The president does have some sanctioning power and he can remove sanctions that he or past presidents have imposed. If it does, then the approval of Congress in the removal of such sanctions will be required. So even if it does not formally meet the definition of a treaty, this agreement should require some form of approval by the legislative branch, particularly if it is to remain an enduring part of American foreign policy.Īnother factor that impacts the role of Congress is whether the agreement requires Congress to remove existing sanctions that were put in place by congressional action. The law is anything but clear as to what makes a bilateral or multilateral agreement a treaty, but this one has elements that are treaty-like in its content. That of course is a knife that cuts both ways, because treaties are binding until formally revoked, whereas executive agreements can be undone by future presidents. The Obama administration has taken the position that this is merely an executive agreement and not a treaty. If it does, then it requires the formal ratification of the Senate. Who gets the final word? That depends on several factors.įirst, of course, is whether the deal negotiated by the president constitutes a “treaty,” within the meaning of the constitution. No agreement has yet been reached, but assume, for argument’s sake, that the president negotiates a deal with which a majority of Congress fundamentally disagrees. Turning to the deal with Iran over nuclear weapons, there are sharp disagreements between the executive branch and the legislative branch over the merits of what appears to be the deal now on the table. But Congress has a say in whether to approve what the president has negotiated. As the head of the executive branch, he gets to negotiate treaties, agreements and other bilateral and multilateral deals. So let’s describe the president by his actual constitutional role: the head of the executive branch of our tripod government that stands on three equal legs. Military metaphors are as inappropriate in a democracy as is martial law, which does empower the executive to act as the commander of all people, but only in cases of extreme emergency. But it is dangerous rhetoric, because it suggests a concentration, rather than a division, of power. To be sure when politicians call our president the “commander-in-chief,” they are using that term rhetorically. The armed forces are different: power is vested in one commander-in-chief. But our Constitution separates the powers of government-the power to command-into three co-equal branches. Were he the “commander-in-chief” of our country-as Putin is of Russia or as Ali Khamenei is of Iran-he could simply command that all of these things be done. And he cannot terminate sanctions that were imposed by Congress without Congress changing the law.

He cannot appoint ambassadors without the consent of the Senate. He cannot make a treaty without the approval of 2/3 of the Senate.

When he is involved in “high-stakes international diplomacy,” his involvement is not as commander-in-chief of our armed forces, but rather as negotiator-in-chief, whose negotiations are subject to the checks and balances of the other branches.Īs president, he cannot even declare war, though he can decide how a war should be fought after Congress declares it. The president is not the commander-in-chief of our nation’s foreign policy. This important limitation on the president’s power is highly relevant to the current debate about Congress having the authority to check the president’s decision to make the deal, currently being negotiated with Iran.

The only people he is empowered to command are soldiers, sailors and members of the militia-not ordinary citizens. The president is only the commander-in-chief of “the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This provision was intended to assure civilian control over the military and to serve as a check on military power. This is a misreading of our constitution, which creates a presidency that is subject to the checks and balances of co-equal branches of the government. This characterization mistakenly implies that President Obama-or any president-is our commander, and that his decisions should receive special deference. “Either these senators were trying to be helpful to the Iranians or harmful to the commander-in-chief in the midst of high-stakes international diplomacy.”īut the president is not the commander-in-chief for purposes of diplomatic negotiations. Most recently Hillary Clinton, who I admire, said the following about Republican senators who wrote an open letter to Iran: Politicians should stop referring to the President of the United States as “the commander-in-chief,” as he is often referred to.

President being commander in chief