Law & the Courts

The Iran Deal and the Rule of Law

President Obama with Secretary of State John Kerry in 2015. (Kevin Lamarque/Reuters)
In bypassing the Constitution’s treaty-approval process to implement his nuclear pact, Obama ensured that his successor could easily discard it.

Has President Donald Trump just shown the world that America’s word is worthless?

That’s one of the chief arguments put forward by opponents of Trump’s decision to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA), a.k.a. the Iran nuclear deal. The president’s dismissal of the concerns of America’s allies and partners in the PK5+1 group that negotiated the deal is being criticized as epitomizing an “America First” approach in which friends as well as foes can no longer count on the U.S. New York Times columnist Roger Cohen argued that after Trump’s decision, the world may come to believe “America’s word is worthless.” His colleague Nikolas Kristof described the move as a form of “vandalism” that demonstrates a similar lack of respect for both alliances and strategic continuity from one administration to the next.

The problem with this argument has more to do with the events of 2015 than with the current debate on the merits of Trump’s decision. Had the Obama administration passed the Iran deal as a treaty, giving it not only greater legitimacy but the force of law, it would be possible to argue that Trump indeed trashed the good name of the United States by going back on the nation’s word. Instead, in deliberately bypassing the constitutional process for ratifying a pact with a foreign power, President Obama and Secretary of State John Kerry assumed that once the deal was in place, no successor would dare try to overturn it.

The jury is still out on whether Trump can, as he clearly intends, turn the clock back to 2013, when international sanctions first brought Iran to the table. At that moment, with the Iranian economy teetering on the edge of collapse, the Islamist regime’s negotiators were shocked to find that every time they said “no” to Western demands, Kerry and his team were prepared to simply accept their refusals and move on to new concessions. The result was a pact granting international approval to a nuclear program that had previously been considered illegal, and making it all but certain that Iran would acquire a nuclear weapon eventually. But since it seemed impossible for international sanctions to ever be reimposed — America’s European partners had happily abandoned them as soon as possible — Obama believed his legacy was safe.

Though the document that contained the final version of the JCPOA was never actually signed by the Iranians, it effectively constituted the most significant foreign treaty negotiated by the United States since the end of the Cold War. Yet Obama and Kerry had no intention of following the process set up by the Constitution for ratifying treaties. Instead, they classified the deal as merely an understanding between the United States and other governments.

The excuse for doing so, as illogical as it was false, was eventually provided by Kerry, at a House Committee on Foreign Affairs hearing: “Well congressman, I spent quite a few years trying to get a lot of treaties through the United States Senate, and it has become physically impossible. That’s why [we bypassed the Senate]. Because you can’t pass a treaty anymore.”

It was an example of the sort of senseless hyperbole that is usually associated with Trump rather than Kerry. But it is also worth noting that within 48 hours of Kerry’s statement, the United States ambassador to the International Atomic Energy Agency submitted to it the document certifying the formal ratification of a treaty: an Amendment to the Convention on the Physical Protection of Nuclear Material, one of four related pacts that the Senate had passed in the years leading up to the Iran deal under the same constitutional ratification process that had been used for more than two centuries. In truth, it was never “physically impossible” to pass a treaty through the proper constitutional channels.

Trump’s decision to withdraw from the JCPOA can’t have shown the world that America’s word is worthless, because the JCPOA never represented America’s word to begin with.

Obama’s brazen refusal to submit the JCPOA to the Senate gave the lie to the notion that America’s word was at stake in sticking to the deal. But in one of the cleverest maneuvers of his eight years in office, he was still able to procure a fig leaf of congressional cover for the agreement, with crucial help from Republicans who were otherwise publicly opposed to his scheme.

Obama was making foreign policy with the same arrogant contempt for the constitutional separation of powers that he had shown in making immigration policy. The likely implementation of the Iran deal without Senate approval was no different from Obama’s executive orders that granted amnesty to millions of illegal immigrants in full disregard of Congress’s refusal to pass the laws he wanted. The difference in this case was the foolish desperation of Republicans to be granted the appearance of having a say in the matter.

That was the context for the Iran Nuclear Agreement Review Act, championed by Senate Foreign Relations Committee chairman Bob Corker. President Trump has accused Corker of being responsible for the Iran deal, and he’s not entirely wrong. While Corker opposed the JCPOA and then voted against it, his bill was always something of a setup for opponents of the deal. It ostensibly placed a check on the president’s extra-constitutional Iran gambit, by giving Congress the right to limit the president’s ability to lift economic sanctions. But what it created was a backward treaty-confirmation process: Instead of requiring the assent of two-thirds of the Senate to the pact, it gave Obama a shortcut.

Under Corker’s legislation, all the president needed to do to thwart a resolution disapproving the JCPOA was exercise his veto power, and then have just over one-third of either the House or Senate sustain it. In the end, the Democrats were prepared to sustain Obama’s veto, and the GOP majority in the Senate could not even muster the votes to end a filibuster of its attempt to override. This allowed the president the ability to claim that the JCPOA had passed Congress, despite majorities in both the House and Senate on record as being opposed to it.

Consensus on any issue is difficult to obtain in the hyper-partisan atmosphere of contemporary Washington. But it is not impossible if there is general agreement on an issue involving national security. Had Kerry brought back from Vienna a treaty that fulfilled Obama’s 2012 campaign promises about ending, rather than merely legalizing and postponing, the Iranian nuclear program, it would have garnered considerable support from Republicans, as well as from allies like Israel and Saudi Arabia that are in the crosshairs of the Iranian regime. Instead, he brought back a treaty that really was impossible to pass through the Senate.

Thus, Trump’s decision to withdraw from the JCPOA can’t have shown the world that America’s word is worthless, because the JCPOA never represented America’s word to begin with. If Obama’s acolytes are now frustrated that his signature foreign-policy “achievement” has been undone with the stroke of a pen, they have no one to blame but their hero himself.

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