The Corner

Maybe Congress Will Finally Stand Up to Obama if He Bypasses Them on Iran

Word inside the Beltway is that President Obama intends to reach an Iranian nuclear-weapons deal without involving Congress. Defenders of the Constitution may just sigh and throw up their hands (again). Obama’s plan only adds to the long list of unconstitutional executive actions taken by this administration: refusal to enforce federal laws on health care, immigration, welfare, and crime; refusal to defend federal laws in the courts; appointment of rump officers to federal bodies without Senate advice and consent; targeting of groups by ideology for tax or criminal investigation, and so on.

For the most part, President Obama has gotten away with it. He has been aided and abetted by his supporters in Congress, media, and the academy, who went ballistic over far more serious Bush claims of executive power to pursue the wars in Afghanistan and Iraq.

But this might be the final straw that breaks Congress’s back. Over the last century or more, our executive and legislative branches have understood the Treaty Clause, which requires two-thirds Senate approval for treaties negotiated by the president, to govern important international agreements. This has been especially the case for alliances and arms-control agreements. Virtually every important arms-control agreement of the post–World War II period (and before) has required Senate consent, including the Obama-era New START nuclear-arms agreement with Russia. This was the result of bipartisan agreement in the Senate. Both Senator Jesse Helms and Joe Biden, when a senator, demanded that the Bush administration submit the Treaty of Moscow in 2002, which heavily cut nuclear arsenals, to the Senate.

Refusal to submit an Iranian nuclear deal to the Senate could finally spark a bipartisan response to defend the upper house’s prerogatives, and begin the hard road back to restoring the Constitution’s separation of powers. If Obama could commit the United States to nuclear obligations with the Iranians on his own, he could also make agreements with the Russians cutting nuclear arsenals even farther, hand off a sphere of influence to China in Asia, and enter more free-trade agreements with his favorite nations abroad like Iran. The loss of Senate prerogatives would do permanent damage to the Constitution’s design, which imposes a legislative check on important international agreements, and would infringe on the powers of individual senators of all parties from now into the future. That might finally give Republicans and Democrats the incentive to join together to oppose this new example of presidential violation of the Constitution.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.


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