our constitutional system works, and it’s done in a way that mis-describes our system,” says [American University’s Stephen] Vladeck. “You might call that the very definition of chutzpah.”
This is true, but the distinction is entirely terminological, not substantive. The Constitution does not use the word “ratify” with respect to treaties; it gives the president “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” A two-thirds vote in the Senate is a necessary condition for ratifying a treaty.
Another claim is that the letter is “unprecedented.” McKelvey presents that claim as a simple matter of fact, prefacing it with “One thing is true.” But “unprecedented” is a slippery term: Unless you believe in Nietzsche’s eternal recurrence, everything that happens is new and in some sense unprecedented. Thus Vice President Joe Biden:
In thirty-six years in the United States Senate, I cannot recall another instance in which Senators wrote directly to advise another country—much less a longtime foreign adversary—that the President does not have the constitutional authority to reach a meaningful understanding with them.
But Vox.com’s Max Fisher claims it’s unprecedented in a far broader sense:
Republicans, driven by earnest policy disagreements with Obama over his approach to Iran, are bringing the tactics they used to undermine Obama’s legislative agenda into the previously sacrosanct realm of foreign policy.
Republicans are overtly sabotaging not just Obama’s Iran policy, but also his constitutionally enshrined authority over foreign policy. This is unprecedented.
In fact, as the Weekly Standard’s Rachel Medoff notes, there are many past examples of congressional efforts to undermine the president’s foreign policy, including during Biden’s Senate tenure:
In 1985, for example, then-freshman Senator John Kerry traveled to Nicaragua for a friendly get-together with the Sandinista president, Daniel Ortega. The position of the Reagan administration was to support the opposition Contras. Kerry wasn’t much interested in the administration’s position. Upon his return to the United States, Kerry met with President Reagan to convey a message from Ortega. Reagan “wasn’t thrilled,” Kerry later told the New York Times. This week, it’s Kerry’s turn to be less than thrilled.
Kerry, of course, is now secretary of state. Two other examples involved Kerry’s fellow Massachusetts Democrat, Ted Kennedy. In 1979 Sen. James Abourezk of South Dakota went to Tehran at Kennedy’s “behest”:
The Iran hostage crisis was generating public sympathy for President Jimmy Carter, making it difficult for Kennedy to gain traction in his campaign for the Democratic presidential nomination. Kennedy hoped Abourezk, an Arab-American, could negotiate a release of the hostages, and thus deprive Carter of the political advantage.
And in 1984 “Kennedy proposed to visit Moscow in order to help Soviet leaders craft more effective ‘explanations’ to use against the Reagan administration concerning nuclear disarmament issues”:
He also offered to arrange U.S. television appearances for Soviet Premier Yuri Andropov to make a “direct appeal” to the American people that would undermine the administration. Kennedy evidently hoped these efforts would increase the Democrats’ chances of retaking the White House that year.
Another claim is that the senators have committed a crime—specifically, that they have violated the Logan Act of 1798, which provides:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Even the liberal New Republic scoffs at this. Lawyer Cristian Farias notes that the Logan Act hasn’t been enforced since 1803 and that it “likely violates the First Amendment”—especially in this case, in which the “correspondence or intercourse” is an open letter.
Then there is the suggestion—from surprisingly respectable sources—that the senators are unpatriotic. “A formidable number of congressional Republicans hate President Obama more than they love America,” asserts Leslie Gelb, president emeritus of the Council on Foreign Relations.
The Daily News, a New York tabloid, is even more truculent: Its front page Tuesday shouted TRAITORS and featured four of the signatories (Majority Leader Mitch McConnell, Ted Cruz, Cotton and Rand Paul). Neither that day’s news story nor the editorial used the T-word (though the editorial called the letter “treachery”), but a follow-up did, reporting: “Twitter has turned on the nation’s 47 traitors.”
This would be outrageous if it weren’t so silly. The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It’s not as if the letter-writers’ objective is to help the Iranians get nuclear weapons. Even Fisher admits the “treason” charge is ridiculous.
Today’s New York Times weighs in with an editorial of its own, more subdued than the News’s but obstreperous by broadsheet standards. The headline is “Republican Idiocy on Iran,” and the editorialists unpack their adjectives to describe the letter as “disgraceful,” “irresponsible” and “bumbling.” The Times, like the Journal, raises the prospect that the letter will prove counterproductive from the GOP standpoint:
Before this, the thinking was that the two bills most in play—one that would increase sanctions on Iran and another that would force the administration to bring any agreement to Congress for a review—might draw enough Democratic support to override a veto by President Obama. Both measures would surely scuttle a deal, but the Republicans’ actions may have set back their senseless cause.
The Times is steadfast in its opposition to setting back senseless causes.
But then again, the letter might prove to have been constructive. On Tuesday Tim Mak of the Daily Beast filed a story—much criticized among conservatives—titled “Republicans Admit: That Iran Letter Was a Dumb Idea.” Yesterday he did an about-face: “Obama Administration Falls Into GOP’s Iran Letter Trap.”
“The Republicans’ much-maligned open letter to Tehran has forced the White House to admit an uncomfortable truth: The deal might not outlast the Obama presidency,” Mak wrote in the latter piece. Testifying before the Foreign Relations Committee yesterday, Kerry acknowledged: “We’re not negotiating a, quote ‘legally binding plan.’ ” Which was exactly the point of the letter.
The letter may yet turn out to be a strategic mistake, but at least as a tactical matter the Democrats badly botched their response to it. By contrast, Republicans have largely heeded the advice not to overreach in response to Mrs. Clinton’s email scandal. Liberal media bias sometimes encourages Democrats to be bold and Republicans timid. But that can also mean Republicans are prudent and Democrats reckless.
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