The prospect of a successful conclusion to the ongoing negotiations with Iran over a nuclear deal promises to generate a debate over fundamental constitutional questions about the President’s power to conclude international agreements. Does the President have a constitutional obligation to submit the kind of agreement anticipated with Iran either to the Senate as a treaty (requiring the consent of two-thirds of the Senators present) or to Congress as a Congressional-Executive Agreement, or may he conclude it on his own constitutional authority as a sole or unilateral executive agreement? Given the continuing state of congressional politics, the debate, unfortunately, is likely to take on a powerfully partisan cast.

Matters will only become more complex, moreover, if Congress adopts a bill that a group of leading Republican Senators—among them Senators Graham, McCain, and Rubio—recently introduced in the Senate. The bill, the Iran Nuclear Negotiations Act of 2014, seems designed precisely with these issues in mind. It seeks to ensure congressional participation in the approval of any nuclear deal that may be reached as well as to force an end to negotiations beyond November 28, 2014. Section 3(a) requires the President, within three days of concluding such an agreement, to submit it to Congress for review. On an exceedingly expedited schedule—which is more likely to promote political grandstanding than reasoned deliberation over the agreement—Congress directs itself to consider whether to pass a joint resolution disapproving the agreement. See §§ 3(b) and (c). Should the President fail to submit the agreement in a timely fashion, or should Congress adopt a joint resolution of disapproval, the bill proscribes the use of any currently available State Department funds to implement the agreement. See § 3(d). Moreover, after November 28, 2014, the bill provides that the sanctions regime in place before the interim agreement with Iran was reached in November 2013 will be reimposed by statutory fiat. See § 5.

On close analysis, the logic of the bill’s design seems seriously flawed and may well serve to defeat, not advance, its own apparent objectives. Indeed, at least if adopted as currently drafted, the President will be well placed to argue that the bill strengthens, not weakens, his authority, effectively empowering him to make the agreement without the need to obtain any congressional (or senatorial) permission. In this respect, the bill could follow a well-established, albeit perverse, pattern, most famously illustrated by the War Powers Resolution, which Presidents have frequently interpreted to augment rather than limit their authority.

I. Constitutional questions of executive authority to conclude international agreements

Begin by considering three possible options for how the President may proceed with a nuclear agreement with Iran:

Option 1: Conclude it as a Unilateral Executive Agreement (constitutionally weak)

Option 2: Conclude it as a Treaty with the consent of two-thirds of Senate (constitutionally strong but not the only acceptable means of obtaining congressional approval)

Option 3: Conclude it as a Congressional-Executive Agreement (constitutionally strong and an alternative to the treaty option)

3-A: Obtain new congressional legislation approving the agreement after it is negotiated (ex post Congressional-Executive Agreement)

3-B: Claim authorization to conclude the agreement on the basis of existing congressional legislation (ex ante Congressional-Executive Agreement)

Whether particular international agreements require either senatorial or congressional approval is a much vexed question. Constitutional rules in this area are not only highly contested, but also, even when answers are or should be reasonably clear, they seem to provide only limited constraining power on the conduct of Congress and the executive. In this instance, the arguments in favor of unilateral executive power are, in my view, weak (Option 1). The agreement would deal with a surpassingly important foreign policy and national security question and would impose substantial obligations not only on Iran but also on the United States. For example, the United States (along with other nations) would presumably have to agree to limit future sanctions against Iran, thereby entering into an area in which Congress, under its foreign commerce and other powers, has broad authority. Even assuming that the President has sufficient existing statutory authority to lift existing sanctions, and thus carry out the agreement without the need for further legislation, the agreement would still make promises constraining congressional discretion in the future. For the President to claim a power of this nature would be virtually to deny that the principle of shared decision-making applies to the conclusion of international agreements, an approach that flies in the face of the text, theory, purposes, and history of the Constitution.

Of course, it would be naïve to think that the President would be without arguments and precedents that could be cited in favor of a unilateral presidential power. He would likely emphasize the need for special powers in the context of national security and point to a number of precedents—most of them highly controversial even at the time—that rested on expansive claims of presidential commander-in-chief power to enter agreements necessary for national defense. He might enthusiastically cite a famous 1817 agreement made by President Monroe—the Rush-Bagot Agreement—in which the President, initially on his own authority (though later consented to by the Senate), agreed with Great Britain to demilitarize the Great Lakes.

Though my own view is that the argument in favor of unilateral presidential power is weak, I nevertheless suspect the issue is more likely to be resolved, as has been the case with an increasing number of issues during the course of the past several decades, in light of “the imperatives of events and contemporary imponderables,” rather than “abstract theories of law.”  Congressional dysfunction makes that result both more likely and more understandable, if not more desirable. As Justice Jackson perceptively anticipated in the Steel Seizure case, these pragmatic considerations may well point in the direction of a unilateral presidential power and, in any case, provide the most reliable guide for predicting how the Constitution will operate in practice.

Assuming that the President nevertheless concedes a lack of unilateral presidential power, there remains a question whether the agreement needs to be submitted as a treaty to the Senate (Option 2), rather than to the Congress as a Congressional-Executive Agreement (Option 3). The former requires a supermajority of Senators, and the latter just requires a simple majority of both Houses of Congress. On this issue, the President would be on strong ground in claiming authority to opt for either method of obtaining approval of international agreements. The interchangeability doctrine holds that the President is always (or virtually always) free to choose. Moreover, there are substantial precedents since World War II that would support the use of the Congressional-Executive Agreement form in the context of arms control type agreements. Even the proposed legislation—offered by Senators, not members of the House—seems to contemplate the propriety of the Congressional-Executive Agreement form in this instance.

Indeed, given the solidity of the argument in favor of the Congressional-Executive Agreement, it is conceivable that the President might forego resting on unilateral presidential powers in favor of making a claim that existing congressional legislation already authorizes him to conclude an agreement with Iran (Option 3-B). That would obviate any substantial constitutional dispute and transform the debate instead into one over the interpretation of existing congressional laws. How plausible any such argument might be remains to be seen, but there are a number of potential statutory provisions, including the Atomic Energy Act of 1954, that the President would look to in constructing such an argument. Moreover, it would hardly be the first time that Presidents have adopted strained interpretations of statutes to justify undertaking controversial measures while managing to avoid adding an even more controversial claim of constitutional power into the mix.

II. Iran Nuclear Negotiations Act of 2014: Constitutional implications and logic of design

The picture would change somewhat in the unlikely event that Congress were to adopt the Iran Nuclear Negotiations Act.  (Note, the President will presumably veto the bill, if Congress actually adopts it). Perversely, however, the Act might actually strengthen the President’s hand. Although it appears to be aimed at ensuring congressional participation in the approval of any nuclear agreement with Iran, it does not actually mandate affirmative congressional approval, but, rather, insists that the President submit the agreement for possible congressional disapproval. This approach is odd in part because Congress always has the power to adopt a joint resolution overriding for domestic law purposes an existing treaty or agreement and thus “disapproving” it. The proposed bill thus does not seem to add anything to Congress’ already existing powers.

Even more significantly, however, by insisting that the President submit an agreement for possible disapproval, the bill seems to imply that, even without the need for any congressional or senatorial involvement, the President is already within his rights in making such an agreement. Do the sponsors of the bill believe the President can conclude the agreement as a unilateral executive agreement, that existing statutory authority already authorizes him to make it, or that the bill itself implicitly does so? These conclusions seem doubtful, but consider the practical impact of the bill:  If the President must obtain congressional approval before concluding the agreement—as the Constitution seems to require—then the agreement has to be approved by majority votes in both Houses of Congress, which empowers a simple majority in either House to vote it down. In contrast, under the procedure proposed in the bill, Congress can block it only by adopting, over the certain veto of the President, a joint resolution of disapproval, which requires a two-thirds majority in both Houses. Thus, the bill empowers just a small fraction (one-third plus one vote) in either House to ensure the agreement’s validity.

In fact, the bill goes still further down this path. Rather than mandating that the agreement is not valid until approved by Congress, it provides only that no remaining State Department funds for the current fiscal year can be used to implement it in the event Congress disapproves it (overriding a presidential veto) or the President refuses to submit it at all. Denying funding is a real consequence, but the bill, again oddly, prohibits the use of only FY 2014 State Department funds to implement the agreement. That means the President can potentially still use funds appropriated to other agencies (e.g., the Energy, Defense, and Treasury Departments) for purposes of implementation and even possibly funds appropriated to the State Department in future years (unless subjected to the same restriction in future legislation).

Moreover, assuming that the denial of funds would nevertheless make implementation of the agreement practically impossible, the bill seems to get to this result in the most damaging way. The President will have concluded the agreement and thus, in the most dramatically public manner, bound the United States internationally to comply with it. Instead of preventing that from happening without congressional approval, the bill raises the prospect of Congress forcing the United States to violate its obligations and reveal itself as an untrustworthy international actor. Why should Congress proceed in this reckless way? Why should it do so when it would be on firm constitutional ground in insisting on submission of the agreement for its approval or rejection before it becomes binding on the nation?

Ironically, the bill’s final provision, which would reimpose preexisting sanctions on Iran after November 28, 2014, could force the President to submit the agreement for approval either by Congress or two-thirds of the Senate. Assume that the President has not reached an agreement with Iran before November 28. Sanctions would then snap back into force. Assume further that the reimposition of sanctions would not scuttle the negotiations. In order to eliminate the sanctions, the President would have to submit any agreement he reached thereafter to either Congress or the Senate. Unilateral executive agreements do not override existing law in the way that treaties, if self-executing, do and as Congress can and does when it approves a Congressional-Executive Agreement. The reimposition of the sanctions would thus effectively enforce the constitutional requirement for shared power in approving international agreements. In contrast, under the bill as drafted, so long as the President concludes the agreement before November 28 (and submits it for possible disapproval), the sanctions will not be in place, and he can effectively make the agreement on his own authority. Perhaps, then, the effect, it not the purpose, of the bill is to give the President a safe harbor period (until November 28), in which he is authorized to make an agreement, subject only to the weak constraint of being overruled by a Congress subject to the veto power.

One final point:  Even if Congress does not adopt the bill, its introduction alone seems to offer the President one more dialectical weapon in a possible power struggle with Congress over an Iranian nuclear deal. Ironically, it is precisely the very Senators who are attempting to insist on a role for Congress in approving any such agreement who, in the bill, seem to recognize, even if unintentionally, that the President already has sufficient constitutional authority to conclude such an agreement on his own unilateral powers. The White House will be able to say, “Senators X, Y, and Z have themselves (implicitly) accepted that the President has the authority to enter this agreement without them.” In this sense, whatever short-term political gains may have been generated, introduction of the bill disserves the larger institutional interests of Congress.