No American concession ever empties President Obama’s appeasement reservoir or satisfies Iran’s appetite. So on drone the negotiations toward a disastrous deal that would end sanctions against the world’s leading state sponsor of terrorism while paving its way to a nuclear-weapons arsenal.
In that connection, as Patrick Brennan noted on the Corner Friday, Senator Ben Sasse has penned a letter to the president that makes a compelling case against a key aspect of the contemplated Iran deal.
So here’s my problem: Since the obviously perspicacious senator grasps how critical the burden of persuasion is, why did he support the Corker bill? That legislation, co-sponsored by Sasse and enacted as the Iran Nuclear Agreement Review Act of 2015, shifts the burden of persuasion away from President Obama and onto opponents of the Iran deal, thus making the deal virtually impossible to stop or undo.
Sasse could not be more right that, in a dispute, the question of who carries the burden of proof can be just as significant as the question of what must be proved. This is best illustrated by our criminal-justice system. How do we put into action the proud boast that we’d rather see the guilty go free than the innocent wrongly convicted? By imposing the burden of persuasion on the state, not the accused. This establishes a presumption of innocence that often makes all the difference: Even if jurors believe the accused has probably committed the charged crime, they must acquit him if the state fails to carry its burden of proving guilt beyond a reasonable doubt.
So Senator Sasse is right: In the final deal, the burden of persuasion is key. If Iran must prove its compliance to earn concessions, that is one thing; but if the United States must prove violations — not to an impartial jury but to hostile players such as Russia and China, and to Europeans as anxious as Obama to capitulate — then the sanctions are dead and buried.
In light of how crucial the burden of persuasion is, however, would it not have been better to leave in place the one the Constitution imposes on the president? The one that could have prevented Obama from making a legally enforceable deal in the first place?
Under the Constitution, the president must persuade a two-thirds supermajority of senators to approve an agreement with a foreign power. That is, as I’ve repeatedly contended in connection with the Iran negotiations, the Constitution’s presumption is against legally binding international pacts.
Of course, a president may make a legally non-binding agreement with a foreign sovereign, and he may act on it to the extent allowed by his broad constitutional power to conduct foreign affairs. This, however, does not enable him to ignore valid laws, such as international sanctions, that Congress properly enacts pursuant to its constitutional powers. To undo those, a president must either persuade the Senate to ratify a treaty or persuade the full Congress to repeal the sanctions by ordinary legislation — bills passed by a majority of both houses and signed by the president.
Under the Constitution’s burden of persuasion, then, the Iran deal did not have a prayer of becoming law.
Senator Sasse is right: In the final Iran deal, the burden of persuasion is key.
Enter the Corker legislation. It undermined the Constitution’s presumption against international agreements by shifting the burden of persuasion: Rather than forcing the president to persuade two-thirds of the Senate to approve the deal, it imposes on opponents the burden of persuading two-thirds of the full Congress to reject it.
Even worse, this scheme also undermines the Constitution’s legislative process. The Corker legislation authorizes the president to waive sanctions against Iran even if Congress fails to pass, or to get the president to sign, a resolution approving the waiver. In fact, even if Congress passes a resolution disapproving Obama’s Iran deal, the Corker legislation allows Obama to veto the resolution and waive the sanctions anyway. (See “(c) EFFECT OF CONGRESSIONAL ACTION WITH RESPECT TO NUCLEAR AGREEMENTS WITH IRAN,” subsection (2) describing “statutory sanctions relief” procedure.)
Sasse’s letter observes that Obama “administration officials have all but admitted that the sanctions relief will be used by Iran at some level to support terrorism.” Yup.
Sasse warns that “the message [Obama is] sending to other countries is that they can cheat and defy the international community and get away with it.” Indeed.
The senator forcefully adds that in the absence of “anywhere-anytime inspections and verification measures, full disclosure of previous weaponization efforts, gradual and conditional sanctions relief, and automatic snap-back of sanctions” — all of which Iran has rejected with the Obama administration’s apparent acquiescence — “Congress should reject the deal and ensure that both sanctions and military action remain on the table.” Exactly.
So, with Republicans in control of both houses of Congress and seemingly unified against Obama’s awful Iran deal, what was the point of supporting and enacting legislation that has made it exponentially harder for Congress to reject the deal, preserve the sanctions, and keep the military option on the table?
It is good that Senator Sasse recognizes the importance of the burden of persuasion. The problem is that President Obama recognized it back when the Corker bill was being considered. That’s why he signed it.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.