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When a Law Isn't Used for Lawyering Should it Be a Law?

If it looks like a law, and reads like a law, it’s probably a law; but that doesn’t mean it’s going to be used like one. There has been a great deal of rhetoric surrounding an open letter penned by Republican Senators criticizing a potential nuclear agreement between President Barack Obama and Iran, with both sides of the isle making political and policy claims and accusations.

Critiques of the letter range from "this is a terrible idea" to "these guys are real American heroes." Taken one step further, you also have both sides debating if the Senators broke a law that has sat dormant for centuries. And, seemingly lost in the conversation about the Logan Act, the law in question and heart of the matter, is the fact that the law has never been responsible for the criminal punishment of anyone since it was enacted more than 200 years ago.

The Logan Act forbids meddling in international affairs by those “without authority of the United States,” as the Senators have been accused. So, the narrative of the fallout from the letter has turned toward what Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution calls “political theatre.”

McConnell said this law has never been enforced and, in fact, “there are quite a lot of laws on the books that are never enforced.” He noted that the Espionage Act also falls into the category of dormant legislation.

Even if Logan had teeth, he said the merits to prosecute are weak based on First Amendment protections as well as the “speech or debate” clause of the Constitution, which essentially provides immunity from criminal charges for Congress when acting in their legislative capacity. He added the crux of the letter- any nuclear deal with Iran would by an executive agreement that does not carry the weight of law- is essentially accurate.

Although the issue at hand, a nuclear Iran, is a major policy item, he said the open-letter format still does not represent the most troubling scenario the Logan Act could be used to combat. “Secret negotiations are a lot more dangerous than publishing articles in the newspaper,” he said, noting there have been several cases where under-the-table negotiations threatened to undermine executive policy.

He also pointed out the irony of Secretary of State John Kerry’s criticism of the letter considering he had met with communists abroad during the Regan administration to discuss foreign policy.

The statute in question reads: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both,” according to 18 U.S. Code § 953, as cited in Legal Information Institute of the Cornell University Law School.

Others debate the strength of the doctrine of desuetude, which essentially states that a conscious neglect of a law can render it inert. “Scholars have shown that written constitutions may be informally amended in various ways, for instance, by judicial interpretation, statute, or executive action.

But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude,” according to a study by Richard Albert published by Boston College Law School.

“Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors.” Still, others speculate the senators may have acted improperly. And others claim desuetude is not relevant to this instance and any law on the books remains valid until amended or repealed.

What culminates from the integration of these opposing standpoints is a virtual stalemate; each side of the political spectrum distributing viewpoints that fit their motives and each neatly negated by the other. The headlines about senators breaking the law, or not, may do more to sway public opinion about the usefulness or harm stemming from the existence of the letter than to genuinely elicit serious debate about criminal law.

Essentially, this is just “political theatre,” some will argue. This begs the question: should there be a place for laws that do more for political posturing than creating civil order?

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