The Iran Treaty: an “Executive Agreement? Congress screwed up again!

Not this Congress, but previous Congresses passed two laws that allow the President to basically bypass Congress’ authority under Article 2, Section 2 – Advice and Consent on Treaties with two-thirds of the Senate approving.

The use of these two laws by the Executive Branch, the President and the Secretary of State to bypass Congress in the case of Iran may actually be in violation of these laws.  Apparently the basis for this end run of the Senate is the State Department’s Circular No. 175.  (http://www.state.gov/s/l/treaty/c175/)  The text follows at the end of the post.

Nowhere in the two laws or in the State Department procedure does it clearly state what is a treaty, thus allowing the State Department and the President to conduct business under International Agreements not as a Treaty, because the Secretary of State classifies the treaty as an International Agreement.  This is like giving the wolf the keys to the hen house.

The Congress has again delegated its sole responsibility under the Constitution to the Executive Branch in total violation of what the founders knew to be a critical control of the President in matters of international relations.

In this case, the Iran deal may not even meet the slim requirements of the laws to allow this deal to be treated as an International Agreement.

This is an end run and Congress again is complicit.    Is this because these laws and the current actions are created and managed by an inept Congress or an attempt by this and past Congresses to stay out of controversial international matters letting the President take the blame for matters that “blow up” so to speak.

This Iran International Agreement is not founded under the two laws and the State Department Circular and someone, maybe a Senate patriot, needs to stand up and denounce it as unconstitutional.


The Circular 175 procedure refers to regulations developed by the State Department to ensure the proper exercise of the treaty-making power. Its principal objective is to make sure that the making of treaties and other international agreements for the United States is carried out within constitutional and other appropriate limits, and with appropriate involvement by the State Department. The original Circular 175 was a 1955 Department Circular prescribing a process for prior coordination and approval of treaties and international agreements. This title has been retained; the applicable procedures are now contained at 11 FAM 720 .

There are two kinds of Circular 175 requests. One calls for the approval of full powers to sign treaties that the President will send to the Senate for advice and consent to ratification. Since under international law full powers may be issued only by heads of State and Foreign Ministers, approval of full powers is not a delegable function.

The more typical Circular 175 request is an action memorandum from a bureau or office in the State Department to a Department official at the Assistant Secretary level or above, requesting authority to negotiate, conclude, amend, extend, or terminate an international agreement. The memorandum may request –

  • authority to negotiate and/or conclude;
  • authority to extend and/or amend; or
  • authority to terminate/withdraw from

an international agreement. The memorandum should set forth the issue for decision; the principal features of the proposed agreement; any special problems that may be encountered along with any contemplated solutions to those problems; and policy benefits to the United States of the requested action. It also should address whether there will be congressional consultations and whether an environmental impact assessment is needed. Where a proposed agreement involves commitments of resources beyond those authorized by approved budgets, the matter must be addressed.

The action memorandum should be accompanied by any texts to be negotiated or concluded, and generally a memorandum of law discussing thoroughly the legal bases for the agreement. Background information or additional detail may be included as attachments. The memorandum is cleared by all interested federal agencies and by relevant offices within the State Department. In certain circumstances, the Office of Treaty Affairs may conclude that a blanket authorization is appropriate where a series of agreements of the same general type are to be negotiated according to a more or less standard formula.

The thoroughness and care devoted to the Circular 175 procedure is designed to ensure –

  • that approval for the negotiation and conclusion of all international agreements is obtained at appropriate policy levels;
  • that agencies or offices having responsibility for any aspect of the subject matter involved have approved the negotiation and, prior to conclusion, the text of the agreement;
  • that any issues that might arise between the Congress and the executive, and any questions regarding the use of the treaty power, are resolved; and
  • that adequate legal authority for each treaty or executive agreement exists.

Further, the Circular 175 procedure assists the State Department in transmitting to the Congress pursuant to the Case-Zablocki Act ( 1 U.S.C. 112b) [hot link] the text of any international agreement other than a treaty to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter.

The Circular 175 procedure does not apply to documents that are not binding under international law. Thus, statements of intent or documents of a political nature not intended to be legally binding are not covered by the Circular 175 procedure. The determination whether a document is or is not an international agreement must be made by the Office of the Legal Adviser at the State Department.

 

1 U.S. Code § 112a – United States Treaties and Other International Agreements; contents; admissibility in evidence

  •  112a.

United States Treaties and Other International Agreements; contents; admissibility in evidence

(a)

The Secretary of State shall cause to be compiled, edited, indexed, and published, beginning as of January 1, 1950, a compilation entitled “United States Treaties and Other International Agreements,” which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evidence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

(b) The Secretary of State may determine that publication of certain categories of agreements is not required, if the following criteria are met:

(1)

such agreements are not treaties which have been brought into force for the United States after having received Senate advice and consent pursuant to section 2(2) of Article II of the Constitution of the United States;

(2)

the public interest in such agreements is insufficient to justify their publication, because (A) as of the date of enactment of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, the agreements are no longer in force,[1] (B) the agreements do not create private rights or duties, or establish standards intended to govern government action in the treatment of private individuals; (C) in view of the limited or specialized nature of the public interest in such agreements, such interest can adequately be satisfied by an alternative means; or (D) the public disclosure of the text of the agreement would, in the opinion of the President, be prejudicial to the national security of the United States; and

(3)

copies of such agreements (other than those in paragraph (2)(D)), including certified copies where necessary for litigation or similar purposes, will be made available by the Department of State upon request.

(c)

Any determination pursuant to subsection (b) shall be published in the Federal Register.

(d)

The Secretary of State shall make publicly available through the Internet website of the Department of State each treaty or international agreement proposed to be published in the compilation entitled “United States Treaties and Other International Agreements” not later than 180 days after the date on which the treaty or agreement enters into force.

(Added Sept. 23, 1950, ch. 1001, § 2, 64 Stat. 980; amended Pub. L. 103–236, title I, § 138, Apr. 30, 1994, 108 Stat. 397; Pub. L. 108–458, title VII, § 7121(a), Dec. 17, 2004, 118 Stat. 3807.)

[1]  So in original. The comma probably should be a semicolon.

References in Text

The date of enactment of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, referred to in subsec. (b)(2)(A), is the date of enactment of Pub. L. 103–236, which was approved Apr. 30, 1994.

Amendments

2004—Subsec. (d). Pub. L. 108–458 added subsec. (d).

1994—Pub. L. 103–236 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).

Effective Date of 2004 Amendment

Pub. L. 108–458, title VII, § 7122, Dec. 17, 2004, 118 Stat. 3808, provided that:

“Notwithstanding any other provision of this Act [see Tables for classification], this subtitle [subtitle A (§§ 7101–7122) of title VII of Pub. L. 108–458, enacting sections 2228, 2732, 3922b, 4029, 7536a, and 7555 of Title 22, Foreign Relations and Intercourse, amending this section, section 112b of this title, section 1189 of Title 8, Aliens and Nationality, sections 2651a, 2656f, 4003, 7513, 7514, 7518, 7536, 7537, 7538, and 7554 of Title 22, and section 2405 of Title 50, Appendix, War and National Defense, repealing section 2374 of Title 22, enacting provisions set out as notes under section 1189 of Title 8, sections 1431, 2451, 2452, 2651a, 2656, 2656f, 7501, 7511, 7513, 7514, and 7536 of Title 22, and section 2405 of Title 50, Appendix, and amending provisions set out as a note under section 112b of this title] shall take effect on the date of enactment of this Act [Dec. 17, 2004].”

Effect of Repeal of Section 73 of Act Jan. 12, 1895

This section and section 112 of this title as not affected by the repeal of section 73 of act Jan. 12, 1895, ch. 23, 28 Stat. 615, which related to the same subject matter, see section 56(i) of act Oct. 31, 1951, ch. 655, 65 Stat. 729.

Written Requests for Documents

Copies of United States Treaties and Other International Agreements not available to Senators or Representatives unless specifically requested by them, in writing, see Pub. L. 94–59, title VIII, § 801, July 25, 1975, 89 Stat. 296, set out as a note under section 1317 of Title 44, Public Printing and Documents.

This is a list of parts within the Code of Federal Regulations for which this US Code section provides rulemaking authority.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

Hide 22 CFR – Foreign Relations

22 CFR Part 181 – COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL AGREEMENTS

 

LII has no control over and does not endorse any external Internet site that contains links to or references LII.

 

1 U.S. Code § 112b – United States international agreements; transmission to Congress

  •  112b.

United States international agreements; transmission to Congress

(a)

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

(b)

Not later than March 1, 1979, and at yearly intervals thereafter, the President shall, under his own signature, transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a report with respect to each international agreement which, during the preceding year, was transmitted to the Congress after the expiration of the 60-day period referred to in the first sentence of subsection (a), describing fully and completely the reasons for the late transmittal.

(c)

Notwithstanding any other provision of law, an international agreement may not be signed or otherwise concluded on behalf of the United States without prior consultation with the Secretary of State. Such consultation may encompass a class of agreements rather than a particular agreement.

(d)

(1) The Secretary of State shall annually submit to Congress a report that contains an index of all international agreements, listed by country, date, title, and summary of each such agreement (including a description of the duration of activities under the agreement and the agreement itself), that the United States—

(A)

has signed, proclaimed, or with reference to which any other final formality has been executed, or that has been extended or otherwise modified, during the preceding calendar year; and

(B)

has not been published, or is not proposed to be published, in the compilation entitled “United States Treaties and Other International Agreements”.

(2)

The report described in paragraph (1) may be submitted in classified form.

(e)

(1)

Subject to paragraph (2), the Secretary of State shall determine for and within the executive branch whether an arrangement constitutes an international agreement within the meaning of this section.

(2)

(A)

An arrangement shall constitute an international agreement within the meaning of this section (other than subsection (c)) irrespective of the duration of activities under the arrangement or the arrangement itself.

(B) Arrangements that constitute an international agreement within the meaning of this section (other than subsection (c)) include the following:

(i)

A bilateral or multilateral counterterrorism agreement.

(ii)

A bilateral agreement with a country that is subject to a determination under section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)), section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)), or section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)).

(f)

The President shall, through the Secretary of State, promulgate such rules and regulations as may be necessary to carry out this section.

(Added Pub. L. 92–403, § 1, Aug. 22, 1972, 86 Stat. 619; amended Pub. L. 95–45, § 5, June 15, 1977, 91 Stat. 224; Pub. L. 95–426, title VII, § 708, Oct. 7, 1978, 92 Stat. 993; Pub. L. 103–437, § 1, Nov. 2, 1994, 108 Stat. 4581; Pub. L. 108–458, title VII, § 7121(b)–(d), Dec. 17, 2004, 118 Stat. 3807, 3808.)

Amendments

2004—Subsec. (a). Pub. L. 108–458, § 7121(b), substituted “Committee on International Relations” for “Committee on Foreign Affairs”.

Subsec. (d). Pub. L. 108–458, § 7121(c), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 108–458, § 7121(d), designated existing provisions as par. (1), substituted “Subject to paragraph (2), the Secretary of State” for “The Secretary of State”, and added par. (2).

Pub. L. 108–458, § 7121(c)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 108–458, § 7121(c)(1), redesignated subsec. (e) as (f).

1994—Subsec. (a). Pub. L. 103–437 substituted “Committee on Foreign Affairs” for “Committee on International Relations”.

1978—Pub. L. 95–426 designated existing provisions as subsec. (a), inserted “(including the text of any oral international agreement, which agreement shall be reduced to writing)”, and added subsecs. (b) to (e).

1977—Pub. L. 95–45 substituted “Committee on International Relations of the House of Representatives” for “Committee on Foreign Affairs of the House of Representatives” and inserted requirement that any department or agency of the United States Government which enters into any international agreement on behalf of the United States transmit to the Department of State the text of such agreement not later than twenty days after the agreement has been signed.

Change of Name

Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Short Title

This section is popularly known as the Case-Zablocki Act.

Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which the report required by subsec. (b) of this section is listed on page 38), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

Enforcement

Pub. L. 100–204, title I, § 139, Dec. 22, 1987, 101 Stat. 1347, as amended by Pub. L. 108–458, title VII, § 7121(e), Dec. 17, 2004, 118 Stat. 3808, provided that:

“(a)Restriction on Use of Funds.—

If any international agreement, whose text is required to be transmitted to the Congress pursuant to the first sentence of subsection (a) of section 112b of title 1, United States Code (commonly referred to as the ‘Case-Zablocki Act’), is not so transmitted within the 60-day period specified in that sentence, then no funds authorized to be appropriated by this or any other Act shall be available after the end of that 60-day period to implement that agreement until the text of that agreement has been so transmitted.

“(b)Effective Date.—

Subsection (a) shall take effect 60 days after the date of enactment of the 911 [probably means 9/11] Commission Implementation Act of 2004 [Dec. 17, 2004] and shall apply during fiscal years 2005, 2006, and 2007.”

This is a list of parts within the Code of Federal Regulations for which this US Code section provides rulemaking authority.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

Hide 22 CFR – Foreign Relations

22 CFR Part 181 – COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL AGREEMENTS

 

LII has no control over and does not endorse any external Internet site that contains links to or references LII.

 

 

 

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