Letter to the Editor: A Reply to David Golove on Iran

David Golove makes a compelling argument as to why a recent Senate bill – the Iran Nuclear Negotiations Act of 2014 – would have the “perverse” effect of strengthening the President’s hand vis-à-vis Congress rather than doing the opposite. As we keep on learning, in the arena of foreign relations, intended outcomes are rare.

However, true as his description is, it ignores one important element: whatever agreement is made between the P5+1 and Iran negotiating parties – which, incidentally, already has a title, the Comprehensive Joint Plan of Action – it is unlikely to be an “international agreement” as a matter of US law. That much was clear from the remarks of the US’s chief negotiator, Wendy Sherman, before the Senate Foreign Relations Committee on July 29, where she said that the President has the constitutional authority to conclude “political agreements” without requiring the approval of Congress. This voiced what was long suspected by those who have watched the negotiations closely: the US and Iran negotiating parties would insulate any agreement reached from their respective legislatures, each of which remains overwhelmingly hostile to a nuclear deal. (Iran, too, has constitutional procedures – not unlike our own – for ratifying international agreements, and friction was already generated following the Joint Plan of Action concerning President Rouhani’s authority to conclude an agreement without the approval of Iran’s Parliament.)

The Administration’s reading is not without warrant. Under the Case-Zablocki Act of 1972, which was designed to constrain the President’s power to enter into agreements without notifying Congress, there are identified (or created) three tiers of “agreements”:

  1. treaties;
  2. international agreements other than treaties (which the Case-Zablocki Act specifically targets);
  3. and those that fall below the threshold of “international agreements”

Guidance is provided at 22 CFR §181 as to “whether an undertaking, oral agreement, document, or set of documents, including an exchange of notes…constitutes an international agreement within the meaning of the Act.” This includes looking at the intent of the parties, such as whether they “intend their undertaking to be legally binding and not merely of political effect,” and the “significance of the arrangement,” including its “political significance.” Under the Case Act, the Secretary of State is then empowered to make final decision as to the ultimate characterization of an agreement. (Thus, while Sen. John McCain might be personally convinced that the agreement being negotiated is a “treaty,” his basis for considering it to be so is unclear and likely inspired more by policy preference than any affinity to constitutional text.)

Extrapolating from the Joint Plan of Action, which most believed was deliberately couched in such a way as to not be legally binding on the parties, and Sherman’s remarks before Senate committee, the White House looks prepared to make the case that any nuclear agreement with Iran falls below the threshold of an “international agreement” and thus can be concluded solely on the basis of the President’s constitutional powers. This will be based on, first, the language of any Comprehensive Joint Plan of Action, which will avoid that which mandates particular outcomes and instead will choose language emphasizing the “quid pro quo” nature of the agreement, and, second, the fact that the agreement reached will not be bilateral (i.e., between the US and Iran) but rather multilateral (i.e., between the US, its P5+1 partners, and Iran). This latter element is significant insofar as 1 U.S.C. §112b(e)(2)(b)(ii) would treat mere “arrangements,” if bilateral and with a designated state sponsor of terrorism, as “international agreements” within the meaning of the Case-Zablocki Act (Iran remaining a country so designated). Conveniently, the very format of the negotiations (i.e., multilateral) avoids this outcome for the Administration.

That being said, political wisdom would seem to dictate that the Administration provide notification to Congress at least as to the text of any nuclear agreement. It is unclear what occurred in the case of the Joint Plan of Action’s implementing agreement (though the JPOA itself was released publicly), but Secretary Kerry and others have signaled the Administration’s intent to present the text of a final deal to Congress. Considering the fact that a US-Iran nuclear deal would be a significant undertaking, even if phrased in such a way as to drain it of legal effect, giving clear expression to this intent might go a long way to satisfying the demands of some in Congress, who fear that the White House is shutting them out of a process for which they feel responsible. As Professor Golove makes clear, this is constitutionally uncertain ground on which the White House is treading, and careful steps, inclusive of the legislative branch, might go a long way to steadying its ultimate course.

Tyler Cullis is a Legal Fellow and Policy Associate at the National Iranian American Council, where he has focused on the legal and policy aspects of the Iran nuclear negotiations. His work has been published at CNN’s Global Public Square, The National Interest, The Hill, BBC Persian, and Opinio Juris, amongst others. Recently, he has conducted briefings for Congressional staff regarding the US-Iran negotiations and has drafted policy memos regarding US sanctions on Iran. 

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