The following is adapted from a speech delivered on September 15, 2015, at Hillsdale College’s Sixth Annual Constitution Day Celebration in Washington, D.C.
Under President Obama, there has been considerable drift away from all three of these principles. And that drift has contributed to the general drift of U.S. foreign policy. Even former President Carter has said, “I can’t think of many nations in the world where we have a better relationship now than when he took over.” Our interests are threatened, our alliances are stressed, our honor is stained, and our adversaries are increasingly tempted into new episodes of adventurism and aggression.
The most recent example of this drift is the Iran nuclear deal. This is a major arms-control agreement with a mortal enemy—an enemy with the blood of thousands of Americans on its hands, and for whom “death to America” is a foreign-policy bedrock. And the agreement goes to the heart of the gravest threat facing the world: a terror-sponsoring state armed with nuclear weapons. It is precisely the type of agreement that the Founders intended to be tested and refined by the treaty process. It is precisely the type of agreement implicating matters of war and peace that must be supported by a widespread consensus of the American people.
But the President didn’t submit the Iran nuclear deal as a treaty. From the beginning, his intention was to circumvent the people’s representatives and obligate the U.S. to the ayatollahs by a mere executive agreement. Instead of rallying two-thirds of the Senate to support the deal, he relied on a tiny, partisan minority to protect his executive agreement from the judgment of the American people.
This is dangerous and nearly unprecedented. Executive agreements are and should be reserved for technical matters. Among the first executive agreements in our history were the 1792 agreements between the United States and other nations to coordinate mail delivery. Executive agreements have also traditionally been used to assign claims and debts between nations. These issues are low-stakes, and are not breeding grounds for armed conflict. They are akin to deciding whether cars will drive on the right or left side of the road. That’s why they do not need to be tested by a supermajority vote.
Nuclear weapons agreements are different. The dividing line between subjects reserved for treaties and subjects reserved for less formal scrutiny is not precise at the margins. But this isn’t anywhere near the margins. Historically, major arms control agreements that bind the U.S. have almost invariably been reached through treaty. One notable exception was the Agreed Framework with North Korea negotiated under President Clinton in 1994, which aimed at keeping North Korea from becoming a nuclear power. I doubt President Obama would like to cite the North Korea case as precedent—although it surely is a precedent in its contempt for Congress, and likely in its failure as well.
Why did President Obama ignore the Treaty Clause? The answer is stunning. Secretary of State Kerry lamented in testimony to Congress that it is “physically impossible” to get a treaty through the Senate in these polarized times. Of course, this logic could apply to any politically inconvenient part of the Constitution. Moreover, Secretary Kerry must have forgotten that, as chairman of the Senate Foreign Relations Committee, he guided a nuclear arms control treaty with Russia to ratification less than five years ago.
The simple fact is that the President ignored the Constitution because he knew the Senate would reject his deal. This disregard for the Treaty Clause is the height of hubris. It mistakes tunnel vision for principle, closed-mindedness for superior wisdom, and personal legacy for the vital national interest. The nuclear deal with Iran is a travesty, one that betrays our close friend Israel, provides billions for Iran’s campaign of terror, and paves the way for Iran to obtain nuclear weapons capability.
Besides the immediate damage to our national security, the deal also damages the foundational principle that major foreign commitments should be backed by a broad consensus of the people as reflected by Congress. This episode, added to the North Korea example, will make it extremely tempting for future presidents to avoid the expenditure of political capital required to pass a treaty. Presidents will be tempted to reach expedient deals on momentous issues, deals that divide rather than unite the nation.