Trump should send Obama’s JCPOA to the Senate.
It’s the “dumbest” deal he’s ever seen. On the hustings, that was Donald Trump’s constant refrain about President Obama’s Iran nuclear deal — the Joint Comprehensive Plan of Action (JCPOA). And given that he pegs NAFTA as the “worst trade deal maybe ever signed anywhere, but certainly ever signed in this country,” that must make the JCPOA pretty, pretty dumb.
That means it would be dumb not to fix it. The president-elect has a golden opportunity to do just that. He need not rip up the agreement. He just needs to do what he committed to do: Restore constitutional order.
Messrs. Trump and Obama deserve kudos for the high-minded manner in which they’ve conducted what appears to be an efficient, cooperative transition — one that defies the rancor of the campaign and the ongoing effort to delegitimize Trump by “the professional left” (that’s the Obama administration’s pejorative for the president’s base). As is appropriate to the continuance of a helpful dialogue between the two men, they have maintained the confidentiality of their conversations. It is no secret, though, that Obama regards the JCPOA as a legacy achievement. He is undoubtedly urging its merits, such as he claims them to be, on his successor.
For his part, Trump has been ambiguous, perhaps strategically so, on how he intends to handle the Iran deal, variously suggesting that he would tear it up, restructure it, or — in a significant departure from the Obama administration — hold the mullahs to its strict letter.
I would propose a different tack: Trump should treat the Iran deal the way it should have been treated all along — as a treaty.
Doing so would help President Trump accomplish two critical objectives in one fell swoop. First, without necessarily dismantling any benefits Obama may have secured, Trump would lawfully transfer to himself the power to renegotiate the deal on better terms — the signature skill on which he built his successful White House bid. Second, he would reverse a perilous constitutional setback that purports to create American legal obligations through international proceedings in which powers hostile to the United States — Russia, China, and Iran itself — weigh in, but the American people’s elected representatives are frozen out.
It cannot be stressed enough that the Iran deal is not law, at least for the most part (more on that caveat momentarily). An international agreement becomes legally binding on the American people only if it is ratified as a treaty or enabled by ordinary legislation. Neither is true of the JCPOA. It is therefore a mere executive agreement that may be canceled at any time. The fact that Obama signed it and got it endorsed by the United Nations Security Council is insufficient, under our Constitution, to create legal obligations. Indeed, that is why there is rampant speculation about what Trump might do — had the agreement been ratified or statutorily enacted, there would be nothing to discuss.
There is a complication (isn’t there always?). When the Obama administration signed the JCPOA, Congress did not do what it should have done — namely, either (a) nothing at all or (b) pass a “sense of the Senate” or “sense of Congress” resolution affirming that, for an international agreement to be legally binding, the Constitution requires the president to present it to the Senate for approval or seek legislation implementing its terms. Instead, Congress foolishly enacted legislation — the Iran Nuclear Agreement Review Act (INARA) — which allowed the president to claim a legislative imprimatur with only one-third support from Congress.
I will not rehash the demerits of INARA — I have already done that repeatedly and at length (see here and follow the links). It is not my intention here to provoke more debate with Senate Foreign Relations Committee chairman Bob Corker, who says he is a staunch opponent of the Iran deal. I am proposing a way for Senator Corker to lead a meaningful opposition.
INARA is relevant for present purposes because, as I have previously explained, it arguably repealed sanctions against Iran’s nuclear program. Although the language is less than clear, I believe the courts would see it that way.
To be sure, several JCPOA bells cannot be unrung at this point. Other countries are acting on the lifting of sanctions, as are American companies like Boeing, which has struck a $17 billion deal to build new planes for the world’s leading state sponsor of terrorism (which uses planes to abet Hezbollah and the Assad regime). That was Obama’s strategy: Since congressional objections would prevent him from making the deal legally binding, he endeavored to make it politically binding by encouraging nations and corporations to enter huge commercial arrangements with Iran — daring the next president to pull the brake-cord on the gravy train.
But the brute fact remains: Obama did not comply with the Constitution, so the JCPOA does not affect American legal restrictions on commerce with Iran. Even though building the international sanctions regime back up to pre-JCPOA strength would take time, it is worth the effort because American legal sanctions remain the most consequential in the world — a fact that Iran recognizes by continuing to rail against them, and that Congress has just reaffirmed by enacting a 10-year renewal of sanctions (which has become law because Obama failed to veto the bill, though he will continue waiving the sanctions).
To the extent that this renewal of sanctions leaves any doubt about the matter, the new Congress could quickly enact a bill, ready for President Trump’s signature right after inauguration, stipulating that all congressional sanctions that were in place when the JCPOA was signed are reinstituted and remain valid. That would reset the clock.
The brute fact remains: Obama did not comply with the Constitution, so the JCPOA does not affect American legal restrictions on commerce with Iran.
President Trump could then do what President Obama should have done: Submit the JCPOA to the Senate as a treaty for its review. This time, the administration and the Republican-controlled Congress would be working in conjunction rather than at cross-purposes. That means Senator Corker, rather than futilely trying to pressure the White House and State Department for cooperation, could expect full compliance with his demand for disclosure of all written side deals and oral understandings among the parties. That includes agreements that should have been in the main JCPOA but that Obama, in order to keep Congress in the dark, allowed to be consummated as private deals between Iran and the International Atomic Energy Agency.
Simultaneously, President Trump should announce that the United States does not consider itself bound by Security Council Resolution 2231, which endorses the JCPOA. Trump could explain that international endorsements cannot suffice to create American legal obligations in the absence of adherence to U.S. constitutional procedures. He could elaborate that this is not a rejection of the resolution, any more than submission of the JCPOA for Senate review is a tearing up of the agreement. It is, rather, a delay in further international proceedings while Trump complies with his oath to preserve, protect, and defend our Constitution and to see that our laws are faithfully executed.
The Senate should then do what it was unable to do in 2015: perform its constitutional advice-and-consent function. Senator Corker could ensure that all agreements and understandings attendant to the JCPOA are fully examined in hearings. His committee could test President Obama’s principal claim in favor of the agreement — namely, that it provides truly verifiable restrictions, including meaningful inspections, to prevent Iran from weaponizing nuclear materials.
Equally critical: Corker’s committee could debate whether it is sensible to lift sanctions while Iran not only continues to be the world’s leading state sponsor of terrorism but is also actively engaged in enhancing its ballistic-missile and other defense capabilities. In fact, as Michael Rubin notes in Commentary, Iranian president Hassan Rouhani has declared that Iran will now begin developing nuclear-powered marine vessels. The JCPOA permits Iran to produce low-enriched uranium, purportedly for civilian uses. But because some U.S. submarines are powered by highly enriched uranium, Rubin explains that Rouhani’s scheme could provide Iran with the pretext “to enrich uranium to bomb grade” — just as the U.S. does for non-bomb purposes — “without admitting that its goal is a nuclear weapon.” Such an outcome is precisely what Obama claims the JCPOA prevents.
Meanwhile, Claudia Rosett sounds the alarm that Iran may be working with North Korea on nuclear-missile development. If so, this would blatantly violate the JCPOA. It is thus quite disturbing that, for the past eight weeks, the Obama administration has ducked pointed questions from Senator Ted Cruz (R., Texas) about collaboration between Tehran and Pyongyang. Simultaneously, fresh off an agreement with China to upgrade its military capabilities (and arm its atrocious client, the Assad regime in Syria), Iran is in talks with Russia about a major arms deal. If the JCPOA truly promotes American national security, why are Russia and China, JCPOA signatories, working to make the jihadist regime an even more lethal threat?
#related#In sum, instead of ripping up the Iran deal, President Trump should subject it to the Constitution’s searching process and invite the Senate to conduct an up-or-down vote to get each senator on record. President Obama says the JCPOA is in America’s interests, that it is truly effective in preventing Tehran from developing nuclear weapons and truly worth the cost of lavishly enriching a jihadist regime. Real Senate scrutiny would show for all to see whether this is the case. If it is, the JCPOA would earn the required two-thirds approval — although it would remain President Trump’s decision whether to ratify the pact.
I am betting, however, that the JCPOA would be defeated by an overwhelming bipartisan margin. This would do two salutary things: (1) It would undermine the absurd Obama-administration stance that the only alternative to appeasing Iran is war, and (2) it would strengthen President Trump’s hand in driving a harder bargain with Tehran. The only language the mullahs understand is blunt resolve; it must be made clear to them that their provocations will be met with painful consequences, not panic.
So how about it, Mr. President-elect? Here’s a chance to show our declared enemies and the world how the art of the deal works in an America-first administration. Here’s a chance to renew our Constitution’s pride of place in international relations.