Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly.
Without consulting you, Smith is busy negotiating a contract with Macropus International Corp., a company notorious for unscrupulous practices. Smith has made it clear he plans to bind your firm whether you like it or not. You know that under the law of general partnerships, unless you speak up Smith will be able to lock you and your firm into a very bad deal. This is because, as a rule, any partner in a general partnership has authority to bind the other partners and their firm to agreements with third parties.
Even if you raise your concerns to Smith personally and tell him not to sign anything without consulting you first, you still could be bound to Macropus if Smith disregards your admonition. The legal doctrine of “apparent authority” provides that if one person (you) puts another (Smith) in a position that communicates to third parties (such as Macropus) that the second person (Smith) can bind the first (you), the third party (Macropus) is entitled to assume that he can.
In these circumstances, the only way you can protect yourself is to notify Macropus before the contract is signed that Smith does not have authority to enter into it.
That’s why the letter from 47 U.S. Senators to the leaders of Iran was absolutely necessary and appropriate. Indeed, all 100 Senators should have signed it.
Although the law of general partnerships is not applicable directly to international relations, it helps us understand the issues here. Under our Constitution, the President is the “managing partner” in the treaty process: He is charged with negotiating and formally “making” treaties. But the Founders made the carefully considered decision to require approval by two thirds of the Senate. This was a change from the British system, under which the king could make treaties unilaterally, and rendered the Senate a partner in the process. And if money must be appropriated to finance the pact, the entire Congress becomes a partner in the process as well.
Like Smith in negotiating with Macropus, President Obama signaled that he planned to bypass the Senate. From the Iranian point of view, this was not necessarily a problem, since, as Iranian Foreign Minister Mohammad Javad Zarif has pointed out, the U.S. sometimes acquiesces to executive agreements without Senate approval.
To be sure, as a matter of correct interpretation the President’s constitutional authority to bind the U.S. by executive agreement is quite limited, but the Iranians cannot be expected to understand the nuances of American constitutional and judicial history. This is illustrated by Zarif’s further suggestion that an agreement negotiated by Obama alone would represent a U.S. “obligation.” He is mistaken, of course; a country is not obligated by an agreement when the other party knew the putative agent who entered the agreement actually had no authority to do so.
Under the circumstances, Iran could assume that the President could bind the U.S. to an agreement unless the Senate, or at least a large number of Senators, spoke up. Otherwise, Iran could, with some justification, claim a breach of international law if the United States refused to be bound by the deal between Iran and the Obama administration. As a result of the Senators’ letter, however, Iran is on formal notice of the truth.