Negotiating Iran's Nuclear-Weapons Program: What 47* Senators Don't Know

03/12/2015 08:49 am ET | Updated May 12, 2015

As we all know by now, on March 9, Senator Tom Cotton, joined by 41 of his Republican colleagues in the Senate (*news reports say 47, but the letter as put on online only has 42 signatures), wrote "An Open Letter to the Leaders of the Islamic Republic of Iran." Therein they said, among various morsels, that Iranian leaders do not understand our constitutional system, specifically the specifics of the power to make binding international agreements and the different character of federal offices.

The letter then goes on to state that while the president negotiates international agreements, our Congress (nay, Senate) must ratify them by a two-thirds vote. It further describes the congressional process. It then says that while President Obama leaves office in 2017, most of the signers of the letter will remain in office, "perhaps decades." What is more amazing -- and has been reported throughout the media world extensively -- is that 42 (47?) United States senators tell the leaders of Iran that what President Obama is doing in his negotiations regarding Iran's nuclear-weapons program is nothing more than an executive agreement between him and Ayatollah Khamenei, and that the next president could revoke such an agreement and future Congresses could modify the terms of any such agreement.

Sure sounds like 42 (47?) Republican Senators have made themselves part of the ongoing negotiations over Iran's nuclear-arms program.

Now, juxtapose the contents of this March 9 letter with the 1936 United States Supreme Court case of U.S. v. Curtis-Wright Export Corporation, 299 U.S. 304. This was a case involving a criminal indictment based on a conspiracy to sell arms of war in the U.S. to a foreign government (15 machine guns to Bolivia, which was engaged in armed conflict in the Chaco), in violation of a joint resolution of Congress and a proclamation issued by then-sitting-President Franklin D. Roosevelt. The court's decision brought into focus the relationship of two of the three branches of government. It is an exquisite exposition of events predating the forming of the Union, the sovereignty of the states, the operation of the federal government, and what office relates to foreign nations. Justice Sutherland writes for the court, in pertinent part (emphasis mine):

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate, but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows:

The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiations may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch. 8 U.S. Senate Reports Comm. on Foreign Relations, p. 24.

Senator Cotton, perhaps you (foolishly) went ahead without knowing the words of Justice Sutherland. And you others, perhaps you fell in line like sheep, not knowing what you as senators could or should be doing when our president is negotiating with a foreign nation, even one like Iran. What a mess you senators have made for the nation!