My entire adult life I have listened to Republicans piously lecture the American people about the important of the Constitution, and deference to the “original intent” of the nations “Framers,” or those men who drafted the Constitution. Well, apparently that was all a bunch of crap. With the recent letter to the leaders of Iran, 47 Senators clearly state that the Framers should be ignored, and clearly prove that these claims of deference to the Framers and belief in original intent is nothing more than political expediency.
The Constitution is clear. The President has the power to negotiate treaties. It is also clear that those treaties do not go into effect until approved by a two-thirds majority of Senators present. The specific provision of the Constitution, Art II, Sect. 2 states: The President... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
When this provision was discussed during the Constitutional Convention delegates suggested some amendments. James Madison suggested two amendments. First he wanted the section to specifically include “treaties of peace.” Second, he suggested that the Senate have the authority to enact treaties of peace “without the concurrence of the President.” These suggestions were put to a vote and rejected. Then George Mason suggested that a “Council of State” be established to advise the President in matters of foreign relations. This too was rejected by the delegates. The Constitutional Convention, September 7, 1789. So the “Framers” considered a greater role for the Senate in making treaties, but this idea was rejected.
The issue was discussed in a number of the Federalist papers. In No. 64, by John Jay, the power of the Senate was discussed, including the power to advise and consent on treaties. “It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. … The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.” Federalist No. 64. In other words, the President has absolute authority to “negotiate” the treaty, but must then submit it to the Senate for its consent.
The power to make treaties is the sole subject of No. 75, by Alexander Hamilton. Hamilton notes that there are three common objections to this provision: that it mixes powers between the Senate and the President, that the President alone should have the power, and that the Senate alone should have the power. He begins by noting that a treaty is neither a purely executive function, because it is not about executing a law, or a legislative function, since it does not involved drafting of a law. It is a mixed function, and so authority over it is mixed. He does note that the President should have the authority to conduct the negotiations: “The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions.” He then discusses the role of the Senate in negotiating treaties: “To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations.” The Senate could appoint a minister, but “the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation.” Federalist No. 75.
The “Framers” clearly considered a larger role for the Senate in negotiating treaties, and clearly rejected the idea. The Framers original intent is clear. The President alone has the authority to negotiate treaties. So the Senate’s attempt to make an end run around the President in his negations with Iran clearly runs counter to the original intent of the Framers. So not only are these Senators out of control, they're hypocrites.