How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

http://opiniojuris.org/2016/11/09/why-president-obama-gave-president-elect-trump-the-power-to-undo-the-iran-deal-and-paris-agreement/

11 Responses

  1. This (“will have no one to blame but himself and his legal team for this fact.
    The larger lesson from this saga is that leg”; “cuts the corners on the law”) assumes that Obama had the option of a binding treaty approved by two-thirds of the Senate or a congressional-executive agreement. He didn’t.

  2. Thank goodness Trump won.

  3. BTW why would it be difficult for President Trump to get out of NAFTA. It was not approved by Congress – yes details were approved but it is a essentially an executive agreement not a treaty if I recall correctly. There is a provision again, unless I am mistaken, that allows the USA, Canada or Mexico to leave on 6 months notice. Why cant trump do that himself without Congress? And of course TPP is finished.

  4. Thank you Julian for your great remarks. I think the Joint Comprehensive Plan of Action (JCPOA) will still be binding among the parties firstly as it’s supported by UNSC resolution. Secondly, the JCPOA is fruit of several years of comprehensive negotiations which is not simply a diplomatic agreement; therefore, as the Iranian ministry of foreign affairs said, the U.S. must be realistic in the face of regional and international affairs. Thirdly, non-compliance to the JCPOA may give Iran the right to refer a new dispute to the ICJ based on the amity treaty between the two states.

  5. I second Marty’s comment above.

  6. To Marty and Dan, the reason Obama didn’t “have” this option is that he didn’t want to take that route, knowing fully well that he would be defeated by a simple majority vote. He danced around the issue in order to be able to force it down everyone’s collective throat by side-stepping Congress’ and the American people overwhelming opposition. To paint him now as a guy who had no other choice is dishonest and belongs to the re-writing of history category of storytelling.

  7. In response to Professor Lederman, I’d say that if the President had no chance of getting an international agreement of that magnitude through the Senate maybe he shouldn’t have signed it at all.

  8. He didn’t force anything on anyone. He wanted to reach an agreement with Iran and with other countries on Iran’s nuclear program. He knew Congress wouldn’t approve it as a treaty. So he concluded a legally nonbinding executive agreement, fully within his presidential power. That legally nonbinding agreement can indeed now be withdrawn from by the next President. I think Julian is setting up a bit of a strawman by saying that people thought he was so clever at the time but now the cost of this strategy is at hand. If he hadn’t done the agreement as an executive agreement there would be no agreement at all, so there would be no loss at this point. He didn’t sneak around Congress to somehow get a legally binding treaty, or try to call this a treaty when it wasn’t. He did the only thing he could practically do at the time and was 100% clear and legally correct about what he was doing. The fact that Trump can now pull the US out of the agreement isn’t some cost of Obama’s duplicity or sneakiness, it’s just the nature of the agreement that was made.

    And don’t call me dishonest. That’s over the line and shouldn’t be tolerated as an accusation here.

  9. What Dan said.

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