In my weekend column I offered a concrete plan to undermine President Obama’s atrocious Iran deal. It is an easy one, because all that the Republican-controlled Congress has to do, if it really wants to derail this thing, is follow the law that they wrote and Obama signed, the Corker law — the Iran Nuclear Agreement Review Act of 2015, sometimes also known as “Corker-Cardin,” after Senate sponsors Bob Corker (R., Tenn.) and Ben Cardin (D., Md.).
Sadly, in another iteration of the anger that is the wind beneath Donald Trump’s wings, many readers insist that GOP leadership has no intention to block Obama on Iran. If that is so, it is passing strange. The national-security threat here is grave. Plus, how much credibility can Republicans have (maybe I should just end the sentence there) in complaining about Obama’s disregard of federal law if they won’t even follow the law they themselves enacted just four months ago?
In my column I demonstrate that Obama has failed to comply with the crystal-clear conditions spelled out in the Corker law. This is indisputable. “Side deals” that the statute explicitly requires to be disclosed to Congress — involving, for example, IAEA inspection terms and Iran’s prior nuclear work — have been withheld. Moreover, not addressed in my column is yet another alarming side deal Obama has refused to disclose: one that shows the president is deceiving the public when he preposterously claims that sanctions will “snap back” if Iran is caught cheating. (I’ll have more to say about this in another post. For now, see this important Real Clear World report, particularly the subsection “Fallacious ‘Snapback’ Sanctions.”)
Under the Corker statute, in order to get the benefit of the review process that enables him to “win” approval of his Iran deal with the support of only one-third (plus one) of one house of Congress, Obama had to provide the entirety of the Iran deal, including all relevant side deals between any parties, by July 19. He has failed to do this. Thus, Congress must not go forward with the review, because (a) that is what the law says, (b) forcing full disclosure is the solemn political commitment Republicans made to voters in justifying the wayward Corker review process, and (c) if they go through with the review process, they will be deemed to have forgiven Obama’s default.
In this connection, it is necessary to address what has brought us to this perilous point: the GOP scheme I call “Surrender . . . Then Play-Fight.” It is a form of political gamesmanship that, as we are seeing, has dire legal and national-security consequences.
“Surrender . . . Then Play-Fight ” is Republican leadership’s shameful approach to “governing.” The quotes around “governing” are intentional. After voters, having trusted the GOP’s 2014 campaign promises to block Obama’s agenda, gave Republicans control of both houses of Congress, Senate majority leader Mitch McConnell (R., Ky.) notoriously said that the party’s primary objective was to show the public that it could “govern.” As I countered at the time, this was gibberish. Governing is principally an executive exercise. Presidents govern, while legislators prescribe. Prescribing law and monitoring the administration’s execution of it are crucial functions, but they are not governing, because lawmakers are powerless to carry out policy.
Worse, the “show we can govern” tripe is just a rationalization for capitulating to Obama. GOP leaders said they must prove they can overcome legislative gridlock and (all together now) “get things done.” Perforce, the way a legislature “gets things done” is by helping the president do the things he wants to do.
Since the president is currently Obama, the people who elected Republicans obviously wanted them to stop things from getting done. The resulting rage of its increasingly estranged base puts the GOP in a quandary: Republicans must avoid being seen as supporting the things they are getting done — i.e., the Obama agenda. So some sleight-of-hand is in order, some schemes to grease the wheels for Obama while posing as staunch Obama opponents.
Among the most pernicious is “Surrender . . . Then Play-Fight.”
It is a legislative template for obscuring the GOP’s enabling of Obama, a ruse designed to make it appear that the president is getting his way with only minority support (i.e., his hardcore Democratic supporters), while Republicans stridently condemn what they have actually voted to allow. Obama is delighted to play along, because he gets what he wants.
Surrender . . . Then Play-Fight is what Republican leadership choreographed in the Corker legislation. As I’ve pointed out before, they did not make up the Corker scheme on the fly. Senators Corker and Cardin used the template designed by Senator McConnell, his Democratic counterpart Harry Reid (D., Nev.), and House speaker John Boehner (R., Ohio) to increase the debt ceiling.
Here is how the Surrender . . . Then Play-Fight razzmatazz works — and follow closely or you’ll lose track of where Republicans are hiding the ball.
Step one: Obama wants to do something bad. The Republicans decide to let him do it, while appearing to oppose it. Why? Maybe because they secretly agree that it should be done but know it will infuriate their base (think: raising the debt ceiling). Maybe because, although Republicans know it is bad, they are less concerned about the danger to the country than about the media-Left wrath that will rain down on them if they block Obama. Making a calculation rooted in politics rather than statesmanship, they conclude: It’s better to let the bad thing happen than be blamed for “gridlock,” “partisanship,” etc.; plus, if they can pull off the “enable Obama while ostensibly opposing Obama” trick, their empty rhetorical opposition will poll better than taking real steps to stop the president (think: Iran deal).
Step two: The legislative template — Surrender . . . Then Play-Fight — is deployed. Republicans engineer the enactment of an authorizing statute that fully permits the bad thing Obama wants to do, but it attaches a “process” that has two conditions: 1) Obama must take certain measures to formally propose the bad thing (even though the bad thing has already been conditionally authorized); and 2) congressional Republicans must be given an opportunity to “disapprove” of the bad thing they have already approved in the authorizing statute. As GOP leadership well knows, this opportunity to disapprove is sheer theater: Obama will veto the “disapproval” and needs only one-third-plus-one support in just one chamber (i.e., 34 senators or 146 House members) to prevent an override.
It is critical to sort out the law (the authorizing statute) from the theatrics (the disapproval process). If you miss this point, you will miss why it is crucial that Republicans, if they really want to derail Obama’s Iran deal, must not go through with the farcical process of voting on a “resolution of disapproval.”
RELATED: Facing Reality on Iran
In a Surrender . . . Then Play-Fight scheme, as a matter of law, the bad thing is actually accomplished by the authorizing statute. The disapproval process is just for show. Of course, Republicans try to make the disapproval process look like the whole game — because it’s then that they pose as staunch Obama adversaries. But it is a lot of hot air, designed to have no actual legal effect.
Obama can be undermined only if he fails to comply with the conditions and Republicans call him on it.
The condition that really matters in the authorizing statute is not the disapproval process; it is the measures Obama is required to take in formally proposing the bad thing and triggering the farcical disapproval process. As long as the president takes those measures — i.e., as long as he complies with the conditions laid out in the authorizing statute — he is guaranteed victory because the disapproval process is rigged in his favor. But he must comply with the conditions. The condition in the Iran deal was that he was required to provide the entire agreement to Congress by July 19. Obama can be undermined only if he fails to comply with the conditions and Republicans call him on it.
The debt ceiling is the concrete example of Surrender . . . Then Play-Fight in action. When they are in campaign mode, today’s Republicans rail against-out of-control deficit spending; but when in office, they are incorrigible offenders. While there is never enough spending as far as Democrats are concerned, deficit spending is a big political problem for Republicans because their base opposes it and the Constitution makes Congress, not the president, accountable for it. Republicans have been in control of at least one congressional chamber since 2011, and Obama’s unprecedentedly astronomical deficit spending could not be carried out without their approval.
To keep the gravy train rolling while pretending to oppose it, Senator McConnell and Speaker John Boehner designed Surrender . . . Then Play-Fight. With the cooperation of the White House and Democrats, they orchestrated a law that authorized a massive, multi-trillion-dollar increase in the debt ceiling, subject to a process consisting of two conditions: 1) Obama had to take steps to propose the increase incrementally; and 2) Republicans had to be permitted to register their opposition — to what they’d already authorized — by passing a “resolution of disapproval.”
In enacting the authorizing statute, Republicans of course knew that the eventual resolution of disapproval would be meaningless because Obama would veto it and was assured of the one-third-plus-one support of Democrats needed to sustain the veto. But they calculated that the process would make it appear that Obama alone was pushing for more spending: Republicans could rail against Obama’s recklessness and then cast two show votes against it.
Understand: The debt ceiling was increased by the authorizing statute, not by the process prescribed by the authorizing statute. The authorizing statute was the governing law; the “disapproval” process was just theater — as long as Obama complied with the required steps (in this instance, proposing incremental increases).
Republicans have reprised Surrender . . . Then Play-Fight for Obama’s Iran deal. Just as GOP leaders intend, our attention is now riveted to the Corker review process, in which Congress is scheduled to debate and vote on the Iran deal in the coming days. But the Corker law is not just a process for registering disapproval (rigged to guarantee that Obama wins); it is an authorizing statute.
Specifically, when enacted in May, the Corker law authorized the lifting of the statutory anti-nuke sanctions against Iran, subject to two conditions: 1) Obama had to provide the entire deal to Congress within five days after it was reached (i.e., by July 19), and 2) Congress had to be given an opportunity to register its disapproval of what it had already authorized.
Here’s the salient point: As a matter of law, the anti-nuke sanctions will be deemed repealed by the Corker law if Obama is deemed to have complied with his obligation to provide the full deal to Congress. The disapproval process is just for show. With Republicans unable to muster the votes needed to override Obama’s veto (as they well knew they would be), the disapproval process has no legal possibility of stopping the lifting of sanctions.
Asserting Obama’s failure to disclose the full scope of the deal is the only chance Republicans have to preserve the statutory anti-nuke sanctions.
But alas, we cannot say that this theatrical disapproval-vote exercise would be as harmless as it would be pointless. As I explained in the weekend column, if Republicans go forward with the Corker review process, this would very likely be legally construed as forgiving Obama’s failure to disclose the entire Iran deal. That is, Obama would be deemed to be in compliance with the authorizing statute’s conditions, even though he has not complied. Therefore, the anti-nuke sanctions against Iran would be lifted — but lifted by the Corker authorizing statute as enacted back in May; the upcoming show vote to feign disapproval of what Congress has already conditionally approved has nothing to do with it.
Again, asserting Obama’s failure to disclose the full scope of the deal is the only chance Republicans have to preserve the statutory anti-nuke sanctions. Otherwise, they will be deemed repealed by the Corker law.
“But wait,” some critics counter, “Obama has refused to treat his Iran deal as a formal treaty; so doesn’t that mean it is just a non-binding executive agreement and the next president can just renounce all its terms?”
This is an understandable error. As I’ve emphasized many times, the Corker law reverses the Constitution’s treaty clause, which would have required Obama to convince 67 senators to support his agreement. So critics are right to say that the Corker law does not legally bind our nation to much of Obama’s Iran deal. To that extent, it is just an executive agreement that can be renounced by the next president.Unfortunately, that cannot be said for all of the Iran deal. The anti-nuke sanctions are statutory. They can therefore be repealed by a statute, such as the Corker law. While a statute can be repealed by a treaty, it is not necessary to have a treaty to repeal a statute. It is irrelevant, as far as the statutory anti-nuke sanctions are concerned, that the Corker law does not satisfy the Constitution’s treaty clause.
Consequently, Republicans must abandon the Corker disapproval process and pass a resolution explaining that Obama has failed to comply with the condition that would trigger that rigged process — the duty to provide the entire Iran deal to Congress by July 19. If Republicans fail to do this, they may get their high-profile opportunity to express futile political opposition to Obama’s appeasement of Iran. But they will very likely have forfeited their only legally meaningful way to preserve the anti-nuke sanctions Obama is desperate to repeal.
Surrender . . . Then Play-Fight is political gamesmanship. But this is not a game. This is a call for statesmanship to preserve legal restrictions that impede terror-promoting enemies of the United States from acquiring weapons of mass destruction.
— 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.