Does President Obama Need Congress’s Approval to Sign a Nuclear Deal with Iran? Can Congress Force Him to Get Their Approval?

The fight between President Obama and Congress over Cuba policy is nothing compared the brewing struggle over a U.S.-Iran agreement over Iran’s nuclear program.  I noticed this little foreign affairs law nugget today from the WSJ’s report of this ongoing struggle (emphasis added):

In the Senate, Mr. Menendez, of New Jersey, is co-author of a bill that seeks to impose new, escalating sanctions on Tehran if negotiators fail to conclude an agreement limiting Iran’s nuclear program before the end of June, the diplomatic deadline.

A second piece of legislation, promoted by the committee’s new chairman, Sen. Bob Corker (R., Tenn.), seeks to give Congress the power to either approve or reject any nuclear agreement reached with Tehran.

Senior administration officials who testified before the committee said the White House would oppose both bills.

Deputy Secretary of State Antony Blinken said the White House doesn’t view an agreement with Iran as a treaty that requires Senate approval, but a matter of “executive prerogative.”

In general, I think the President has broad discretion under U.S. statutes to impose or lift sanctions on Iran, and although I haven’t looked at the Iran sanctions in detail, I bet the President has broad powers to waive sanctions without going back to Congress.  The White House is certainly acting like that’s the case, although the devil is in the details.

The more interesting question to me is whether any agreement with Iran must take the form of an Article II treaty requiring 2/3 of the U.S. Senate’s approval.  David Rivkin and Lee Casey argue in the WSJ here that Congress should demand that the Iran agreement take the form of a treaty.  There is some precedent for the Senate demanding, and getting, the White House to use the treaty process. In 2002, President Bush submitted his Moscow nuclear arms deal with Russia to the Senate despite earlier statements suggesting he wouldn’t bother.

But the deal with Iran is not an arms control treaty, which has almost always been sent to the Senate.  It is an agreement to lift sanctions in exchange for ending Iran’s nuclear weapons program.  I stand to be corrected, but I don’t think there is the same kind of Article II tradition in this area.  The closest analogy I can come up with off the top of my head is the normalization of relations with China in 1979, which lifted sanctions, but did not involve a comprehensive Article II treaty.

On the other hand, the sanctions regime for Iran is enormously complex and much more extensive than the pre-1979 China sanctions. Many of the Iran sanctions may not be waiveable by the President, and the new sanctions bill will certainly make most of the sanctions mandatory.

It seems to me perfectly constitutional for Congress to pass a law requiring the President to submit his Iran agreement for Congress’ approval, either as a treaty or as an executive agreement, as a condition for lifting those non-waivable sanctions on Iran.  This seems a perfectly legitimate exercise of Congress’ foreign commerce power and is consistent with constitutional practice in the trade arena. But until such a law passes, it is far from clear the President has to submit the Iran agreement to Congress.

In any event, as Messrs Rivkin and Casey pointed out, Iran may want to hold out for an agreement that is congressionally-approved because, otherwise, the President (including the next President) could re-impose sanctions at any time.  But Iran may also simply prefer to take a deal that lasts at least until January 2017, since that is a non-trivial amount of time to enjoy a non-sanctions regime (and possibly secretly develop their nuclear weapons program).

Bottom line: I am doubtful that President Obama must submit the Iran agreement to the Senate as an Article II treaty, although it would not be wrong for Congress to demand such a form here as part of the inter-branch give-and-take constitutional practice.  It is simply not clear-cut from the Constitution’s text or historical practice what is required.  I do think Congress can pass a new law requiring the right to approve or reject the Iran agreement.  Whether they can overcome President Obama’s veto is another question entirely.