President Obama Goes Unilateralist; Threatens to Veto Bill Requiring Congressional Review of Iran Agreement

by Julian Ku

As Washington continues to digest Israeli Prime Minister Netanyahu’s (possibly unconstitutional) address to the U.S. Congress criticizing a pending nuclear arms deal with Iran, a constitutional and political fight is brewing over the scope of the President’s powers to make such an agreement and Congress’s power to limit or overturn his agreement. A group of Senators re-introduced a bill last Friday to require President Obama to submit any agreement with Iran to Congress.  President Obama has already threatened to veto this bill, even though, in my humble opinion, it is a pretty modest effort by Congress to oversee the President’s power to make international agreements since it does not actually force the President to seek their approval of the agreement.  It is thus striking that even this modest law has drawn a veto threat.

The Iran Nuclear Agreement Review Act of 2015 would require the president to submit to Congress the “(1) the text of the agreement, (2) a verification assessment on Iranian compliance, and (3) a certification that the agreement meets U.S. non-proliferation objectives and does not jeopardize U.S. national security, including not allowing Iran to pursue nuclear-related military activities” (according the website of the bill’s sponsor, Senator Bob Corker).

Here’s the key provision: the bill would suspend for 60 days the President’s ability to waive or lift any sanctions on Iran.  Congress would have a chance to permanently suspend his power to waive or lift sanctions via a joint resolution of both houses of Congress.  But if Congress does not act at all, or simply approves the agreement, the President can go forward and lift whatever sanctions he otherwise has the authority to lift.

Crucially, congressional silence would (after 60 days) allow the president to go forward and implement the agreement. In political terms, it is therefore possible that a filibuster of a joint resolution in the Senate could result in the necessary silence needed to allow President Obama to implement any agreement after 60 days.

Gentle as this oversight is, it is still too much for the administration. Not only was there an immediate veto threat, but Secretary Kerry stated, ““I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy,”    This might be correct, but it is only correct if you have a pretty robust conception of the President’s powers to make international agreements outside of the Constitution’s Treaty Clause.  While scholars have generally agreed that the President has such independent powers, the type of agreements he can make and the subjects of those agreements remain deeply uncertain and contested.

President Obama may be creating another important precedent here in favor of unilateral presidential power to make non-treaty agreements (to go along with his precedents in favor of unilateral presidential powers to use military force for humanitarian reasons).  Let’s just say he will not go down in history as a president that was deferential or respectful of congressional participation in foreign affairs.

8 Responses

  1. It is a one way ratchet on Presidential power, until we realize how run amok administrations have been. See David Cole’s piece at Just Security.

  2. Hasn’t Congress tacitly endorsed the President’s power to make both international agreements other than treaties and certain arrangements without triggering the Treaty Clause via the Case Act?

    Also, what tradition is President Obama repudiating in creating this new precedent? According to a CRS report prepared for the Senate Foreign Relations Committee in 2001, more than 90% of all international agreements that the US concluded since 1939 were sole executive agreements.

  3. some thoughts/points:
    –The S.Ct. has sanctified the use of sole or presidential executive agreements in Belmont and Pink
    –“deeply uncertain”? Not for the courts. As the Restatement notes, however, the President should not be able to make a sole executive agreement that is inconsistent with an express congressional power (as in Guy Capps).
    –congressional block by joint resolution? the constitutionally suspect approach in the old War Powers Resolution (no presentment to the President for a possible veto).
    — “outside” the Const.’s “treaty clause”? yes, and so are congressional-executive agreements (the vast majority of U.S. international agreements today).

  4. Tyler and Jordan,

    I am not arguing sole executive agreements are unconstitutional or rare, although a sole (as opposed to one requiring congressional participation) are pretty rare for an agreement of this importance.

    My main point is that a statute requiring the President to disclose the text of such an agreement and allowing Congress to express their views on it is a perfectly reasonable effort for Congress to impose oversight on this practice. Yet the President is going to veto it, which suggests he believes even this oversight is too much. Which only makes sense if he believes that the President should have the right to make sole executive agreements over significant topics without any congressional input or review. This is not necessarily a wrong position, but it is unilateralist one.

  5. Julian: that’s fine. And I suspect that a last in time exec. ag. will not trigger the last in time rule (in view of Guy Capps and the Rest.).
    In view of the Rest., what power is not within an express congressional power under Art. I, Sec. 8, cl. 18?

  6. Re:…My main point is that a statute requiring the President to disclose the text of such an agreement and allowing Congress to express their views on it is a perfectly reasonable effort for Congress to impose oversight on this practice.

    That’s not what S.615 actually proposes to do. It prohibits the President from waiving, suspending, or providing relief from the sanctions on the bases of the statutory authority that has already been granted by Congress under existing laws on the subject during a brand new 60 day waiting period – absent a joint resolution from the Congress. In the meantime it requires the submission of an unclassified report with a classified annex. But it would allow either house ignore that assessment from the Executive on the adequacy of the agreement, while they conduct their own “additional hearings and briefings” to “otherwise obtain information in order to fully review such agreement.” We’ve already seen that Speaker Boehner thinks that Prime Minister Nutenyahoo should be consulted and given a chance to dictate policy.

    The President and the Senate already took the necessary steps to ratify the UN Charter, the IAEA Statute, and the Non-Proliferation Treaty. It looks to me as if the Congress is trying to unilaterally go beyond the requirements contained in the applicable treaties, the six multilateral UN Security Council resolutions, and the February 2006 International Atomic Energy Agency Board of Governors resolution on the subject and prevent the President from keeping (what will be after all) a multilateral consensus agreement on the subject negotiated together with the governments of China, France, Germany, Russia and the United Kingdom.

  7. Julian,

    I think the legislation goes beyond that.

    For starters, I don’t believe the agreement with Iran will carry significance as a matter of int’l or domestic law. It will instead be a political agreement – or, in the language of the Case Act, an “arrangement”.

    The President’s powers to relieve sanctions are already sanctified in law. He has the power to suspend the operation of the Iran sanctions; has both express and implied authorities to license otherwise prohibited transactions and/or activities; and retains the ability to de-designate Iranian persons and entities from the SDN List. These are all authorities that the President has at present whether there is an agreement or not.

    This legislation seeks to thus rewrite the underlying statutory authorities that the President has in the instance in which Congress votes down any nuclear deal reached with Iran. That is significant.

    It suggests that Congress is interested in something more than oversight. Oversight after all could come in more subtle forms.

  8. That said, I think the interesting question is the ability (and advisability) of the President to enter into far-reaching “political” commitments.

    I know Duncan has written about this, but with an Iran deal on the horizon, the question is fresh once again.

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