I have great respect and admiration for Jack Goldsmith, especially when it comes to his mastery of international law and its complex interplay with constitutional law. At the Lawfare blog, Professor Goldsmith has penned a thoughtful critique of my weekend column, in which I objected to the Corker bill – the legislation proposed by Senator Bob Corker (R., Tenn.) and others that would govern congressional review of President Obama’s anticipated executive agreement on Iran’s nuclear program. Goldsmith claims that I have distorted both the Corker bill and the Constitution.
Goldsmith and I have a fundamental disagreement about what Obama’s Iran deal is intended to accomplish – and as I shall explain, this is a situation where the de facto has to take precedence over the de jure. But let me state upfront that I do not question that the president (as I have argued many times) has plenary authority over the conduct of foreign affairs and that, as Thomas Jefferson opined, exceptions to that principle must be narrowly construed.
Nor do I, as Goldsmith implies, blame the Corker bill for any deficiencies in the current statutory regiment of Iran sanctions. Indeed, I have argued that the president’s waivers of Iran sanctions are different in kind from, to take some prominent examples, his waivers of Obamacare provisions and of certain enforcement aspects of the federal immigration and narcotics laws. The latter are lawless (though the administration attempts to rationalize them by an untenable interpretation of the prosecutorial discretion doctrine). The former are entirely lawful and written into the sanctions bills themselves.
The problem for Obama is that his sanctions waivers cannot be permanent – the pertinent statutes do not allow for that. (I use the word permanent advisedly. The word binding, which I might otherwise use, has a legal connotation that, as we shall see, can be confusing here.) That is, there are statutory sanctions that would apply to the Iranian government and (mainly) entities that do business for or with it if the president had not waived those sanctions; the statutes that prescribe the sanctions enable the president to waive them for fixed terms; they do not enable the president to provide permanent sanctions relief.
That is a central issue in the administration’s negotiations with Iran (which are taking place within in the P5 + 1 framework – but obviously the U.S. is the principal player). Iran wants permanent sanctions relief. The president wants to give the regime permanent sanctions relief, but he does not have that authority.
This, I think, moves us toward the nub of my disagreement with Goldsmith. He argues:
the agreement the President is negotiating with Iran is by design not legally binding under international law and thus does not even implicate the domestic constitutional framework for approving binding international agreements. [Emphasis in original.]
I have never suggested that the Constitution prevents presidents from making executive agreements with other governments. (Indeed, I wrote favorably about the Cotton letter, which made exactly this point.) I thus agree, in the abstract, that the president’s merely making an agreement with Ayatollah Khamenei would not be de jure binding under international law. But this omits two critical, concrete facts applicable to this particular negotiation:
(a) The only deal the Iranians are interested in is one that is permanent – regardless of whether it can be said to be legally binding – i.e., they want complete sanctions relief, regardless of whether it is by obtaining (1) a guarantee that the sanctions will not be re-imposed (if not by law then by an arrangement that makes “snap-back” of the sanctions illusory as a practical matter); or (2) a substantial payday just for signing the agreement that makes the possibility of re-imposition even more illusory.
(b) Obama’s intention is to submit the deal he cuts with Iran to the U.N. Security Council, where it would be endorsed by a resolution.
Now, you can say all you want that what the president is trying to accomplish here is not technically a “legally binding” international agreement that enjoins our government from re-imposing sanctions. But the practical reality is that Obama is crafting an agreement that is structured to give Iran the equivalent of permanent sanctions relief (by providing so many carrots now that the sticks will no longer matter) and to give other nations the grist to argue that the Security Council resolution makes the agreement binding even if it does not have binding effect under U.S. law. The Iranian foreign minister has already made that contention in response to the Cotton letter. And, as Obama calculates, even if the agreement is not “legally binding,” it becomes very difficult politically for the U.S. to take a contrary position once other nations have acted in reliance on a Security Council resolution (by lifting their own sanctions and conducting significant commerce with Iran).
The way Goldsmith describes the president’s Iran negotiations and the Corker bill, one has to conclude that the ongoing debate about the former is much ado about nothing and that the latter is a complete waste of time. By Goldsmith’s lights, Obama is simply exercising the discretionary waiver authority he indisputably already has, and he is not trying to strike any sort of “binding” arrangement. One wonders why so much effort over something of such apparently fleeting consequence. And for Senator Corker’s part, his bill is not designed to do anything Congress could not already do in its absence: It can approve, disapprove or take no action on Obama’s deal, and whatever it chooses to do would be subject to his veto. So what’s the big deal?
The big deal only becomes apparent if you acknowledge the reality of what Obama is trying to accomplish: Permanent lifting of the sanctions in conjunction with illusory restrictions that will pave Iran’s way to becoming a nuclear-weapons power despite current American law and U.N. resolutions designed to prevent Iran from becoming a nuclear-weapons power.
Just as I do not believe the president is, in fact, only trying to make a non-binding agreement, I do not believe the Corker bill is a case of congressional idling. If the agreement is seen as, in effect, of such potentially lasting significance that it should be treated as a binding treaty, then the Constitution would require Obama to find 67 Senate votes to approve it. As I argued in the column, the Corker bill reverses this: requiring opponents of the agreement to find 67 votes to kill it.
In effect, I take Goldsmith to be arguing that the Constitution’s treaty clause can be reduced to a nullity by simply calling an international pact an “executive agreement” rather than a “treaty.” As unappealing as that contention sounds, there is a good deal of history and practice to support it. This reflects a reality I’ve often addressed: We are more a political society than a legal one.
The Constitution does not resolve with exactitude the division of authorities between the two political branches; nor does it vest the judiciary with clear authority to resolve inter-branch disputes. As a result, presidents trying to achieve particular results in particular circumstances, take whatever seems to be the path of least resistance. Sometimes Congress squawks, sometimes it doesn’t. When it does, there is debate over whether the agreement in question should be treated as a treaty, but I cannot say there is a firmly established legal test for when an agreement is so consequential that it must be treated as a treaty. I don’t think the framers intended it to be a legal determination – it’s a political one.
On that score, I’ve pointed out that the framers assumed impeachment would be a real remedy if a president, in dealing with a foreign country, tried to do something dangerous or treacherous – especially if it involved cutting the Senate out of the loop. Over time, impeachment has become an illusory check on the president, so it should not surprise us that presidents are less concerned about offending Congress by proceeding unilaterally when they calculate there is little political risk in doing so.
All that said, I do not contest, and never have, that there is constitutional license for the president, in his nearly plenary authority over international affairs, to make international agreements (which last only as long as the president chooses to honor the agreement). And Goldsmith is right that I don’t question congressional-executive agreements: If the president can make an executive agreement with another government, and Congress is persuaded to enact – by the normal process – any legislation necessary to implement the agreement, what is there to object to (as long as the agreement does not violate the constitutional rights of the states and individuals)?
The treaty clause, however, is one of the most important, constitutionally explicit restraints on the president’s power over foreign policy. A transformative agreement that significantly impacts American sovereignty and the constitutional or statutory rights of Americans should go through the Constitution’s treaty process – and even a ratified treaty (much less an executive agreement) cannot trump the Constitution (as the Supreme Court held in Medellin v. Texas (2008)).
One last point. Using an example of something I wrote several years ago in support of presidential authority to waive sanctions against countries that run afoul of U.S. prohibitions on trade with Iran, Goldsmith contends that I have reversed my position on presidential authority over foreign policy. I haven’t.
As noted above, the sanctions-waivers we are actually dealing with here are authorized by statute, so this is not a situation where Congress has enacted sanctions that have no waiver provisions and that the president can attempt to trump only by relying on his constitutional authority over foreign affairs. But if we were in such a situation, I would argue that there are some things a president could unilaterally waive over Congress’s objection, and some that he could not.
If Congress tried to impose sanctions directly on foreign governments, I think the president would have a very strong case. If Congress imposed sanctions on private corporations and individuals that did business with certain foreign governments, I think the president would have a less strong case – perhaps a lot less strong. It might also matter whether it was wartime or a time of some true national emergency.
I believe, in any event, that it is out of deference to the president’s considerable constitutional authority over the conduct of foreign affairs that sanctions laws (and some other laws that implicate foreign affairs) contain explicit presidential waiver provisions. Congress does not want to provoke a constitutional dispute that may be detrimental to achieving policy ends that, very often, both political branches support.
That is all the more reason, to my mind, that when an international agreement is of great consequence to American national security, the president should not provoke a constitutional dispute by attempting to act unilaterally. The president should treat the agreement as a treaty – and so should the Senate.