With Ted Cruz in the lead, a group of Republican Senators has sent a letter to the Biden Administration threatening that the Senate, or Congress, could block a return to the JCPOA.
Within the next days or weeks, there may be a consensus in the Vienna talks between the original JCPOA partners on the steps needed to revive the 2015 deal, which was ripped up by Donald Trump in 2019.
The first argument of the Senators is a complete non-starter, legally. They suggest that, because a restored JCPOA would have impacts on US national security, the President is compelled to submit it to the Senate as a treaty. There is simply no basis in constitutional law or political practice for such an obligation. In fact, the original JCPOA was never put to the Senate as a treaty, and the fact that Congress passed a bill establishing a different kind of process for Congressional control, a joint resolution of both Houses, indicates that the legislative branch itself understood that there is no expectation that this kind of agreement be dealt with as a treaty.
But the Senators' second contention has more plausibility, precisely because it is based in the law that Congress passed in 2015 to provide for review of the JCPOA:
the Iran Nuclear Agreement Review Act of2015 ("INARA", 42 USC § 2160e) mandates that your administration submit to Congress for evaluation, within 5 days after it is reached, any agreement related to the nuclear program with Iran, as well as all related documents and side deals. The submission of such materials then triggers a statutorily-defined review process, and includes the possibility of Congress blocking implementation of the agreement.
Under the INARA, the route by which Congress might block implementation is through a resolution of disapproval passed by both Houses. In such a case, the INARA provides that the President would be severely constrained in providing sanctions relief to Iran.
But are arrangements negotiated in Vienna to facilitate the restoration of the original JCPOA an "agreement" within the meaning of the relevant provisions of the INARA?
A Congressional research report of about a year ago provides a sensible analysis of this issue:
Although INARA is not clear on this point, it would seem reasonable for the Administration, if rejoining the JCPOA as it is currently written, to conclude that it is not “reaching an agreement” within the meaning of INARA and, thus, is not obligated to meet the initial transmittal and review requirements. This, in turn, would not trigger the congressional review period and its corresponding restrictions on implementation. On the other hand, it is conceivable that rejoining the agreement may entail a separate agreement of some sort with the remaining parties of the JCPOA that could constitute an agreement under INARA’s definition, in which case transmittal of that agreement may be necessary. In any event, the Administration would be required to keep the appropriate committees apprised of negotiations toward rejoining the JCPOA.
Even on a scenario, though, where the Administration felt compelled, pursuant to the INARA, to submit to Congress the concrete arrangements worked out in Vienna for the restoration of the original JCPOA, this would not delay the lifting of nuclear-related sanctions. S. 135 (c) (2) (C) of INARA permits "action involving any measure of statutory sanctions relief by the United States pursuant to ... the Joint Plan of Action... if, following the period for review..., there is not enacted any ... joint resolution [disapproving the JCPOA]." (Emphasis added.)
In other words, in 2015, by failing to pass a joint resolution disapproving the JCPOA, Congress indicated its acceptance (subject to other existing laws) of any sanctions relief that the President might provide "pursuant to the Joint Plan of Action." Sanctions relief "pursuant to the Joint Plan of Action" includes, obviously, those sanctions listed in Annex II of the JCPOA itself. But the JCPOA prohibits the introduction of any new "nuclear related sanctions." (Article 26) This means that, regardless of what elements negotiated in Vienna might need to be transmitted to Congress as an "agreement" separate from the JCPOA, President Biden has the ongoing authority to lift any JCPOA-related sanctions, without any further consideration or approval by Congress. This includes new "nuclear-related" sanctions imposed by Trump as these are prohibited "pursuant to the Joint Plan of Action."
Of course, this analysis would not apply so simply if the Biden Administration were to agree in Vienna to lift other sanctions not covered by or pursuant to the 2015 JCPOA. But, as the chief U.S. negotiator Rob Malley indicated in a recent MSNBC interview this is not the case. The Administration is only prepared to lift sanctions that are inconsistent with the original deal.
Some might speculate it is no coincidence the outer limits of sanctions relief that the U.S. is prepared to offer Iran coincide with the INARA limits of what the President can do without risking Congressional obstruction.
