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