Last month, Tom Cotton and 46 of his colleagues in the Senate tried to run interference with the Administration's nuclear negotiations with Iran, addressing a letter to the leadership in Tehran that suggested Congress could destroy any legal certainty in an eventual deal with Iran, if not reversing it altogether. At Just Security, Ruti Teitel and I guest-blogged about why the letter was full of confusion about US law and misleading silence on international law. http://justsecurity.org/20867/constitution-international-law-republican-senators-letter-to-iran-nuclear/ Now there is a framework agreement with other great powers and Iran, which is intended to provide a basis for a final agreement to be negotiated by the end of June. Not surprisingly hawks like Bill Kristol, in a sense Tom Cotton's puppet master, are calling for Congress to "kill the deal." http://www.weeklystandard.com/blogs/special-editorial-kill-deal_908909.html
But what are Congress's options? It is hardly imaginable that Congress could require the President, the Commander-in-Chief, to bomb Iran's nuclear facilities. So Congress's power hinges on whether and to what extent the US fulfilling its end of the deal-which is about lifting some, but not all, economic sanctions- can be achieved by the Administration exercising legal authority that does not require any further act of Congress.
Lets take a quick look at what the Iran deal, as reported by the US State Department http://www.state.gov/r/pa/prs/ps/2015/04/240170.htm, says concerning the obligations of the United States. "U.S. and E.U. nuclear-related sanctions will be suspended after the IAEA has verified that Iran has taken all of its key nuclear-related.steps. If at any time Iran fails to fulfill its commitments, these sanctions will snap back into place. The architecture of US nuclear-related sanctions on Iran will be retained for much of the duration of the deal and allow for snap-back of sanctions in the event of non-performance." In other words, the US is committed only to the suspension of sanctions, not to the removal of the legal framework, except in the rather distant future.
Now let's turn to another document, prepared by the Congressional Research Service and published at the end of February 2015.https://fas.org/sgp/crs/mideast/R43311.pdf This study examines the extent to which the President alone has the authority to waive or suspend sanctions on Iran. As far as nuclear-related sanctions go, it seems that there is hardly a provision that could not be waived or suspended or constrained in its application by the President, duly exercising the authority granted to him by statute. Moreover, by agreeing to a deal that refers explicitly only to the "suspension" of sanctions, and which reaffirms that the statutory framework of sanctions will remain in place for years, Iran is essentially acknowledging that it does not expect that Congress will act to remove sanctions.
But what of the possibility of Congress enacting new legislation that would actually strengthen sanctions and otherwise frustrate the implementation of the deal by the President? The first response is, of course, the Presidential veto, and Obama has already declared he will use it. But perhaps Kristol, Cotton and company believe that they can rally enough Senators to override the veto.
So let's take a worst-case scenario of that kind. Would the hard-liners achieve their objectives in regard to Iran? Here the key is that the Iran deal is not a bilateral one with the US. Instead, all of the permanent members of the UN Security Council are on side. And indeed so is the EU. The effectiveness of sanctions at present is due in large measure to the multilateral framework. If the US Congress were to try to scuttle US adhesion to the Iran deal through new sanctions, it is highly likely that sanctions in the EU and elsewhere would still be lifted. The Administration could still vote at the UN in favor of removal of current Security Council resolutions and their replacement by a new resolution that will "endorse" the deal. If Europe and the rest of the world were open for business with Iran, Iran would have achieved, essentially, the objective of removing much of the economic harm from its isolation from the world economy. It would be American businesses that would be punished, as economic opportunities with Iran were exploited by their competitors in Europe and elsewhere. Must reading here is a book by Harvard political scientist Lisa Martin, Coercive Collaboration http://www.amazon.com/Coercive-Cooperation-Lisa-L-Martin/dp/0691034761, about how collective sanctions, if the coalition imposing them maintains solidarity, are much more likely to be effective than unilateral ones, even by as economically powerful a state as the US. Since Martin published her book in the early 90s, there has been a significant reorganization of global economic power, if anything away from the US. With the possibility of the EU, China and Russia as full partners in economic relations, Iran will no longer be isolated. Nor is it likely that enough Senators to override the veto would vote for legislation that punishes financial institutions and companies in, say, the EU and China for dealing with Iran-Wall Street and other US economic interests will vigorously oppose it, and with good reason, given the realities of global economic and financial interdependence. Such curbs could well violate WTO and other trade obligations of the United States and lead to highly strained trade and financial relations with key allies.
So even on the scenario of support in the Senate at a level that would override a Presidential veto, Iran would get most of what it wants out of the deal. And, as noted, a key deliverable is a new Security Council resolution, something that Congress cannot prevent.
What about international law? In the Just Security post,Teitel and I addressed the question of whether Congress can simply prevent the President from effectively entering the US into binding obligations under international law. Our answer is, clearly, no. In a sort of glissage between domestic and international law, some critics of a deal have argued that the only way that such an agreement could be binding on the US in the future is if it were consented by the Senate as a treaty or by Congress as a congressional-executive agreement. But even if this were true, it would very unlikely affect the responsibility of the United States under international law, though there might be some domestic law consequences. In any case, probably embodying the key elements in a UN Security Council resolution would be quite adequate for all practical purposes in establishing the deal as at the international plane as the agreed normative framework on this issue. Even if there were no treaty within the international law meaning of that expression (and none seems planned), a final Iran deal could easily be viewed as a set of parallel unilateral declarations; and as we know from the Nuclear Test Ban case, and more recently the WTO US-Section 301 panel, such declarations can easily have international legal effect. That would render the confusion spread by Senator Cotton and others about executive agreements and Congressional approval entirely moot.
In sum, what the deal's opponents in Congress are left with is the rather empty hope that they could override a Presidential veto to produce a new unilateral (and therefore likely ineffective) sanctions regime; or that a new US President would be sympathetic to their cause. Certainly President Obama is right to suggest that starting a war with Iran is an option unpopular with the American people. In all probability, the next President will no more want to go down that path than Obama himself, nor want to be saddled with a sanctions regime ineffective in changing Iran's behavior in the intended way (because unilateral), which harms US economic interests while dividing us from our European allies and much of the rest of the world.
