What Can Republicans Do about Biden’s Russia-Engineered Iran Nuclear Deal II?

If Republicans can illuminate the risks of engaging in commerce with our Iranian nemesis, many businesses will decide those risks are not worth running.

‘I t’s unconscionable.” That is how Senator Ted Cruz (R., Texas) exquisitely described the Biden administration’s determination to lift the economic sanctions against Iran — the sanctions that former President Trump reimposed when he renounced the Obama–Biden administration’s Iran nuclear deal. Because “it’s unconscionable,” Cruz insisted that “Congress must put a stop to it.”

The senator has been a champion of American national-security interests when it comes to the fights against both the 2015 nuclear pact (formally known as the Joint Comprehensive Plan of Action, or JCPOA) and the even greater abomination with which President Biden — in collusion with Russian strongman Vladimir Putin of all people — is scheming to replace the JCPOA.

Nevertheless, Cruz is also a constitutional-law expert. His word choices are rarely idle. Notice: He said Biden’s scheme is unconscionable. He didn’t say illegal. Therein lies the problem . . . along with the problem of having only one Ted Cruz when, on Iran, we need 60 to force the overhaul of bad law in the Senate.

Congress and Foreign Affairs

The fact is that Congress, especially the Senate, has abdicated what the Framers presumed would be a partnership with the president in conducting foreign policy. A partnership, we should stress, that was designed to proceed with wariness about entanglements even with friendly foreign governments.

As we had occasion to point out many times during the JCPOA debate seven years ago, the Constitution gave presidents a free hand to conduct foreign policy, but consequential agreements with foreign powers — treaties that would impose enduring obligations on the American people — must be submitted to the Senate for its advice and consent. The Constitution’s bias, moreover, is against treaties. They may not be ratified by the president unless the Senate has consented by a two-thirds supermajority. The Framers’ intention is manifest: Because foreign powers are not accountable to the American people, and we therefore are in no position to ensure that their actions — now or in the future — will comport with American interests, we should never make a binding agreement with a foreign power unless it so patently advances American security and prosperity that it can command overwhelming approval from senators who must face voters.

If a president makes an agreement with a foreign power, then, it has no legal effect in the United States unless it can be ratified under this demanding process. The exception to this is ordinary legislation: If the president makes an agreement that is not submitted to the Senate as a treaty but that calls for the U.S. to take legal actions, it falls to the full Congress to decide whether to authorize those actions. Authorizing entails enacting law. Senate supermajority approval is not needed for that as it is for a treaty; but the trade-off is that legislation must be approved by both houses of Congress. Ordinary legislative rules apply, and they provide abundant opportunity to derail proposals that are not in America’s interests.

Progressive Governance Degrades the Constitution’s Protections

With the 20th-century ascendancy of progressive governance, Congress delegated increasing amounts of its authority to the president and the administrative state. Concurrently, transnational progressives pioneered a flurry of multilateral agreements and organizations. With these emerged the panacea of “international law” — I use scare-quotes advisedly because, for the most part, international law is just politics masquerading as law, the better to imbue progressive pieties with coercive moral suasion, even if the people of the nations affected have not and would not adopt these pieties democratically.

In the Iran deal, we see the combustion of these tendencies — the collapse of constitutional law and its supplanting by ersatz international law.

Iran is a committed enemy of the United States — “Death to America” is not just its national motto; it is the precept that guides the regime’s revolutionary jihadism. Of course, unless our security dictates that we must take up arms, we resist going to war, even with our enemies — and even if our enemies deem themselves at war with us. As we’ve observed of besieged Ukraine the last three weeks, wars are atrocious and unpredictable. They cost precious lives and treasure, so we avoid them if we can.

The most rational alternative to military combat is economic sanctions — as we’ve also seen these last weeks, in response to Russia’s barbarism. Sanctions are imposed by law, so theoretically Congress must enact them. But lawmakers have gotten into two terrible habits, undermining their constitutional foreign-affairs powers.

Domestic Law

1. Delegation of Sanctions Power to the Executive

First, Congress enacts legislation that delegates to the president sweeping authority to declare national emergencies based on assertedly “extraordinary” international threats, and thus to impose sanctions. The main vehicle for doing this is the International Emergency Economic Powers Act (IEEPA), under which most U.S. sanctions (including many against Iran) have been lodged.

To be fair, in this instance, Congress did not intend to abandon its powers. To the contrary, the IEEPA was enacted in 1977, the post-Watergate period, when a Congress dominated by Democrats undertook to rein in what it saw as executive power run amok.

Then as now, though, congressional Democrats didn’t worry much about the Constitution when they perceived a chance to seize partisan advantage. In the case of the IEEPA, they figured it was to their advantage to give a sitting Democratic president, Jimmy Carter, awesome powers to declare emergencies and pronounce sanctions. The calculation was simple, if rash: (a) Carter and the Democratic presidents that then seemed certain to follow him would be empowered to act swiftly and decisively, advancing Democratic priorities without the slog of getting legislation approved; and (b) to hedge their bets, congressional Democrats incorporated in the IEEPA a “legislative veto,” which would enable Congress unilaterally to cancel any presidential excess.

Ah, the best-laid plans, etc., etc. The legislative-veto provision was unconstitutional. It violated our law’s fundamental requirement that legal acts be approved by both houses of Congress and signed by the president. Predictably, the Supreme Court invalidated the legislative veto in INS v. Chadha (1983). Once that happened, Congress no longer had an effective check on the vast power over sanctions that it had given presidents in the IEEPA.

2. Unilateral Waiver of Sanctions Power by the Executive

Second, Congress habitually rationalizes that its vital constitutional power to police against the president’s abuse of sanctions authority must give way to “the ability to impose or ease economic sanctions with some nimbleness and responsiveness to changing events” — as the Congressional Research Service puts it in a 2019 report, “Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions.” As a result of this wayward thinking, Congress customarily caveats its sanctions legislation with presidential waiver authority.

A classic example is the Iran sanctions measure known as CISADA — the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010. This legislation is comprehensive in the sense that it addresses the Tehran regime’s nuclear-weapons work, its tyranny against the Iranian people, its facilitation of anti-American terrorism, and the urgent need to mobilize private and public economic actors to starve the regime of funding and resources. But in the end, after imposing new sanctions and reaffirming previously imposed sanctions, CISADA prescribes a “Presidential waivers” provision (Section 8551(b) of Title 22, U.S. Code). See, this was the height of Obama-era Democratic dominance. In firm control of Congress, progressives empowered the new Democratic president to waive any of these sanctions — i.e., to refuse to enforce these measures that Congress has otherwise said are essential — if the president, unilaterally, “determines such a waiver is in the national interest of the United States.”

That’s it. No requirement that the president seek Congress’s permission. No mandate that the president certify that Iran has stopped pursuing nukes, abetting jihadists, developing ballistic missiles, menacing its neighbors, and persecuting its citizens. All the president has to do is say he personally has decided it is in our national interest not to enforce the sanctions.

So then, let’s say our president happens to be a doctrinaire transnational progressive who thinks that (a) Iran has been provoked into bad behavior by American arrogance and aggression; (b) American administrations have been too cozy with Israel and too indulgent of Sunni Arab states at the expense of Iran; and (c) the Middle East playing field would be more level and stable if our government embraced and empowered the Persians. If such a president — like the one we had in 2015, and the one we have now — thus deludes himself into believing that Iran will moderate its behavior if we refrain from enforcing the sanctions, and therefore that this would be “in the national interest of the United States,” he can waive the sanctions. There is nothing Congress can do to stop him.

Nothing except, of course, change the law. That can’t be done, however, in the absence of cooperation from Democrats. Good luck with that: With too few exceptions, the Obama–Biden theory of Iran is the regnant Democratic theory of Iran.

International Law

The JCPOA was agreed to by Iran and the United States, along with five other nations. Four of these, like the U.S., are permanent members of the U.N. Security Council — Russia, China, the United Kingdom, and France; the fifth is Germany, which is the most influential country in the European Union and has extensive commerce with Iran. Half of these six countries are hostile to the United States, and each of them is indifferent, at best, to American law. So, being a doctrinaire transnational progressive, what did Obama do once his negotiating partners agreed to the JCPOA? He endeavored to supplant U.S. constitutional requirements with imaginary international law.

The Obama–Biden administration rejected any claim that the JCPOA was a treaty. It was, the White House maintained, a mere executive agreement that did not call for Senate or congressional review. Yet, simultaneously, Obama joined the other JCPOA nations (including all permanent Security Council members) in elevating their agreement into airy international law, via U.N. Security Council Resolution 2231. That enabled Obama’s partisan and foreign allies to claim that the JCPOA had global legal force. According to this theory, other countries were directed by a Security Council resolution to rely on the United States to perform the obligations to which the Obama–Biden administration had agreed in the JCPOA; future American presidents, therefore, would be bound to honor the JCPOA, even though it had not been ratified as a treaty under U.S. law. Otherwise, America would be condemned as an international outlaw.

Obama is a clever man — too clever to leave it at that. He understood that most Americans, and certainly constitutional conservatives, do not have the same reverence for U.N. resolutions as transnational progressives. Still, he figured that he would be succeeded by Hillary Clinton for a term or two. Obama could not unilaterally repeal sanctions on Iran, but he could waive them, and then Madame President would continue waiving them for the next four or eight years. The initial waiver after the JCPOA would instantly enrich Iran with tens of billions of dollars and a green light to build a “civilian” nuclear-power program befitting a large nation. The subsequent waivers would cement the arrangement.

Obama assumed it would be 2020, and probably later than that, before another Republican was elected president. By then, the facts on the ground would have changed unalterably. Given that the Washington–Tehran relationship would have been transformed, the Republican administration would see no point in inviting claims that it was violating international law by renouncing the JCPOA and reimposing sanctions. Republicans and other Americans would just have to live with the new reality — one in which there would now be precedent that a Security Council resolution trumped the Constitution.

Speaking of “trump,” things obviously didn’t work out as Obama planned. But Trump did not act quickly enough or stay president long enough to demolish the JCPOA and break Tehran’s will. Biden still thinks Obama’s plan was a good one, and he goes into his imminent Iran Deal II with the same advantages Obama had: sanctions-waiving authority that congressional Republicans are in no position to stop him from exercising, and foreign-regime negotiating partners that are American rivals and would like nothing better than to bolster the precedent that the Constitution — by which the American people exercise self-determination — can be overridden by the U.N. Security Council or, in effect, by the tag team of China, Russia, and Iran.

What Is to Be Done?

That is what Senator Cruz and his colleagues are up against. Cruz has explained to NR’s Jimmy Quinn that Republicans are ready for a fight. Unfortunately, the historical developments I’ve outlined above have left their arsenal weaker than their bravado.

In the long term, we need to change the law in a way that will revive the Constitution’s treaty clause, which is in danger of obsolescence. The IEEPA and similar statutes must be overhauled or repealed, in favor of a new system in which the president is forced to ask Congress’s permission, or satisfy stringent congressional conditions, in order to waive sanctions. Congress must resolve that executive agreements are illusory and unenforceable, so that other nations are reminded that the United States recognizes only obligations accepted under American law — treaties and statutes. Presidents should be made to understand that their agreements with foreign powers will not be funded unless they are fully disclosed to Congress and then approved, whether as treaties or through legislation.

That’s fine for aspiration, but what about the here and now?

Well, congressional Republicans need to fully expose Biden’s new Iran deal — its reliance on the very same Russian despot whom Biden has labeled a war criminal, its material support to the world’s leading state sponsor of anti-American terrorism, its sanctions relief to the murderers of hundreds of American troops, its inevitable effort to hide the embarrassing provisions as if they were private agreements between Iran and the U.N.’s atomic-energy agency — the same scam Obama ran in 2015 to withhold information from Congress, as if the U.S. were not a party to these arrangements. To be blunt, Republicans need to use Iran’s terrorism and Russia’s ongoing atrocities as spotlights on this deal, to make it as politically painful as possible for Biden and any Democrats who support it.

Perhaps most of all, Republicans need to put nations, financial institutions, and corporations on unmistakable notice that Biden’s deal does not have the force of law.

Everyone needs to be admonished that, when Republicans are in a position to do so, they are not only going to reimpose sanctions; they will ratchet up sanctions because, by then, Iran will have become more of a menace, thanks to Biden. Those mulling whether to deal with Iran based on Biden’s deal should understand that the U.S. government, under Republican control, will regard them as flouting sanctions. The fact that Biden won’t enforce these sanctions does not mean they have been repealed; they remain American statutory law, and that could make those who do business with Iran — especially those who make long-term commercial arrangements — vulnerable to financially onerous measures when the sanctions start being enforced again. The message should be: If you rely on Biden’s waivers — in an arrangement engineered by Russia in order to empower Iran — you do so at your peril.

Living outside the law, as President Biden plans to do, is a two-edged sword. He may think it frees him to do things Congress would otherwise prevent. But lacking the force of law, Biden’s scheme cannot give participants the protection and stability that treaties and statutes provide. If Republicans competently illuminate the risks of engaging in commerce with our Iranian nemesis, many businesses and financial institutions will decide those risks are not worth running.