I respectfully part company with my colleagues who write, in today’s NR editorial, that the bill sponsored by Senator Bob Corker, which purportedly enables Congress to approve or disapprove President Obama’s elusive Iran deal, is “better than nothing.” It is worse than nothing as the deceptive appearance of opposing something one is actually enabling always is.
The editors concede that the Corker bill is a “weak measure.” That is putting it mildly.
The Iran deal is of significant enough national security consequence that it should be treated as a treaty, subject to the Constitution’s condition precedent of supermajority approval (two-thirds) before it can be ratified. To be sure, a practice has snowballed over the last century under which international understandings are treated as executive agreements not subject to the Constitution’s treaty process. This has happened largely because the number of international arrangements has increased, and most of them (though not all of them) are uncontroversial.
Nevertheless, this practice has not repealed the Constitution’s treaty clause. There is no enforceable legal test for when an agreement must be treated as a treaty. As I noted in an exchange with the Lawfare Blog’s Jack Goldsmith yesterday (my post here; Jack’s here and here), it is a political issue to be worked out by the political branches. That’s unfortunate since we are currently saddled with historically feckless leadership in the Republican Congress, which has preemptively surrendered to the president by expressly forfeiting the powers the Constitution provides to rein in executive overreach and lawlessness. (As I recount in Faithless Execution, during the debates at the 1787 convention, when presented with a hypothetical about a president who tried to rig the Constitution’s treaty procedure so that only friendly senators would vote on it – it being inconceivable to the framers that a president would altogether ignore the Treaty Clause – James Madison remarked: “Were the president to commit any thing so atrocious … he would be impeached and convicted.”)
But here is a good rule of thumb: an international pact must be treated as a treaty when Congress insists that it be treated as a treaty. We always seem to default to a discussion of the president’s powers. But that is not the be all and end all here. It is not like the Senate is asking Obama for a favor: the power to review treaties is a prerogative the Constitution explicitly vests in the Senate. When the Senate insists on exercising its indisputable prerogative, it should be irrelevant that, under some circumstances, presidents have legitimately proceeded without Treaty Clause compliance.
As I argued in a column this weekend, the Corker bill undermines the Treaty Clause. The latter puts the onus on Obama to find 67 votes to approve his deal. The Corker bill puts the onus on opponents to find 67 votes to disapprove the deal. The supermajority approval requirement for treaties is in the Constitution because we should not be making lasting agreements with other countries, even allies, unless there is a strong consensus that the arrangement is in the national interest. Corker’s bill turns that presumption on its head, requiring supermajority disapproval for an arrangement with an enemy regime that is plainly not in the national interest.
So what convinces the editors that the Corker bill is, nonetheless, better than nothing? The fact that it would purportedly require the president to produce the text of the agreement so it can be made public. But there are two problems with this conclusion:
(a) Who’s gonna make me? What if the president, as he often does, simply ignores any statutory “requirement” that gets in his way – see, e.g., Obamacare, immigration law, narcotics law, law requiring congressional notification before transferring Taliban jihadists out of Gitmo, etc. What is Congress going to do about it – write a strong letter? As long as Obama believes that politically he can get away with ignoring the Treaty Clause and proceeding by executive agreement, the deal will be whatever he decides to make it just before Iran signs off and the pact is submitted to the U.N. Security Council – not the Senate – for a resolution of endorsement. A Congress that has shown no inclination to combat Obama’s lawlessness can provide us with no assurance that Obama will comply with a statutory requirement to produce the text of the agreement.
(b) What difference, at that point, will it make? As the editors concede, there will not be enough Democratic votes to override Obama’s certain veto of a Corker bill “resolution of disapproval” – in fact, there may not be enough Democratic votes to allow Congress to vote on a resolution of disapproval. Thus, even if we assume for argument’s sake that Obama will forthrightly provide Congress with a final, accurate text of an agreement with Iran in which there are no discrepancies between the English and Persian understandings of the words used, the Corker bill will not enable Congress to disapprove a bad deal.
Some claim that is inconsequential because Congress cannot stop Obama from cutting a deal with Iran in any event. Not true. We all know that the Obama administration and its media friends will spin a congressional failure to enact a resolution of disapproval as its opposite: congressional approval – however tacit – of Obama’s Iran deal. That will encourage other countries to rely on the deal, making it far more difficult, if not impossible, to undo.
The Corker bill undermines an essential constitutional check on dangerous abuses of presidential power. In exchange, it not only achieves nothing useful, and probably nothing at all; it creates ambiguity that Obama will spin as support, and that Iran and its helpers in Moscow and Beijing will use to accelerate the permanent unwinding of the sanctions regimen.
The Corker bill is thus worse than no bill. Congress should demand that Obama’s Iran deal be submitted to the Senate as a treaty. It should enact sense of the House and Senate resolutions that the deal will have no binding legal effect and that countries that act in reliance on it do so at their peril because the United States reserves the right to cancel the deal at any time.