The Iran Negotiations and Non-Binding Agreements
Michael Ramsey
At Just Security, Jack Goldsmith and Marty Lederman argue that (a) the Iran agreement is expected to be a non-binding agreement, and (b) non-binding agreements come within independent presidential powers under the Constitution. I agree with both points, but I think substantial concerns remain.
Taking the second point first, here is the originalist argument. Article II, Section 2 gives the Senate shared power over treaties, which were understood as (at least) important long term agreements that bound the United States under international law. At minimum, the overwhelming negative implication of the treatymaking clause is that the President alone cannot make important long term agreements that bind the United States under international law. There may be other ways to bind the United States under international law -- Duncan Hollis has a useful "primer" at Opinio Juris, and for now I am forbearing on a reply to co-blogger Andrew Hyman on congressional-executive agreements. But for now the key is that the President alone cannot make something that would be considered a "treaty" under eighteenth-century international law. (If the constitutional language isn't enough, the founding-era commentary is overwhelming -- see sources collected at 77 N. Carolina L. Rev. 133).
But a non-binding agreement (otherwise known as a "political commitment") is not a treaty. The core characteristic of a treaty in eighteenth-century international law (as today) was that it was binding. Article II, Section 2 does not preclude non-binding agreements. Nor does anything else in the Constitution directly mention them.
So who has power to make non-binding agreements? Article II, Section 1 vests the President with "executive Power." As I have argued extensively here, and also here [Chapter 3], in the eighteenth century "executive" power included diplomatic power (and generally power over interactions with foreign nations). Some of this "executive" power is taken away from the U.S. chief executive -- e.g., war power (to Congress) and treatymaking power (shared with the Senate). But other executive foreign affairs powers, not otherwise mentioned in the Constitution, remain part of the President's Article II, Section 1 power. Non-binding agreements (I might prefer to call them "diplomatic arrangements") are part of that power.
Now to the first point. It appears that the administration contemplates a non-binding agreement with Iran. As Professors Goldsmith and Lederman point out, at Monday's press briefing, the State Department spokeswoman (after some badgering) expressly characterized it that way. Further, she repeatedly used the term "political commitment," which is a technical synonym for a non-binding agreement. And finally, given the Constitution's overwhelming clarity that the President cannot make important binding agreements on his own authority, I see no plausible constitutional argument for his Iran strategy apart from the characterization of the agreement as non-binding. (It would be nice, though -- as Jennifer Rubin says here -- if the President's defenders were generally more clear on this point).
If this is correct, then the Senators' letter to Iran (whether or not appropriate) is basically accurate. As I noted earlier, it uses "executive agreement" instead of "non-binding agreement," but I think it intends the latter. Senator Cotton, the principal author, has this essay in USA Today accurately using the term "non-binding" in reference to the prospective agreement. (See also here from PolitiFact, finding the letter "mostly true"). Indeed, as I argued earlier, the biggest mistake of the letter is its implication that an agreement would be binding on President Obama, and only become revocable in the next administration; that's incorrect because a non-binding agreement is non-binding, period.
Finally, why do substantial concerns remain? Because it is not clear that the negotiations have the proper form and context for a non-binding arrangement. First, Iran seems to misunderstand what is being negotiated, apparently characterizing it as binding under international law. Second, although the State Department spokeswoman did finally say the word "non-binding," the briefing as a whole seems somewhat evasive. Third, some commentary has not focused as precisely as it should on binding versus non-binding agreements. And, most importantly, preliminary reports of the deal suggest that it might have an express long duration of perhaps 10 years.
The last point is highly problematic, and is at the heart of the Senators' letter. Giving an arrangement a fixed term -- especially a fixed term that extends far beyond the current President's time in office -- conveys a false impression of bindingness. Ultimately a non-binding agreement is a commitment by the particular President who makes it that that President will conform U.S. policy (to the best of his ability) to the approach agreed upon. Because the President's commitment has no status in international law, it has no claim upon a future President, or upon Congress. As a result, reference to a extended express fixed term is wholly out of place in a political commitment.
The point of the letter is precisely to correct the mis-impression that might be created by these circumstances, and especially the purported fixed term.