When a couple of lawyers lecture you about your “fundamental misunderstanding of our Constitution and the relative powers of Congress and the president in foreign policy,” ask yourself this: Have they cited the provisions of constitutional or statutory law they claim you’ve misunderstood? If not, if they’re hiding the ball, you’re probably being conned. Alas, that is the case with the disingenuous defense of Senator Bob Corker’s Iran Nuclear Agreement Review Act of 2015 (INARA), offered on Thursday by Lester Munson and Jamil Jaffer, two former staffers on the Senate Foreign Relations Committee, which Corker chairs.
The senator’s nose is out of joint over a National Review editorial this week. With his name among those being floated to be appointed secretary of state in the Trump administration, the editors observed that Corker “was last seen facilitating President Obama’s Iran-deal path through Congress, in one of the prime exhibits of GOP fecklessness in recent years.”
Truer words were never spoken. Professors Munson and Jaffer try in vain to paper over this fact, replaying the sleight-of-hand their former boss has spun since first proposing the woeful INARA. They misstate both the law and the position of INARA naysayers — of whom, I am proud to say, I was among the most ardent.
Let’s deal first with the matter of misrepresenting the naysayers. Contrary to the professors’ claim, it is not true that “many people think Congress ought to have ‘forced’ the president to submit the Iran deal as a treaty.” Nor do Corker’s detractors believe “Congress should have ‘made’ the Iran deal a treaty.” Congress has no power to coerce the president to comply with the Constitution’s treaty clause (art. II, sec. 2, cl. 2), a provision the authors take pains to avoid addressing.
What we in the opposition argued is that, if Congress does not undermine it, the Constitution is plenty strong enough to foil the ambitions of a rogue president. True, Congress cannot compel the president to execute our law faithfully. But if the president is derelict in his duty to submit an international agreement to the Senate for its approval, or to the full Congress for implementation as ordinary legislation, then the agreement will not have the force of American law. It remains a mere executive agreement between the president and other chiefs of state. That means it may be rescinded at any time, by either the president who entered it or a successor president.
The principal purpose of Obama’s agreement with Iran was to eradicate the sanctions that Congress had enacted in various statutes since Khomeini’s 1979 revolution, at least insofar as those sanctions were aimed at Iran’s nuclear activities. This brings us to Munson and Jaffer’s most mendacious claim, a repetition of the tale woven by Corker in a rambling interview with Fox’s Bret Baier back in June (wherein the senator accused yours truly of making “purposeful misstatements” about his legislation).
According to this story, Congress’s anti-nuclear sanctions already contained provisions that enabled Obama to terminate the sanctions. As Munson and Jaffer put it, “The fact is that since a previous Congress already gave the president waiver authority to get rid of sanctions,” Corker and GOP congressional leadership had no recourse but to pass a bill that, though perhaps imperfect, would at least force Obama to disclose the agreement to Congress. This claim is the crux of their defense, so Munson and Jaffer repeat it for emphasis: “President Obama planned to use the waiver authorities already provided to him in U.S. law to relieve sanctions in exchange for minimal curbs by Iran on its nuclear activities” (emphasis added).
As Senator Corker is fond of saying, that’s a lot of malarkey.
You probably don’t need me to explain why that is so — although I’m going to momentarily. Your common sense will tell you that if what Messrs. Corker, Munson, and Jaffer have been saying were true, there would have been no need for the Iran deal at all, much less for any further congressional action, or for the Security Council resolution to which Obama resorted in lieu of complying with the treaty clause. If, as Corker & Co. claim, the sanctions as written had actually given the president the power to terminate said sanctions, Obama could simply have decreed them null and void. Unlike many of this president’s executive actions, such a decree would have been perfectly legal if truly rooted in statutory law.
But in reality, Corker and his former staffers are distorting the sanctions. That is why they so conveniently neglect to cite or discuss the relevant statutes.
The sanctions law is usefully summarized by the Congressional Research Service in a report from earlier this year, entitled “Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions” (see pp. 5 & ff.). Most germane is the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA, codified at Title 22, U.S. Code, Sections 8501 et seq.).
To be sure, CISADA did provide very narrow termination authority, but only if the president could make two certifications to Congress. So outlandish are these certifications that even the Obama administration, at its farcical worst, has not dared make them. They are (to quote from section 8551):
(1) Iran has ceased providing support for acts of international terrorism and no longer satisfies the requirements for designation as a state sponsor of terrorism; and
(2) Iran has ceased the pursuit, acquisition, and development of, and verifiably dismantled its, nuclear, biological, and chemical weapons and ballistic missiles and ballistic missile launch technology.
As Corker, Munson, and Jaffer well know, the Obama administration concedes that the jihadist regime in Tehran continues to support terrorism and remains one of only three countries our government designates as state sponsors of terrorism. Indeed, the administration further admits that Tehran will divert some of the lavish money streams it got from the Iran deal to terrorist organizations. It goes without saying, moreover, that a major purpose of the deal, from Tehran’s perspective, was the preservation of Iran’s nuclear and other weapons programs.
Therefore, it has always been inconceivable that Obama could make the certifications required to enable his unilateral termination of sanctions. Only congressional action could “get rid of” them. For Corker and his allies to continue claiming otherwise is beneath them. In fact, their position that the president had unilateral power to end the sanctions is belied by the very legislation they tout but (of course) refrain from quoting. The INARA explicitly states: “The sanctions regime was imposed by Congress and only Congress can permanently modify or eliminate that regime” (quoting INARA, subsection (c), “Effect of Congressional Action with Respect to Nuclear Agreements with Iran”).
So existing sanctions law did not give Obama termination authority. It gave him waiver authority, a term the professors misleadingly use as if it meant termination (to quote them again, with my italics: “a previous Congress already gave the president waiver authority to get rid of sanctions”). Presidential waivers merely suspend the sanctions. Obama wanted to end them. Since the certifications were a non-starter, he could not accomplish that without new legislation from Congress. That’s exactly what Senator Corker gave him.
I will agree with the senator and his former staffers on one point: President Obama was misusing the waiver process. Under CISADA, he was permitted to waive the sanctions only if doing so was “in the national interest of the United States.” Clearly, giving Tehran any relief, however temporary, was an outrage: Iran was (and is) a committed enemy of the United States; it has never stopped supporting anti-American terrorists, enhancing its arsenals, and menacing American military personnel. Yet regardless of how abusive Obama’s waivers were, they did not and could not terminate the sanctions.
Had Congress taken no action, the most Obama could have done was suspend enforcement of the sanctions temporarily, until the end of his presidency. Just like the immigration laws that Obama refuses to enforce, the sanctions would have remained live federal law. Their enforcement could have been revived the moment a new president was sworn in.
Unfortunately, that’s where Corker’s INARA came in, “facilitating President Obama’s Iran-deal path through Congress,” just as NR’s editors said it did. Corker accomplished this by undermining the same Constitution that his former staffers accuse others of failing to understand.
Here’s what I understand from placing the treaty clause in the separation-of-powers framework of the Constitution: There can never be any justification — no way, no how — for doing what the INARA did in forfeiting Congress’s power to prevent bad international agreements from becoming enforceable American law.
Corker’s INARA turned the Constitution on its head in a manner that ensured the Iran deal’s approval.
Because the Framers were leery of foreign entanglements, they ensured that international agreements would not be legally binding unless Congress concurred in a president’s claim that they served America’s interests. Thus, to be cemented in law, such agreements must be either (a) ratified after Senate consent by a two-thirds supermajority or (b) implemented through legislation passed by both congressional chambers in the constitutional manner — i.e., enacted by simple majorities in the House and Senate.
Corker’s INARA turned the Constitution on its head in a manner that ensured the Iran deal’s approval. The senator and his fellow Beltway solons tried to camouflage this under a byzantine process, at the end of which Congress would inevitably “fail to disapprove” the pact — i.e., rather transparently approve it (and approve it is what they in effect did, no matter their indignation at being called on it).
Under the INARA’s terms, President Obama would be permitted to terminate the nuclear sanctions — not just waive them, as he had been doing, but terminate them, which he could not do without congressional assent — unless Congress enacted a “resolution of disapproval.” As Corker well knew, there was no possibility that this would happen. Because Obama was ripe-dead certain to veto any disapproval resolution, it could not be enacted absent an override of the veto by the constitutionally required two-thirds supermajorities in both chambers of Congress. Not only did the Democrats have the numbers to block this; they had sufficient numbers under Senate rules to stop a resolution of disapproval from even being voted on.
That is to say: The moment Corker’s INARA was signed into law, it became inevitable that the Iran deal would have the congressional imprimatur needed for permanent sanctions relief. This is what big companies like Boeing — a major GOP donor — needed in order to feel safe conducting commerce with Iran.
In fact, it is not enough to say that Corker’s legislation reversed the Constitution’s presumption against bad international deals. It is worse than that. Under the Constitution’s treaty provision, the president must persuade two-thirds of a single chamber, the Senate, to approve a deal with a foreign government. Obama would never have been able to do that on the Iran deal. But under the INARA, the burden was shifted and multiplied: It fell to opponents of the deal to persuade two-thirds of both chambers to vote the deal down. In Corker’s construct, Obama was assured of victory with the approval of just a one-third super-minority in either chamber — the minimum necessary to preclude a veto.
Now, let’s put the treaty route aside and consider what Obama would have needed to get the Iran deal’s nuclear sanctions lifted through the normal legislative process — you know, the one in which Congress takes clear, accountable votes to approve or disapprove things, as opposed to such INARA chicanery as railing against the president’s deal for the cameras while rigging the vote to “not disapprove” it.
Under the Constitution’s procedure, Obama would have needed simple majorities in both chambers (which translates to 60 votes in the Senate under its parliamentary rules) to lift the sanctions permanently. He would never have been able to achieve this. But again, Corker rode to his rescue: Under the INARA, Congress endorsed the lifting of sanctions on the condition that no “resolution of disapproval” was enacted. Under that hocus-pocus, the president no longer needed to persuade a simple majority of both houses to repeal the sanctions; instead, opponents of the deal needed supermajorities to preserve them (i.e., the two-thirds margins needed to override Obama’s certain veto). The opponents’ failure was guaranteed.
Given how this all played out, one might think Corker’s former staffers would be too embarrassed to repeat the senator’s other absurd rationalizations for INARA. But no. So we hear once again that the INARA must have been good because Obama was against it. That may have been true initially, but Obama signed the INARA. As things evolved, he realized it was a coup.
At first, Obama had no intention of going to Congress. Not knowing how easy it would be to roll GOP leadership, he calculated that he had no chance of getting his legacy “achievement” approved as either a treaty or legislation. Thus, the president’s original plan was to (a) make a beeline to the United Nations Security Council; (b) get its resolution endorsing the deal; (c) argue — unconstitutionally — that this U.N. resolution made the deal binding international law despite the absence of U.S. congressional assent; and (d) persuade big corporations and financial institutions to enter long-term commercial deals with Iran. This scheme was more political than legal: Change the facts on the ground so drastically that, even if the deal was not binding under federal law, other countries that wanted lucrative Iran business would revolt if the next president tried to rescind Obama’s handiwork and revive sanctions enforcement.
But then Corker decided that, rather than steely opposition, bipartisan cooperation — with Democrats generally supportive of Obama’s Iran policy — was the way to go. With Democrats “helping” Corker write the INARA, Obama realized he’d get a windfall: not just the Security Council resolution but also congressional legislation that would effectively repeal the sanctions.
With Democrats ‘helping’ Corker write the INARA, Obama realized he’d get a windfall: not just the Security Council resolution but also congressional legislation that would effectively repeal the sanctions.
In the end, he was perfectly content to sign the INARA. The professors’ suggestion that he signed it reluctantly because he feared a veto is laughable. As we’ve recently seen with the 9/11 victims bill, when Obama does not support legislation, he vetoes it regardless of whether there is a risk of override. Obama supported the INARA for the same reason that Democrats so overwhelmingly leaped on board: It guaranteed the outcome he wanted.
That outcome is a disaster for U.S. national security — worse than what would have happened if Congress had done nothing. I explained why that is so when Congress failed to enact a disapproval resolution: The language of the INARA can be read to state that Congress has lifted the sanctions.
In brief, Corker’s legislation made clear that the purpose of the Iran deal was to lift the nuclear sanctions permanently; with that knowledge, Congress expressly approved the commencement of this sanction-lifting. Congress further agreed to accept the president’s proposal to end the sanctions — subject only to a disapproval resolution, which Congress, under the INARA formula, then chose not to enact. Corker’s text is not a model of clarity, but you can bet that this is how the INARA would be interpreted by many, many federal judges (nearly 400 of whom have been appointed by President Obama).
Had there been no INARA — even better, had the Republican-controlled Senate and House passed resolutions affirming the sense of each chamber that the Iran deal was a non-binding executive agreement that needed congressional approval in order to have legal effect in the United States — President Donald Trump could have, upon his inauguration, simply rescinded the deal and announced that all congressional sanctions would henceforth be fully enforced. But thanks to Corker’s INARA, it is very likely that the nuclear sanctions are dead; they’d have to be reenacted from scratch. Indeed, it is the assumption that the INARA killed the sanctions that induced big corporations to commence business with Iran — such as Boeing’s aforementioned $17.6 billion deal to supply aircraft to the “Death to America” regime.
As Munson and Jaffer note, Republicans signed on to Corker’s INARA in droves. And why not? The INARA’s theatrical process allowed them to posture as fierce “anti-Iran hardliners” (to borrow the authors’ description) even as it guaranteed Obama’s victory. Perhaps they were just foolish — with the honorable exception of Harvard Law School–educated Senator Tom Cotton (R., Ark.), who alone grasped the problems enough to vote “no.”
Even in disagreement, I admire a number of these lawmakers. I also believe that Senator Corker — and other principal INARA supports, like Senators Mitch McConnell, John McCain, and Lindsey Graham — really do oppose our Iranian enemies. That’s why I spent so much time and energy pleading with them to reconsider their course. I think they just miscalculated. Some of them naively believed that, somehow, an administration more contemptuous of Congress than any in our history could be squeezed into revealing the terms of the atrocious deal. Many of them, mindful of the 2016 election then on the horizon, undoubtedly believed the political upside of hammering Democrats on Obama’s Iran policy outweighed the legal downside of allowing Obama to eradicate the sanctions.
But all that said, and after all that we now know, it is just stunning that Munson and Jaffer could write the following passage:
So, what did the American people get from INARA? Transparency, for one thing. INARA forced the Obama administration to submit the deal to Congress so the American people could see just how bad it was. Congress got a real vote on the deal.
As the professors well know, the Obama administration did not submit the complete deal to Congress. Terms that went to the heart of the pact were withheld. The administration furtively structured the agreement so that key provisions — involving disclosure of the history of Iran’s nuclear endeavors, along with inspection procedures (some of which allow Iran to self-inspect) — were tucked into side deals between Iran and the International Atomic Energy Agency (IAEA). Congress was denied inspection of these deals.
We now also know there were secret arrangements between the Obama administration and the mullahs to forgive Iranian noncompliance regarding caps on retention of low-enriched uranium and heavy water. The administration further agreed that the IAEA would no longer provide broad reporting on Iran’s nuclear programs. And who can forget the notorious ransom? Although the INARA directed Obama to disclose all ancillary agreements to Congress, the administration concealed the arrangement by which it paid Tehran $1.7 billion in exchange for the release of four American hostages — a ransom paid in cash under the guise of settling 38-year old financial claims from a failed arms deal.
Note that the administration’s transparency default was critical: It gave Senator Corker and Republican lawmakers one last chance to abandon the INARA. Congress’s agreement to review and vote on the deal was contingent on the administration’s full disclosure. As I urged at the time, since Obama failed to perform his obligation, Congress could have said: All bets are off. And why not? By that point, lawmakers had gotten the limited disclosure Obama was going to give them – so if, as Corker claims, that was the point of the INARA, it was mission accomplished.
Mulishly, Corker, McConnell, and other GOP leaders proceeded with the INARA process — the futile quest for a vote on a disapproval resolution. Obviously, the legal effect of doing so was to forgive Obama’s noncompliance with the INARA’s disclosure requirements. That is, because Congress went ahead with the vote despite knowing that critical information was being withheld by the president, no court would entertain any future claim that the administration’s fraudulent concealments nullified the INARA’s termination of the sanctions.
And then, to add insult to injury, because Corker and McConnell did not get Democrats to agree that there would be a vote if the INARA “resolution of disapproval” process went forward, Democrats were able to block the vote. Thus, Republicans even failed to get Democratic senators on record supporting Obama’s Iran deal — one of the purported benefits Corker had told us the INARA would achieve.
Senator Corker and his former staffers are the ones who labor under “a fundamental misunderstanding of the Constitution and the relative powers of Congress and the president in foreign policy.” That, at least, is the most charitable interpretation of their claims. Those claims were specious when first posited. They have grown only more risible with time.