With a veto-proof majority, Congress has now adopted the Iran Nuclear Agreement Review Act of 2015, which is purportedly designed to enforce Congress’ constitutional prerogatives. How so? By insisting that the President give Congress a chance to review any Iranian nuclear deal that emerges from the negotiations in Vienna. Yet, Congress may be surprised when it reflects upon the constitutional implications of what it has done. Rather than helping recover Congress’ constitutional prerogatives, the Act instead transforms whatever agreement the President obtains from what would have been a constitutionally dubious exercise of unilateral executive authority (a “sole executive agreement”) into a constitutionally unimpeachable exercise of joint legislative and executive power (a “congressional-executive agreement”). Perversely, in fact, it goes further. Not only does it validate such an agreement, but it also extends the President’s powers beyond what even the Obama Administration was claiming: the Act cedes the President authority to conclude a legally binding nuclear agreement, not just an informal political pact. That what Congress has done seems to fly in the face of what it wished to accomplish is certainly ironic, but perhaps also typical of legislative attempts to rein in excessive presidential claims to unilateral power. Though hiding in plain sight in the Act’s text, no one yet seems to have noticed these implications.
The Act’s basic provisions are fairly straightforward. Once the President concludes a nuclear agreement with Iran, it directs him to submit the agreement to Congress for its review. It also temporarily prohibits him from waiving or otherwise limiting the application of statutory sanctions against Iran for a defined period of time during which Congress may consider whether to adopt legislation permanently blocking implementation of the agreement, as well as a further period in which Congress may consider whether to override an expected presidential veto — all tolled up to 52 days (or in some circumstances longer). However, once the statutory period of delay expires, the President is free to implement the agreement unless Congress in the interim has managed to enact a joint resolution of disapproval over his presumptive veto.
As some commentators have lamented, the Act, in fact, does little to defend Congress’ constitutional prerogatives. Although requiring some modification, as I explain below, their basic point is that nothing in the Act even attempts to assert that the power to make an international agreement like the contemplated Iranian accord is shared among the branches and that before the President concludes any such agreement the Constitution requires that it be affirmatively approved either by the Senate as a treaty (requiring a two-thirds vote) or by Congress as a congressional-executive agreement (requiring simple majorities in both Houses of Congress). Rather, the Act seems to surrender that crucial point, insisting only on a congressional power to block the President’s domestic implementation of the agreement if opponents can muster two-thirds of both Houses to override an inevitable presidential veto.
Ironically, or absurdly, that is a power that Congress would have in any event. Exercising its ordinary legislative powers, Congress can always prevent the domestic implementation of an international agreement and thereby effectively undermine or kill it as a matter of domestic law. To accomplish this result in instances in which a presidential veto will be forthcoming, however, Congress needs veto-proof majorities. That the Act waives Congress’ right to participate in the decision to conclude an agreement, while symbolically reaffirming this conventionally acknowledged but weak power, would seem to represent a hollow victory, at best, for defenders of constitutional principle. (Which is not to deny that the Act may be politically canny, affording congressional opponents of a deal a window of opportunity to organize public opposition to the agreement before the President implements it.)
If for these reasons the Act appears to default on making any serious defense of Congress’ constitutional prerogatives, a more careful reading of the text reveals an even deeper problem, which commentators seem thus far to have missed. Remarkably, the Act actually goes considerably further than they have suggested in surrendering congressional authority. To see why, we need to view the constitutional issues raised by an Iranian deal from a broader perspective. The Obama Administration has taken the position that the President may conclude a nuclear agreement on his own authority without the need for any congressional participation. In the Administration’s view, the President has this power because the contemplated agreement would not be concluded as a “binding” international agreement but rather as a non-binding political commitment. Jack Goldsmith and Marty Lederman have written in support of this position. To be sure, the argument is not without plausibility. As a formal matter, the Treaty Clause, and by extension the congressional-executive form, apply only to the creation of legally binding international obligations not mere political deals, and so, by proceeding in this informal manner, the President arguably can finesse any requirement for congressional participation.
It was wise for Goldsmith and Lederman — and the Obama Administration — to rest on this technicality. The constitutional validity of sole executive agreements has long been a subject of intense controversy. In textual terms, there are strong grounds for doubting whether the sole executive agreement should even be recognized as a valid constitutional form. At the same time, however, Presidents have, in fact, concluded them since the early days following the adoption of the Constitution. It is too late to deny that the President has such authority at least in a limited range of cases. In the early period continuing through the 19th Century, Presidents used the sole executive agreement form only for relatively modest arrangements that had certain recognized features and fell within a handful of accepted legal justifications. By the 20th Century, and particularly beginning in the World War II era, however, Presidents began to assume more expansive conceptions of their powers and, in exercising this claimed authority, generated considerable controversy in a number of instances. Unfortunately, at least based on contemporary practice, it has become extremely difficult to draw clear lines between those agreements that fall within the President’s unilateral powers and those that do not.
My own view is that wherever that line should be drawn in general, a binding nuclear agreement with Iran would necessarily fall outside the scope of the President’s unilateral powers. The vast importance of such an agreement, and the crucial respects in which it would impede the future discretion of Congress to sanction Iran under its power to regulate foreign commerce, make it implausible to conclude that such an agreement falls under the President’s sole executive agreement-making powers. Any other conclusion would be tantamount to according the President plenary unilateral power over the making of international commitments, which, if the Constitution has not been turned on its head, must be wrong. Why create elaborate procedural mechanisms for the approval of international agreements as treaties or congressional-executive agreements, both of which require congressional participation, and then authorize the President to accomplish the same result on his own authority alone? That position is simply untenable.
It is undoubtedly for this reason that, at least until passage of the Act, President Obama intended to eschew making a binding agreement and, instead, intended to conclude some kind of non-binding political commitment. Notwithstanding the apparent comfort of Goldsmith and Lederman with this kind of presidential maneuvering, however, it is surely reasonable to contend that in context the Administration’s approach raises serious constitutional concerns. If the “non-binding” character of the agreement is no more than a diplomatic wink and a nod — a distinction of form without substance for the parties to the agreement — then pursuing this course would arguably constitute an abuse of constitutional process, viz., an illegitimate effort to make an end-run around Congress’ core constitutional powers. Certainly, Congress could reasonably have so maintained.
If this is correct — if the President’s unilateral power to conclude even a non-binding sole executive agreement is doubtful in this context — then the Act appears in a whole new light. Rather than bowing to constitutional necessity, as Goldsmith would have it, it hands the President the power to accomplish what he otherwise could not have without raising serious constitutional difficulties. Astonishingly, Congress has authorized the President in advance to conclude a nuclear agreement with Iran and thereby converted what would otherwise be a constitutionally dubious sole executive agreement into a constitutionally unassailable (ex ante) congressional-executive agreement, obviating any constitutional difficulty.
The Act’s language and structure strongly support this interpretation. The operative provision of the Act is Section 135(c)(2). It provides for three different possible scenarios, including one in which Congress adopts a resolution of disapproval, another in which it adopts a resolution of approval, and still another in which it simply fails to act one way or the other. Thus, under Section 135(c)(2)(B), if Congress adopts a joint resolution of disapproval (requiring a two-thirds majority in both Houses to override a presumptive presidential veto), then the President is prohibited from implementing the agreement domestically. Alternatively, under Section 135(c)(2)(A), if Congress adopts a joint resolution of approval, then the President is authorized to implement the agreement in accordance with his existing statutory powers. Crucially, however, under Section 135(c)(2)(C), if Congress does neither, then the President is in precisely the same position he would have been had Congress formally adopted a resolution of approval: He is authorized to implement the agreement in accordance with his existing statutory powers. Inaction by Congress is thus made the equivalent of an affirmative resolution of approval.
In view of these provisions, it is clear that, appearances notwithstanding, the Act does not actually create a procedure for the approval of an Iranian agreement. Instead, the Act is itself an advance congressional approval of the future agreement the President intends to make. As the text makes unmistakably clear, this ex ante authorization is not left to inference or doubt. Although written in a somewhat twisted passive voice, Section 135(c)(2)(C) provides that:
[A]ction involving any measure of statutory sanctions relief by the United States pursuant to an [Iranian nuclear] agreement … (C) may be taken, consistent with existing statutory requirements for such action, if, following the period for review provided in subsection (b), there is not enacted any such joint resolution [of disapproval].
In other words, under this section, even if Congress does nothing further in relation to an agreement, the President is explicitly authorized — “may” — provide Iran with relief from existing statutory sanctions pursuant to a nuclear agreement so long as the sanctions relief is consistent with existing law. The Act thus provides advance authorization to the President to implement any agreement he may make so long as he provides no greater sanctions relief than is within his existing statutory authorities. Any such agreement becomes an unquestionably valid ex ante congressional-executive agreement, rather than a constitutionally dubious sole executive agreement. Moreover, if any doubt could remain based on the operative language of the Act, Congress effectively removes it by explicitly confirming in Section 135(c)(1)(C) its sense that “this section does not require a vote by Congress for the agreement to commence.” Unless Congress means openly to concede a breathtakingly broad conception of unilateral executive power, this section must mean that the Act provides the necessary authority for the agreement to commence without any further congressional involvement.
As surprising as it may seem that the Act thus converts any non-binding sole executive agreement with Iran into an ex ante congressional-executive agreement, it is even more surprising, and in practice more consequential, that it goes still further in empowering the President. As we have seen, the Obama Administration itself seems to have concluded that, acting on his own powers, the President could make an Iranian deal only as a non-binding political commitment. Presumably, that explains why the Administration chose to proceed in this otherwise highly awkward diplomatic fashion. The Act, however, relieves him of any constitutional necessity for this peculiar approach.
This dramatic implication is easily made plain. To see why, consider that the Act’s operative provisions apply to any agreement the President might conclude with Iran concerning its nuclear program. In this respect, the Act is quite explicit. In Section 135(h)(1), it specifically defines the term “agreement” subject to the Act’s review requirements as “an agreement related to the nuclear program of Iran … regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not …” Obviously made in contemplation of the likelihood that the President would proceed as previously envisioned, the Act sweeps within its terms any and all agreements whether having an internationally binding character or not, thus leaving the President free to decide which way to proceed in his discretion.
That Congress would wish to proceed in this comprehensive fashion is easy to understand and sympathize with. But the consequence of having done so might not have been so obvious to all the Act’s drafters. By defining the agreements subject to the Act to include both binding agreements and non-binding political commitments, the Act effectively authorizes the President to proceed on either track and thereby equalizes the strength of the underlying constitutional justifications for both. There should therefore no longer be any constitutional reason for the President to pursue the artificial device of a non-binding commitment.
The Act thus constitutes ex ante authorization for the President to make not only, as he has intended up until now, a non-binding political commitment with Iran — and for which he may or may not need the constitutional authority of Congress — but also a binding international agreement. In this respect, it adds quite significantly to the President’s authority. My own view is that this implication of the Act is welcome as a political matter, but it is hardly consistent with an effort by Congress to defend its constitutional prerogatives. Instead, the Act appears to be a wholesale surrender of congressional authority.