On Monday, Sen. Tom Cotton, R-Ark., joined by 46 other Republican senators, published an “open letter” to Iran and its government officials taking the position that an agreement with President Obama over Iran’s nuclear program may not be worth the paper it’s not yet printed on. Some commentators claim the letter violates the Logan Act, its publication is thus a crime, and, in any event, the views it presents are wrong on the merits. Those claims go a bridge too far.
The Logan Act
Let’s start with the Logan Act. That statute is likely a nonissue for (at least) three reasons: First, this was an “open letter” to Iran and its officials and therefore likely would not fall within the terms of the Logan Act.
That statute is concerned with someone who “directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof[.]” An open letter like this one does not “commence or carr[y] on any correspondence or intercourse” with a foreign government or official. Correspondence, for example, requires an exchange of communications. Here, there was no such back-and-forth. It is merely a statement of the opinion of several senators as to the legal effect under U.S. law of different types of international agreements.
Of course, it also reads as a thinly veiled statement of a possible intent to scuttle any such agreement if it turns out to be one that requires congressional approval. But even so it would not appear to fall within the text of the Logan Act. Finally, the act likely is designed to address “secret” communications even though that term does not appear in the statute.
Second, the Logan Act has to be read consistently with the First Amendment free speech clause. The Justice Department could not prosecute a university professor who publishes in an academic journal or The New York Times an article he’s written on nuclear weapons policy even if he does so with the hope a foreign government will read it. Accordingly, the Logan Act cannot be read as literally as its terms allow. Senators have free speech rights too, and they certainly would raise such an objection to any claim they violated the act.
Third, the senators who signed the letter also could be immune from prosecution under the speech or debate clause. They certainly would be immune if they inked their names on the floor of the Senate, agreed there to be added to the letter or submitted the letter into the Congressional Record. They probably also would be immune if they signed or agreed to the letter in the halls of a Senate office building (or any other Capitol Hill building) or in their Senate offices.
Steve Vladeck, a writer at Lawfare, says the desuetude doctrine—the laws not enforced for a long time become unenforceable—would bar a criminal prosecution under the Logan Act. He is mistaken. There is no such “laches” doctrine in federal criminal or constitutional law.
As the Supreme Court explained 60 years ago in District of Columbia v. John R. Thompson, Co., “[t]he failure of the executive branch to enforce a law does not result in its modification or repeal. . .The repeal of laws is as much a legislative function as their enactment,” and the modification or repeal of a law must comply with the same Article I Bicameralism and Presentment requirements necessary for it to have been enacted in the first place. (See Clinton v. New York.)
The Cotton letter also is sound on the merits. The Senate has to give its consent to a “treaty,” but not every international agreement can or should be so described. If the president and the British prime minister agree to take some type of action—say, putting more troops into a war that has already been authorized, such as Afghanistan—their agreement would not be deemed a treaty for purposes of the Senate’s advice and consent function.
It probably would be called an “executive agreement,” which need not be submitted to the Senate for ratification. A president also can repeal an executive agreement entered into by a predecessor, as the open letter states. What a president can create, a president can undo.
In addition, past administrations have taken the position that Senate consent is necessary for a treaty to go into effect but not for the president to rescind a treaty. The president has said he can do that on his own. In fact, President Bush repealed the Anti-Ballistic Missile treaty (on the grounds that the other signatory, the Soviet Union, no longer existed) and said that he did not need the Senate’s approval to do so. The Senate, of course, disagreed.
By contrast, if the president enters into an international agreement that requires a change in U.S. statutory law—say, an agreement with one of the Castro brothers to lift the statutory embargo on goods bound for Cuba—then the executive agreement cannot take effect unless and until the Senate and the House pass a bill to modify the relevant provision(s) in the U.S. Code. The president cannot unilaterally declare a law invalid unless he finds it to be unconstitutional.
Internationalists like to complicate the issue by arguing that the president and the Senate—or sometimes the president alone—can adopt agreements with a foreign nation that have an effect on domestic U.S. law. They say, for instance, presidents could enter into an agreement with foreign nations to ban handguns in this country.
That argument does not even come close to being reasonable. Put aside the fact that the Second Amendment guarantees the right to possess a handgun in one’s home. No president can displace the constitutional lawmaking process, however much he may wish that he could.
Unlike what King John thought or what Judge Dredd proclaimed, the president is not “the law.” The Constitution is the nation’s fundamental law, and the president is subject to it. The power to supplement the Constitution by legislation resides with Congress under Article I. The president enjoys only whatever authority the Constitution or Congress grants him.
His principal domestic power is not to make the law, but to enforce it, which Article II signifies by directing the president to “take care that the laws be faithfully executed.”