Executive Agreements, Iran, and Missouri v. Holland

So. A bunch of Republican Senators have apparently written an "open letter" to the government of Iran regarding negotiations currently taking place between Iran and various Western countries, including the United States. This is, shall we say, highly improper. It would rather easily answer to the description "unconstitutional," in a vague, amorphous sense (obviously there's nothing for a court to review or invalidate, but the letter is pretty clearly inconsistent with an overall constitutional structure in which the President is given primary responsibility for diplomacy, out of a felt need for the nation to speak with one voice in foreign affairs). Arguably it also at least skirts the line of being illegal, under the Logan Act of 1799, which bans unauthorized citizens from corresponding with foreign governments to try to influence their behavior toward the U.S. (Although obviously the Obama Administration is not going to prosecute these Republican Senators for this offense, even if they're guilty of it: prosecuting your political opponents, generally not great politics. Also the law is of dubious constitutionality (and they could easily have mooted the whole issue by just reading their "open letter" into the Congressional record, invoking the Speech and Debate privilege, which is absolute).)

But that's not the point, of this blog post at least. Rather, what interests me about the letter is the way it helps tie together some thoughts I've been having of late about "executive agreements." Because that's the main thrust of the letter, which purports to explain certain "features of our constitution" which Iran should keep in mind while negotiating. By this they mean the esoteric fact, which surely the leaders of Iran have never encountered before, that the United States has the world's worst treaty ratification system, requiring a two-thirds vote in the Senate that is basically impossible to obtain even on totally uncontroversial things. This means, the Senators accurately note, that any agreement reached in the present negotiations will be a mere "executive agreement," which, they note, a new President could revoke unilaterally. This is, if you take it on its face, a pretty majestic display of concern-trolling: it's not that the Senate Republicans are opposed to the deal (which would make it a little tougher to deny the Logan Act violation), they're just concerned for the poor Iranian government, which might find itself being misled by that nasty Obama into thinking it has a binding agreement, and might do something like act in reliance on that belief, only to find that, in fact, the next President pulls the rug out from under them. We wouldn't want that, now would we.

But of course, they are right: the deal would only be an executive agreement (because we all know that these same 47 Republicans would vote against ratifying the treaty that will never be drafted, let alone presented to the Senate, before they even read its language (which is why it will never be drafted)). So... what? What exactly are executive agreements, in the constitutional structure? How are they different from treaties? Are those differences relevant from Iran's standpoint? (Spoiler alert: the answer to that last one is "no.") Like probably most people who've ever heard the phrase, I first learned about "executive agreements" in my high school civics class (okay, it was AP U.S. Government, which might explain why we learned about executive agreements...), and have always had the general sense that they're just this thing, this informal treaty-like thing, that doesn't require Senate ratification but also therefore in some vague way doesn't have the same kind of force of law. That way of discussing them leads to the feeling that there's something vaguely unsettling or illegitimate about them. But there isn't, and seeing why requires merging the great big lesson of a class I'm taking this semester, Administrative Law, with the great case Missouri v. Holland.