Congress Must Ditch the Corker Bill and Treat the Iran Deal as Either a Treaty or Proposed Legislation to be Voted Up or Down

by Andrew C. McCarthy

It is time to end the Kabuki theater. The Corker Bill and its ballyhooed 60-day review process that undermines the Constitution is a sideshow. If you scrutinize President Obama’s Iran nuclear deal, you find that the president ignores the existence of the Corker process. So should Congress.

Obama’s Iran deal also ignores the existence of Congress itself — at least, of the United States Congress. As I’ve previously detailed (piggy-backing on characteristically perceptive analysis by AEI’s Fred Kagan), the deal does expressly defer to the Iranian Congress, conceding that key Iranian duties are merely provisional until the jihadist regime’s parliament, the Majlis, has an opportunity to review them as required by Iran’s sharia constitution. The United States Constitution, however, is a nullity in the eyes and actions of this imperial White House.

Enough is enough — way beyond enough.

The Congress, particularly the Senate, has not only a clear justification but a constitutional duty to scrap the legally defective and, now, factually nigh-irrelevant Corker review process, codified as the Iran Nuclear Agreement Review Act of 2015. I am proud of having been an adamant opponent of the Corker Bill since it was first proposed, but that is neither here nor there at this point. Even supporters of the Corker Bill must now see that the legislation anticipated and is designed to address an international agreement that is fundamentally different from the one the Obama administration has struck with America’s enemies.

Obama’s Iran deal has thoroughly marginalized the Corker Bill. Congress should treat it that way, too.

It is manifest that the Corker Bill prescribes a process for congressional review only of “Agreements with Iran Related to the Nuclear Program of Iran.” In fact, it is even narrower than that, addressing only review of “the application of statutory sanctions with respect to Iran” (see, e.g., Sec. 135(b)(3), (4), (5) and (6)).

But Obama’s Iran deal is not limited to sanctions enacted by the United States Congress in connection with Iran’s nuclear program. Not by a long shot. Obama’s deal extends to Iran’s ballistic missiles programs and other weapons activities — including the lifting of international arms embargoes covering, as Kagan notes, both “any material or technology that might be useful to a ballistic-missile program,” and “battle tanks, armored combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles, or missile systems.”

That is not what Iran and the Obama administration led the American people and its elected representatives to believe they were negotiating. Indeed, Iran has claimed all along — implausibly but assiduously — that its nuclear activities are entirely peaceful and have nothing to do with weaponizing uranium and plutonium. By the mullahs own account, then, ballistic missiles and conventional military weaponry can have nothing to do with “the nuclear program of Iran.” It was over the nuclear program alone that the administration told Congress it was negotiating; that is why the statutory sanctions against that program are the narrow subject of the Corker bill.

Based on what they were being told about the Iran negotiations by the Obama White House and State Department, look at what the congressional leaders who wrote the Corker bill prescribed. Under Section 135(b) and (c), lawmakers may resolve to approve, disapprove, or take no action on “Nuclear Agreements with Iran.” The act then provides, in Section 135(d), for “Congressional Oversight of Iranian Compliance with Nuclear Agreements.”

That’s it. The Corker bill does not prescribe congressional authority to review or approve agreements on ballistic missiles and other weapons. And as has become embarrassingly clear, it does not even prescribe congressional authority to review all the sanctions related to Iran’s nuclear program.

On Thursday, we learned that the administration has begun preparing to circulate a proposed resolution under which the Security Council — before Congress has any opportunity to review, much less approve, the Iran deal — would begin implementing the Iran deal. That includes implementing provisions that relate to nuclear sanctions that were not imposed by U.S. statutes. For the most part, these are Security Council resolutions. In other words, Obama would collude with other countries, but without congressional participation, to modify America’s international legal commitments.

Of course, you may have been under the impression — perhaps from reading our quaint Constitution from those dark pre-Fundamental Transformation days — that We the People are sovereign, that our government must take its marching orders from us. To the contrary, President Obama is claiming in his Iran deal that he — unilaterally and without congressional advice, consent, or legislation — may huddle with Russian strongman Vladimir Putin, the Chinese Communist government, some European leaders, and our Iranian enemies to devise enforceable law. We and our elected representatives are expected meekly to submit.

We must not submit.

As a practical matter, because the Iran deal is night and day different (and orders of magnitude worse) than what Congress and the public were led to believe before the Corker bill was enacted, we are in virtually the same posture we would be in if there were no Corker bill.

Many of the sanctions and understandings Obama’s Iran deal aims to undo were not adopted to block Iran’s nuclear program. They were adopted to combat Iran’s promotion of terrorism, and its acquisition and proliferation of weapons. Moreover, even with respect to the sanctions and understandings that were directly related to nuclear activity, Congress and the public were led to believe that the administration was negotiating to deprive Iran of nuclear capabilities. The president, in stark contrast, has struck an agreement that obliges the United States and other nations to build up Iran’s nuclear capabilities. That is not just outside the scope of what Obama led Congress to believe he was doing; it is the opposite of what he said he was doing — and patently unacceptable.

Congress needs to start from scratch.

Senator Ted Cruz (R., Texas) has reacted to the administration’s attempt to use the Security Council to end-run Congress by threatening to block State Department nominees and funding. What a novel concept: Congress using its constitutional powers to thwart abuse of executive power.

Senator Cruz is on the right track, but what he has proposed is not sufficient. His demand is that Obama agree not to take any action on the Iran deal in the Security Council until Congress has completed the Corker review process. As explained above, though, the Corker review process is limited to statutory sanctions related to Iran’s nuclear activities — it entirely misses all sanctions that target Iran’s terror promotion and weapons activities, and even all nuclear sanctions that are not statutory. So even if Obama agreed to Cruz’s terms — and don’t bet on it — the Corker process would not reach most of the Iran deal. Plus, as we’ve previously explained (see, e.g., here, here and here), in reviewing what little it does cover, the Corker process guts the Constitution’s treaty and legislation requirements.

This is hugely consequential. The president is recklessly compromising national security, materially supporting the world’s leading sponsor of jihadist terror, undermining the Constitution he is sworn to uphold, and grossly eroding American sovereignty by transferring to Putin, the Chinese, the Europeans, and the mullahs decisions about American defense requirements that belong to the American people.

The Congress has an obligation to stop this. Yet, the curiously influential Senator John McCain has managed to convince himself that Congress’s considerable foreign affairs powers are not rooted in the Constitution but dependent on what label (“treaty,” “agreement,” “convention” …) a willful president decides to stick on deals he cuts with foreign sovereigns. This is quite a turnaround for Senator McCain, who did not seem to think President Bush’s labeling of an interrogation tactic as “enhanced” stopped Congress from calling it “torture” and using every power available to lawmakers to undo it.

In any event, contrary to what the Senator and many of his fellow bipartisan Beltway graybeards appear to believe, the framers did not write preemptive surrender into Article I. Congress’s foreign affairs powers are not a function of the president’s indulgence; they are the powers of a co-equal branch, largely intended to check the president.

Congress must use its power of the purse, its appointment power, its power over legislation, and, if necessary, and its power to impeach executive branch officials (the State Department might be a good place to start) to pressure Obama. The objective is not to get His Majesty to hold off on a Security Council resolution until the Corker review process is complete – the Corker review process as enacted does not cover the Iran deal as written.

The point is to force Obama to submit his Iran deal to the Senate as a formal treaty requiring supermajority approval, or at least to submit it to Congress as proposed legislation under the Constitution’s normal legislative process that requires majority approval by both houses. Congressional approval, by the way, does not mean “not disapproval” or similar slippery Corker bill word games.

I am not naïve enough to believe that Obama would agree to this, or that transnational progressives and the media would not scream bloody murder in a way that reliably cows the GOP. The objective is not to convince Obama and the Left; it is to delegitimize the Iran deal as binding law.

While the administration is refusing to yield, the Congress can get busy enacting a constitution-tracking resolution: one that affirms that Congress has the power to insist that international agreements be treated as treaties, or at least regular legislation, if they are to be legally enforceable. If they are not thus approved by a two-thirds supermajority of the Senate or an act of Congress, they have no standing as binding law — they are mere executive agreements that can be abandoned at any time by either the president who makes such an agreement or by a future president.

The Democrats would be expected to fight this, of course, and Obama would veto it (just as he would veto a Corker “resolution of disapproval”). But especially now that we know what is in the Iran deal, many Democrats may not want to be seen as carrying not just Obama’s water but the mullahs’. Moreover, Congress would not be rejecting Obama’s deal; it would be saying that the deal needed to comply with the Constitution to become enforceable — a proposition that should not be controversial. There has to be a better chance of overriding an Obama veto on a resolution that asks Democrats simply to endorse their own indisputable constitutional powers than on a resolution that asks Democrats to reject their president’s deal.

Such a congressional resolution would deprive Obama’s agreement of status as American law. It would deny legitimacy to his scheme to use the United Nations to defeat the Constitution.

Administration officials are already out in the media claiming that, if it disapproves of the Iran deal, Congress would be in violation of international law. That is absurd. The administration would be in violation of American law. So-called international law does not obligate the United States to do anything unless it has been crafted under our constitutional requirements.

Congress is plainly loath to broach impeaching Obama for betraying the Constitution and American sovereignty in order to empower a terrorist enemy that continues to target the United States. For the framers and throughout most of American history, such perfidy would so patently have warranted impeachment that no president would have tried it – truly, the country would never have elected a manner of man who would consider trying it. We live, however, in a uniquely perilous time, when Congress is as determined to abdicate its constitutional responsibilities as Obama is to violate his. Consequently, we have to seek a solution that minimizes the damage.

By taking the steps recommended here, Congress can lay the groundwork for the next president to regard Obama’s Iran deal as a mere executive agreement, reject it, take the position that it has no binding effect, resume enforcing whatever sanctions can still be meaningfully enforced, and make Tehran understand that all options remain on the table to deal with its evil regime.

Concededly, Iran would have been empowered by then. At least some and probably most other countries would have withdrawn sanctions in reliance on Obama’s deal — although Congress’s denial of legitimacy could hopefully give some of them pause. Iran would have struck lucrative new commercial arrangements with Russia, China and some European governments. A Middle East arms race would already have been ignited.

Still, the damage would at least be limited to what Obama can do between now and January 2017. It could be further mitigated if a strong Republican presidential candidate made it clear that the next American administration will regard the jihadist regime as what it is: an enemy, not an ally.

That may be the best we can do . . . but we have to do it.

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