According to Miles’s Law, “where you stand depends on where you sit.” And so when Vice President Joe Biden hyperventilates over Republican senators’ criticism of the Obama administration’s negotiations with Iran, we must take him with a grain of salt. He used to have a seat in the Senate; now he stands behind President Obama.
Nevertheless, when the ex-senator and former Senate Foreign Relations Committee chairman condemns his successors for daring simply to point out that any substantive agreement with Iran will not become a binding treaty without Senate consent, it is hard not to chuckle. For when presidents were Republican and Senates were Democrat, Senator Biden sang a significantly different tune.
Writing in 1989 on the “constitutional partnership” between presidents and senators, then-Senator Biden invoked “the wisdom of the Founding Fathers” for a much less restrained Senate under the Constitution’s treaty power.
“Among the Framers,” Biden argued, “it was Alexander Hamilton who, though renowned as the leading advocate of a strong presidency, stressed that it would have been ‘utterly unsafe and improper’ to entrust the power of making treaties to the president alone.” (Emphasis added.)
He then quoted “Hamilton’s most famous dictum,” in Federalist 75, on the treaty power:
“The essence of the treaty power,” Biden concluded, “is that the president and the Senate are partners in the process by which the United States enters into, and adheres to, international obligations.”
Back then, Senator Biden was taking a victory lap for having convinced the Senate to limit its approval of President Reagan’s treaty with the Soviet Union on Intermediate-Range Nuclear Forces, by attaching a “condition” that would require the executive branch to defer to the Senate’s interpretation of the treaty’s terms.
But the condition—which, with characteristic modesty, Biden called “the Biden Condition”—did even more than that. As Senator Biden put it in 1989, the Senate’s move did nothing less than “repudiate decisively” the Reagan administration’s theory of the president’s diplomatic authority under the Constitution.
We need not go back a quarter-century to catch Biden in a moment of astonishing hypocrisy. Just seven years ago, in 2008, Senator Biden complained loudly against the suggestion that President George W. Bush might sign a status-of-forces agreement with Iraq without Senate consent. In a positively Cotton-eque letter to the White House, Senator Biden told President Bush that the president could not purport to bind the nation without the Senate’s consent:
… “[T]he means of a democracy are its ends; when we set aside democratic procedures in making our foreign policy, we are undermining the purpose of that policy.” I expect that the Committee will review this issue in hearings next year, and look forward to close consultation with your Administration. In advance of such hearings, I would welcome a clarification from you on the scope of the agreement you are considering, and the specific security assurances and commitments that it might entail. I would also appreciate a definitive statement from you affirming that Congress must authorize or approve any “security commitments” the United States negotiates with Iraq.
So when Biden complains, twenty-five years later, that the senators’ assertion of the Senate’s constitutional treaty powers would “undermine the ability of” President Obama and his successors to conduct foreign affairs, perhaps he means this as a very subtle compliment. Were he in their shoes, he probably would have done the same thing.
Come to think of it, he did. Repeatedly.
