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Dec 04 2013

Can Congress Stop the Iran Agreement?

There’s been a fairly furious reaction to the Obama administration’s ongoing negotiations with Iran over nuclear power in some circles. The Republicans are pretty much universally opposed to it and many prominent Democrats, folks like Charles Schumer who are strongly beholden to the Israel lobby, are as well. Rosa Brooks says that the recently announced agreement is “not great, but it’s not chopped liver, either. After a decade of impasse and insults on both sides, it’s a small but genuine breakthrough.” And she looks at the question of whether Congress could block it from going through:

But that depends on President Obama’s willingness to stand firm in the face of congressional bluster.

There’s no shortage of that bluster: So far, Congress has shown a distinct bipartisan disinclination to engage in reality-based thinking. Sen. Bob Menendez, chair of the Senate Foreign Relations Committee, complains that the Geneva deal “did not proportionately reduce Iran’s nuclear program.” Sen. John McCain has called the deal a “dangerous step that degrades our pressure on the Iranian regime.” Rep. Eliot Engel, the ranking member on the House Foreign Affairs Committee, objects that the deal does not “require Iran to completely halt its enrichment efforts or dismantle its centrifuges.” Sen. Marco Rubio agrees, insisting that there should be no sanctions relief until “Iran completely abandons its enrichment and reprocessing capabilities.”

Rainbows and unicorns, guys.

Short of all-out war, the Obama administration — and the rest of the international community — has essentially zero ability to force Iran to abandon its nuclear program completely. We’ve tried, remember? As I wrote on Nov. 21, for two decades, we’ve threatened, we’ve blustered, and we’ve piled sanctions on top of sanctions. And for two decades, Iran has continued to advance its nuclear program. We can keep up the sanctions for the next two decades, but we’re likely to get an even angrier, more desperate Iran that would still continue to build up its nuclear program…

Congressional hawks should stop bloviating and help the president make this deal work. It’s funny: Just a few months ago, many of the very same hawkish legislators who are now threatening to destroy the Iran deal by imposing new sanctions were insisting on the importance of executive-legislative unity when bargaining with adversarial foreign states. Remember Syria? When President Obama declared his intention to ask Congress to authorize military action against President Bashar al-Assad, Sen. McCain declared, “A vote against that resolution by Congress I think would be catastrophic. It would undermine the credibility of the United States of America and the president of the United States. None of us want that.”

If “none of us want that,” it’s hard to see why it’s important for Congress to back the president when it comes to threats to use military force, but fine for Congress to undermine the president when he tries to use diplomacy so we can avoid resorting to military force.

President Obama needs to make it clear that it’s his job, not Congress’s, to broker deals with foreign powers. That’s not just a policy preference: It’s the way the U.S. Constitution divvies up authority between the executive and legislative branches. As the Supreme Court declared in U.S. v Curtiss Wright, the president “alone negotiates: Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it.”

In fact, it’s an open constitutional question whether Congress can impose mandatory sanctions on a foreign state over the president’s strong objection. Congress has the power to regulate foreign commerce, but the president is vested with executive power and is the sole representative of the United States vis-a-vis foreign states. Just as the congressional power to declare war does not prevent the president from using military force in what he views as emergencies — whether Congress likes it or not — the congressional power to regulate foreign commerce can’t force the president to implement sanctions that would undermine a time-sensitive executive agreement if doing so, in the president’s view, would jeopardize vital national-security interests.

Any congressional efforts to completely eliminate the president’s foreign-affairs discretion could lead to a constitutional showdown, which Congress would almost certainly lose. If Congress passed new sanctions legislation that the president believed would undermine the deal with Iran, he could veto it; if Congress mustered up the two-thirds majority needed to overcome a veto, the president could simply refuse to implement the sanctions. The courts would be unlikely to side with Congress because, traditionally, they have viewed such disputes as “political questions” best resolved through the ballot box.

I’ll be interested to see how far some members of Congress want to push their opposition. It really comes down to the Democrats. The Republicans can scream and holler all they want, but Schumer is powerful and from Obama’s own party. Would Harry Reid allow a vote on a bill maintaining the sanctions, or even on a resolution urging a stronger position? Time will tell.

20 comments

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  1. 1
    Raging Bee

    The courts would be unlikely to side with Congress because, traditionally, they have viewed such disputes as “political questions” best resolved through the ballot box.

    I’m sure Scalia would cobble up some truthiness to justify siding with Congress. They already have the “strict constructionist” dogma that courts should never override laws passed by elected lawmakers, so the ground is already set to apply a similar rule to a President most Republicans are already calling a tyrant and an antichrist.

  2. 2
    colnago80

    Well, the nutcases in the House are already ginning up an impeachment trial.

    http://goo.gl/XjnkcI

  3. 3
    Avo, also nigelTheBold

    Oh, didn’t y’all hear? Republicans are all about sovereignty, and self-determination, and all that jazz.

  4. 4
    colnago80

    As I understand it, Congress has the authority to approve treaties signed with foreign governments. AFAIK, this agreement with Iran is not a treaty so I fail to see what authority Congress to do anything about it, other then possibly pass legislation prohibiting the President from spending any funds on it.

  5. 5
    raven

    Obama does have one tail wind here.

    Vietnam.

    The Bush Catastrophe featured two wars, one in Afghanistan with some rational basis, the other one in Iraq was just dumb, pointess, expensive, and accomplished little. Right now Iraq features a civil war between Sunnis and Shiites. Again.

    And the US people are showing Vietnam syndrome. Again. We are all tired of foreign wars with no point that cost huge amounts of money and the lives of our friends and family.

    This makes it hard for anyone to project US military power abroad. Which most of the time is a good thing. But there might be a time when we should or have to. And it is still going to be hard. Bush made us less safe in the long run, rather than more safe.

    The chickenhawks might want a war with Iran, which BTW wouldn’t be a walkover since they have 80 million people, some of whom are rabid religious fanatics. The US people are going to go, “Oh no, not another one” and most likely, aren’t going to buy it.

  6. 6
    raven

    Well, the nutcases in the House are already ginning up an impeachment trial.

    Good. Let them. Not the least bit unexpected.

    Their last attack on the USA, just a month ago made the Tea Party wildly unpopular. Another attempted coup d’etat with elections in 2014 should finish them off. Obama should schedule an impeachment trial for say, October 2014.

  7. 7
    Artor

    If “none of us want that,” it’s hard to see why it’s important for Congress to back the president when it comes to threats to use military force, but fine for Congress to undermine the president when he tries to use diplomacy so we can avoid resorting to military force.

    Well, the common factor in both scenarios is the use of military force. Anything that will lead to more brown people getting blown up is good. Anything that leads to namby-pamby peace is libtard cowardice. I hope that clears things up.

  8. 8
    Raging Bee

    As I understand it, Congress has the authority to approve treaties signed with foreign governments.

    The SENATE must ratify any treaty signed by the President; it’s just an up-or-down vote. The House has no direct role at all.

  9. 9
    steve84

    Really the only reason they even care about Israel is so they can make sure it will be destroyed when Jesus returns. If Israel were to be destroyed now, the Apocalypse wouldn’t happen.

  10. 10
    Chiroptera

    Raging Bee, #8: The SENATE must ratify any treaty signed by the President; it’s just an up-or-down vote. The House has no direct role at all.

    That’s correct if the document is formally labelled as a treaty. If a two-thirds majority in the Senate is unlikely but one can get a simple majority in both houses, one can write up an ordinary legislative bill with all the treaty provisions included and send it through. This has been done in the past, although I can’t remember the specific instances — they may have been limited to trade issues. I don’t know whether arms control provisions would present constitutional problems if this trick was used — not that I’d expect a majority of the Republican dominated House to approve of such a thing.

  11. 11
    Chiroptera

    Also, I do believe the Senate has the ability to amend treaties before it ratifies them — I remember it happening or potentially happening in the past. I may be wrong, though.

  12. 12
    busterggi

    It is the absolute duty of Congress to not allow a war over nukes that don’t exist to not occur, especially in violation of orders from Israel.

  13. 13
    colnago80

    Re busterggi @ #12

    Grammar Nazi here. Three negatives in one sentence, tsk, tsk.

  14. 14
    colnago80

    Re Ragilng Bee @ #8

    Correct. Treaties must pass the Senate by a 2/3 vote. Mia Culpa.

  15. 15
    nrdo

    Not that it matters to reflexive pro- and anti-Israel zealots, but this deal is also opposed by Saudi Arabia, which holds considerable influence in the US government. All of the rational observers seem to agree that we won’t know if it’s a good deal until further negotiations and verification, but that allowing the deal to play out is the best course of action, given the lack of alternatives. The noise in congress is likely just bluster.

  16. 16
    Area Man

    Anyone who opposes the deal should be made to state what the deal actually is and explain why it’s bad.

    As far as I can tell, the deal is to unfreeze some (but not all) Iranian assets in exchange for allowing in weapons inspectors and the dilution of their enriched uranium. The sanctions all still remain in place. It sounds like we’re getting an awesome bargain here. We gave up almost nothing and got a huge amount in return.

    The opposition seems based entirely around the fact that there was a deal.

  17. 17
    freemage

    Area Man:

    Anyone who opposes the deal should be made to state what the deal actually is and explain why it’s bad.

    They must also then describe an alternative and explain why it would be better. Also, their explanation of why this deal is bad must include a demonstration that the status quo is somehow preferable.

  18. 18
    Ichthyic

    In fact, it’s an open constitutional question whether Congress can impose mandatory sanctions on a foreign state over the president’s strong objection.

    that strong objection would resemble a veto anyway, would it not?

  19. 19
    Ichthyic

    Anyone who opposes the deal should be made to state what the deal actually is and explain why it’s bad.

    They must also then describe an alternative and explain why it would be better. Also, their explanation of why this deal is bad must include a demonstration that the status quo is somehow preferable.

    basically what the pres himself recently demanded of congress regarding the ACA.

    and good for him that he finally did so.

  20. 20
    Ichthyic

    The chickenhawks might want a war with Iran, which BTW wouldn’t be a walkover since they have 80 million people, some of whom are rabid religious fanatics. The US people are going to go, “Oh no, not another one” and most likely, aren’t going to buy it.

    one of the reasons the US is likely not at war with Syria right now.

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