Reply to the Anonymous Dissent from My Column on the GOP and Iran

by Andrew C. McCarthy

Response To...

A Response to McCarthy

Who are you gonna believe, your honey or your lyin’ eyes? That is the question that springs to mind upon reading the “dissent,” forwarded to Rich by a friend who prefers to remain anonymous, from my weekend column on the dangerously misguided Republican response to Obama’s Iran deal.

In the column, I repeated the critique of the Corker bill I’ve been making for months (see, e.g., here, here and here): The legislation will help President Obama pave Iran’s way to become a nuclear-weapons power. This seems counterintuitive to those with higher expectations of Obama’s Republican opposition than I have: The bill overwhelmingly passed the GOP-controlled Congress after being proposed by Foreign Relations Committee chairman Bob Corker (R., Tenn) with co-sponsorship by the likes of Senator Ben Sasse, the freshman Nebraska Republican who drew strong conservative support (and who figured prominently in my weekend column). Yet it is simply a fact that the Corker bill reverses the Constitution’s presumption against international agreements: instead of requiring the president to convince a two-thirds supermajority of the Senate to approve the Iran deal, it requires opponents to convince a two-thirds supermajority of the full Congress to defeat the deal.

Unlike my column, the anonymous dissent does not refer readers to the text of the Corker bill so they can see what it actually says. Instead the dissenter argues that if the Corker bill really “worked the way some of its critics describe it, no Republican would have voted in favor of it.” After all, they’re “Iran hawks,” so for me to suggest they’ve done something that will help the terror regime get out from under punishing sanctions and acquire nuclear weapons “seems not just unfair but totally unfounded.”

Really? The dissenter must have missed the scheme by which GOP “debt hawks” – many of these selfsame “Iran hawks” – arranged to allow Obama to raise the debt ceiling by additional trillions of dollars, the template for the Corker bill that I’ve previously outlined. In any event, the New York Times – not exactly a rightwing scourge of bipartisan Beltway machinations – doesn’t seem to think my description of the Corker bill is all that “unfair” and “totally unfounded”:

The essence of the legislation is that Congress will have a chance to vote on whatever deal emerges with Iran . . . but in a way that would be extremely difficult for Mr. Obama to lose[.]… [I]f [Congress] rejected the agreement, Mr. Obama could veto that legislation – and it would take only 34 senators to sustain the veto, meaning that Mr. Obama could lose upward of a dozen Democratic senators and still prevail.

Mind you, this is the same legislation about which the dissenter says, “From what I can tell, all the Corker bill does is set up a procedure for Congress to kill the deal.” Evidently, the dissenter can’t tell much. As the Times elaborates, Democrats were among the Corker bill’s biggest boosters because it ensures the deal cannot be killed unless Republicans muster 67 disapproval votes in the Senate (as well as 291 in the House). Naturally, President Obama signed the bill because it assures him of victory.

Unable to defend the Corker bill’s indefensible terms, the dissenter uses a strawman to distract from them. We Corker critics just don’t seem to realize, you see, that “Obama already has full legal authority to unilaterally waive U.S. sanctions.” In our ignorance, we fail to grasp that the Corker bill makes the best of this bad situation by at least forcing Obama to reveal the Iran agreement, which would otherwise have remained shrouded in secrecy.

What nonsense.

I explained back in April that “the sanctions currently in law . . . provide for presidential waivers, which this president has invoked.” No serious analyst is unaware of that fact. But the current sanctions do not enable the president to waive the sanctions permanently – i.e., to repeal the sanctions, which is what Iran is after. (Indeed, we now know the mullahs are seeking repeal not only of sanctions related to their nuclear work but also of those related to their ballistic missile development and other rogue activities – and that Obama appears poised to capitulate.) Our Transformer-in-Chief wants the Iran deal in the worst way, so if he “already ha[d] full legal authority to unilaterally waive U.S. sanctions,” he’d have done it.

The president needs Congress’s cooperation to do away with the sanctions. That is what the Corker bill gives him. Yet the dissenter stubbornly claims, “Nothing in the Corker bill would make the Iran deal more legally binding or legitimate than what it is, a totally non-binding executive agreement.” Not true.

If Congress had done nothing except tell Obama that he was required to submit the Iran deal as a treaty – as suggested by Senator Tom Cotton (R., Ark.), the only senator from either party with the good sense to vote against the Corker bill – then, yes, the deal would have been a mere executive agreement between Obama and the jihadist regime of Ayatollah Ali Khamenei, with no binding effect in law or on future presidents. But as I pointed out in the column (citing the statutory section the dissenter does not address), the Corker bill authorizes the president to provide Iran with relief from the sanctions if Congress fails to enact a joint resolution disapproving Obama’s Iran deal. (See Sec. 135(c)(2)(C), at pp. 33–34.)

Let that sink in. The Corker bill does not require Congress to approve the Iran deal before sanctions can be extinguished; Obama gets his way if Congress fails to disapprove the deal. These GOP “Iran hawks” well know that Congress will surely fail to enact a joint a joint resolution of disapproval. As the above-excerpted Times report points out, (a) Obama will veto it if one is passed, and (b) more than enough Democrats will stand with him to defeat any override attempt.

In effect, then, the Corker bill is a congressional greenlight for Obama’s gutting of sanctions. Don’t be fooled by talking points about how the legislation allows Congress to review the deal and withhold its approval. Under the Corker scheme, refusal to approve is not enough to stop the deal; an affirmative disapproval by a veto-proof margin is required. Since the latter is unattainable, the result will be the same as if Congress had approved the deal.

Because of the way the Corker bill rigs things, Obama will persuasively argue that his deal is not a mere executive agreement. Rather, it will have congressional imprimatur – albeit in the form of acquiescence rather than endorsement. Contrary to what the dissenter, Senator Sasse, and other Corker bill enthusiasts seem to believe, high dudgeon acquiescence still counts as acquiescence.

The dissenter’s claim that the deal is “non-binding” is even more delusional when the factual context is considered. If, as Senator Cotton suggested, Congress had taken no action except to very publicly remind the president that the Constitution required congressional assent for the deal to be binding, Obama would have had a weak hand in proposing that the U.N. Security Council endorse the deal in a resolution. To be sure, the Security Council might have done it anyway; but the resolution would have been tainted – without congressional assent, its American component would have been invalid. Other nations considering the repeal of their sanctions would have been put on notice by Congress that the U.S. sanctions, the most consequential ones in the world, remained in effect and would likely be enforced again when the next president took office. Some nations might have backed off from repealing their sanctions; the rest could not complain that they’d been sandbagged if the next president ignored Obama’s deal and reinvigorated the sanctions.

Thanks to the Corker bill, however, Obama will have a much stronger legal case in seeking a Security Council resolution: He will assert that under a law specifically enacted by Congress to address the Iran deal, he was given the authority to withdraw sanctions unless Congress defeated the deal under U.S. legislative rules – which Congress will have failed to do. With this solid legal basis for relying on Obama’s repeal of U.S. sanctions, other countries would repeal their sanctions and establish new, long-term commercial ties with Iran. Any attempt by the next president to reinstate the sanctions a couple of years from now would be condemned as a violation of American and international law. A future Republican president would be loath to expose himself to such harsh criticism, especially when reinstated U.S. sanctions would be far less effective at that point, with Iran having already reaped a huge financial windfall from Obama’s deal.

We can argue ad nauseam whether the Corker bill makes Obama’s deal binding in a technical legal sense. I think the courts would find that it does, but that is almost beside the point. The Corker bill makes the Iran deal de facto binding. By two years from now, with all the sovereign international actions taken in understandable reliance on it, undoing the deal would be impracticable. If Congress is going to reject the deal in an enforceable way, it needs to do that now; the Corker bill has made that impossible – unless you think Democrats are going to abandon Obama in droves.

The dissent’s other points are a sad a measure of how Congress’s constitutional powers to check presidential overreach have atrophied under Republican leadership. I freely concede that Obama was determined not to treat the Iran deal as a treaty subject to what the dissenter calls “Senate ratification.” (Actually, the Senate does not ratify treaties; the Constitution empowers the Senate to “concur” in them; if it does, the president may ratify them.) The dissenter, however, claims that Congress had no way to pressure Obama into complying with the Constitution.

Not true. The Senate’s power to review international agreements is not contingent on the president’s submitting them for approval as formal treaties. The Senate’s power comes from the Constitution, not presidential action or inaction. Similarly, Congress’s power to regulate international commerce is not contingent on the president’s willing cooperation in sharing the details of negotiations with foreign powers.

Both congressional chambers have the power to conduct hearings, to demand and examine the text of international agreements. If the administration fails to comply, Congress has the power to, for example, cut off funding, decline to enact legislation the president desires, and refuse to consider presidential nominees. And since we are talking about an executive agreement that will give aid and comfort to an enemy regime that is responsible for murdering thousands of Americans, it is worth adding that Congress has the power to impeach executive branch officials who attempt to vitiate the Congress’s constitutional powers over foreign agreements and commerce.

Contrary to the dissenter’s claim, it is not that Congress lacks “a way to force Obama” to comply with the Constitution’s treaty requirements. It is, as ever, that under Republican leadership, Congress has chosen not to use its robust constitutional powers because it fears political blowback – including, oddly, being “blamed” for thwarting a deal that is hugely unpopular. In enacting the Corker bill, lawmakers have instead chosen to design a counter-constitutional process that enables Obama to get what he wants while Republicans write angry letters ostensibly opposing what they have voted to allow.

Similarly unavailing is the dissenter’s repetition of the mantra that Obama’s “terrible agreement” would have remained “behind closed doors in Vienna” but for the Corker bill, which purportedly ensures that the American people will get a “full view” of it. First, the Corker bill does not provide for full exposure of the agreement. It expressly anticipates that portions of the deal will be classified. (See “CLASSIFIED ANNEX,” Sec. 135(a)(2)(C).) Thus, it encourages the White House to classify as much of the deal as Obama thinks he can get away with.

Second, as we’ve seen, Congress did not have to forfeit its constitutional powers in order to pry a copy of the agreement out of the White House. It could have demanded production of the Iran deal for purposes of oversight hearings, and punished the administration if it refused to comply. It could, for example, have threatened to cut off U.S. funding for the U.N. if Obama attempted to submit the Iran agreement to the Security Council without revealing it to Congress.

Third and most telling, we know from our experience with the interim agreement that even though Obama tries to keep Iran negotiations under wraps, the public ends up learning about all significant agreement terms … from the Iranians. The mullahs cannot help themselves but crow over concession after concession won from Obama’s negotiators. Nor will the Chinese, Russians, Europeans, and U.N. share “the most transparent administration in history’s” preference for secrecy – especially if exposing details of the deal will embarrass the United States.

Perhaps the most ill-considered aspect of the dissent is the comfort drawn from the difficult political position Democrats find themselves in: caught between protecting their president’s legacy and the prospect of voting to empower and enrich our jihadist enemies. This, we are told, is why we should be praising Senator Sasse for writing an anti-Iran deal letter rather than questioning (as I do) why Sasse supported the Iran deal-enabling Corker bill.

The dissenter would do well to remember that, in order to get the Corker bill across the finish line with White House support, Republican leadership provided Democrats with astonishing help: defeating amendments that, among other things, would have required Obama to certify that Iran had ceased supporting anti-American terrorism; would have automatically re-imposed sanctions in the absence of such a certification; would have required treating the deal as a treaty; would have required Iran to free the Americans it is holding in its prisons; and would have required Iran to accept Israel’s right to exist as a Jewish state. The dissenter is sorely mistaken in believing that only Democrats stand to be politically embarrassed by positions the Corker legislation has boxed them into.

There are surely times in partisan politics when lawmakers should force difficult votes that hold their opponents accountable for supporting unpopular policies. There are other times, though, when the duty of statesmen is to use the powers entrusted in them to defeat policies that profoundly damage our national interests and endanger national security. This is one of those times.

Iran is an enemy of the United States and its acquisition of nuclear weapons, like its promotion of terrorism, is unacceptable. This situation thus presents a duty to prevent what is unacceptable, not an opportunity to abide what is unacceptable while scoring political points. Using Congress’s constitutional powers to stop the Iran deal would be statesmanship. The Corker bill is gamesmanship.

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