Invoking the 'Nuclear Option' Against the Iranian Nuke Deal

Last week, the Congress began debate on President Obama’s nuclear agreement with the Islamic Republic of Iran. Many questions have been raised about the wisdom of the deal, including the lack of verifiability of the inspection regime, the release of over $150 billion that will help fund its ongoing terrorist activities, the secret codicils that the United States is not privy to, the lifting of sanctions on Iran’s ballistic missile program, and the bellicose words of Iran’s supreme leader, who has continued to openly reject the terms of the deal as the president moves forward with its implementation.

As expected, Mr. Obama has sought to demonize opponents of his deal, framing the issue as a choice between the agreement and going to war.  This type of straw man argument has been employed by the White House many times in support of its positions, and is as contrived as it is ridiculous. Recognizing that the alternative to a bad deal isn’t war, but rather a better deal, most Republicans and some Democrats have expressed serious reservations and gone on record as opposing the deal. Given the sizable and bipartisan nature of the dissent, it would seem that the president would stand little chance of the getting the deal approved the Congress. Indeed, the Constitution requires that treaties be ratified by a two-thirds supermajority in the Senate, and even non-treaty agreements require both House and Senate majorities for passage. 

Enter the Iran Nuclear Agreement Review Act of 2015, introduced by Senator Bob Corker (R-TN), and supported overwhelmingly by both parties. It provides for a formal review period of up to 60 days and a vote on a resolution of disapproval that would derail portions of the Iran deal, if passed. However, this resolution would be subject to a presidential veto, requiring House and Senate supermajorities to stop the deal -- or only 34 Democratic Senators to effectively approve it -- thereby perverting the Constitutional process established by the Founders to serve as a check on the president which requires such agreements to be affirmatively approved by the Congress. While this clearly advances the president’s goal, why would congressional opponents ever agree to undermine their role in the debate?

Some have argued that congressional approval is not required -- that the president already has the authority to make the deal with Iran, and that the Corker bill provided the only chance to stop the deal. If true, why would Mr. Obama agree to legislation that would prevent him from making a deal that he already had the authority to make? Clearly, he believed it conferred some benefit, whether legal or political, or he wouldn’t have signed it into law.  And considering the unlikelihood of garnishing enough votes to override a presidential veto, what did opponents hope to gain by agreeing to an extraconstitutional process that actually rewards the president’s lawlessness? Finally, even if a veto were overridden, does anyone expect Mr. Obama to be deterred from implementing as much of his Iran deal as he can get away with, given his record of acting unilaterally and unlawfully on a host of other policy initiatives? 

Whatever the political calculus, the Corker process, while criticized by many conservatives, curiously has been accepted as a fait accompli -- that the Congress must find the votes to reject the Iran deal, not approve it. As such, it has reframed the entire debate and obfuscated the illegitimacy of the process. Notwithstanding Corker, the treaty-making and legislative functions of Congress are not transferable and cannot be delegated under our constitution. Accordingly, the Congress cannot relinquish its power to enact treaties or international agreements to the president in favor of a legislative veto of an executive deal. 

By any objective standard, the substantive provisions of the Iran deal constitute a proposed treaty under the Constitution that requires the advice and consent of the United States Senate in the form of a two-thirds supermajority to become law. While the White House insists that it is an executive agreement, the terms and conditions of the deal itself reflect otherwise. First, it is a binding agreement with foreign powers that commits the United States to take certain actions at odds with current law over a minimum of ten years, long past Mr. Obama’s tenure. Second, that Mr. Obama submitted the deal to the United Nations Security Council for review and subsequent approval -- a questionable move absent congressional approval to begin with -- establishes it as both a treaty under international law and within the scope of the Article II treaty clause, as arms control agreements historically have been construed. Finally, there is the matter of the associated costs of implementation and enforcement, which are estimated to be more than $157 million over 15 years by the International Atomic Energy Commission. Reportedly, the United States has committed itself to paying a portion of this cost, though no such expenditures have been, nor likely will be, appropriated by the Congress. While the powers vested in the president are many, it is clear that Mr. Obama cannot legitimately implement this deal through national security waivers and executive orders without the affirmative consent of the Congress along with enabling legislation. The absence of supermajority vetoes as an imprimatur just doesn’t meet constitutional muster.

That being said, we can expect Mr. Obama to proceed by executive fiat, no matter what the constitution requires. The list of illegal actions taken by this president is as long as it is unsettling. To him, the ends always justifies the means in pursuit of his agenda. Only this time, it means allowing Iran to build nuclear weapons. So the Congress must act to challenge the legitimacy of the process. The stakes couldn’t be higher -- a stable Middle East without the ongoing threat of terrorism and nuclear conflict fostered by Iran cannot be achieved with this deal. Indeed, it will further destabilize the region.

According to every media report and pundit, the political battle is over, now that 41 Democratic senators have pledged to vote with the president either to block a resolution of disapproval or sustain his veto. However, if Republican leaders are willing to show some spine and stop playing into Mr. Obama’s hand, a stalemate is still possible. If the process set out by Corker is not faithful to the Constitution, it should be disregarded. Instead, the Congress should formally declare by concurrent resolution the president’s Iran deal to be a proposed treaty -- a legislative determination that would not be subject to a presidential veto -- and proceed to its consideration (and defeat) in the Senate. This move would remove the veil of legitimacy conferred by the Corker process, and could bolster efforts to stop various provisions of the deal through legal challenges, like the releasing of funds to Iran despite standing and potential claims against it to compensate the victims of its reign of terror.

While such a resolution would surely garner enough support in the House to pass by a simple majority, Democrats in the Senate would filibuster its consideration, requiring the Republican leadership to either invoke cloture (if seven Democrats are willing to break with the president) or amend the Senate rules pertaining to the consideration of treaties. Less than two years ago, Senate Democrats embraced the ‘nuclear option’ when they ended filibusters on presidential nominations, arguing that representative majorities, not a partisan minorities, should determine outcomes. With the security of the United States, Israel, and the entire Middle East at stake, why should arms control agreements be provided any less deference? Indeed, because the Founders understood that agreements with broad support provide for greater stability and accountability in international affairs -- something Mr. Obama apparently does not -- they required a supermajority of elected Senators to consent to treaties negotiated by the president. This rule change would simply require this time-honored wisdom and practice to be followed.

Over the past seven years, Mr. Obama has made it clear that his desire to transform this nation takes priority over deference to our values and traditions, the rule of law, the will of the people, and even our national security. Instead of resisting this effort, the Corker bill actually provides political and legal cover for an arms control deal that is ill-advised and a process that is constitutionally deficient. In a failed attempt to remain relevant in the face of a lawless president, the Congress negotiated away its rightful role in approving international agreements. Now it must act to reclaim it. The critical question is not whether the president will concede, but rather do those who oppose this deal, or the perversion of the process used to adopt it, have the courage to take a stand against yet another act of constitutional malfeasance. It’s about time for Republican leaders remind the president that congressional elections matter, too.

Richard M. Schum is a policy analyst, educator, researcher, and consultant.  He can be reached at rschum@outlook.com.

Last week, the Congress began debate on President Obama’s nuclear agreement with the Islamic Republic of Iran. Many questions have been raised about the wisdom of the deal, including the lack of verifiability of the inspection regime, the release of over $150 billion that will help fund its ongoing terrorist activities, the secret codicils that the United States is not privy to, the lifting of sanctions on Iran’s ballistic missile program, and the bellicose words of Iran’s supreme leader, who has continued to openly reject the terms of the deal as the president moves forward with its implementation.

As expected, Mr. Obama has sought to demonize opponents of his deal, framing the issue as a choice between the agreement and going to war.  This type of straw man argument has been employed by the White House many times in support of its positions, and is as contrived as it is ridiculous. Recognizing that the alternative to a bad deal isn’t war, but rather a better deal, most Republicans and some Democrats have expressed serious reservations and gone on record as opposing the deal. Given the sizable and bipartisan nature of the dissent, it would seem that the president would stand little chance of the getting the deal approved the Congress. Indeed, the Constitution requires that treaties be ratified by a two-thirds supermajority in the Senate, and even non-treaty agreements require both House and Senate majorities for passage. 

Enter the Iran Nuclear Agreement Review Act of 2015, introduced by Senator Bob Corker (R-TN), and supported overwhelmingly by both parties. It provides for a formal review period of up to 60 days and a vote on a resolution of disapproval that would derail portions of the Iran deal, if passed. However, this resolution would be subject to a presidential veto, requiring House and Senate supermajorities to stop the deal -- or only 34 Democratic Senators to effectively approve it -- thereby perverting the Constitutional process established by the Founders to serve as a check on the president which requires such agreements to be affirmatively approved by the Congress. While this clearly advances the president’s goal, why would congressional opponents ever agree to undermine their role in the debate?

Some have argued that congressional approval is not required -- that the president already has the authority to make the deal with Iran, and that the Corker bill provided the only chance to stop the deal. If true, why would Mr. Obama agree to legislation that would prevent him from making a deal that he already had the authority to make? Clearly, he believed it conferred some benefit, whether legal or political, or he wouldn’t have signed it into law.  And considering the unlikelihood of garnishing enough votes to override a presidential veto, what did opponents hope to gain by agreeing to an extraconstitutional process that actually rewards the president’s lawlessness? Finally, even if a veto were overridden, does anyone expect Mr. Obama to be deterred from implementing as much of his Iran deal as he can get away with, given his record of acting unilaterally and unlawfully on a host of other policy initiatives? 

Whatever the political calculus, the Corker process, while criticized by many conservatives, curiously has been accepted as a fait accompli -- that the Congress must find the votes to reject the Iran deal, not approve it. As such, it has reframed the entire debate and obfuscated the illegitimacy of the process. Notwithstanding Corker, the treaty-making and legislative functions of Congress are not transferable and cannot be delegated under our constitution. Accordingly, the Congress cannot relinquish its power to enact treaties or international agreements to the president in favor of a legislative veto of an executive deal. 

By any objective standard, the substantive provisions of the Iran deal constitute a proposed treaty under the Constitution that requires the advice and consent of the United States Senate in the form of a two-thirds supermajority to become law. While the White House insists that it is an executive agreement, the terms and conditions of the deal itself reflect otherwise. First, it is a binding agreement with foreign powers that commits the United States to take certain actions at odds with current law over a minimum of ten years, long past Mr. Obama’s tenure. Second, that Mr. Obama submitted the deal to the United Nations Security Council for review and subsequent approval -- a questionable move absent congressional approval to begin with -- establishes it as both a treaty under international law and within the scope of the Article II treaty clause, as arms control agreements historically have been construed. Finally, there is the matter of the associated costs of implementation and enforcement, which are estimated to be more than $157 million over 15 years by the International Atomic Energy Commission. Reportedly, the United States has committed itself to paying a portion of this cost, though no such expenditures have been, nor likely will be, appropriated by the Congress. While the powers vested in the president are many, it is clear that Mr. Obama cannot legitimately implement this deal through national security waivers and executive orders without the affirmative consent of the Congress along with enabling legislation. The absence of supermajority vetoes as an imprimatur just doesn’t meet constitutional muster.

That being said, we can expect Mr. Obama to proceed by executive fiat, no matter what the constitution requires. The list of illegal actions taken by this president is as long as it is unsettling. To him, the ends always justifies the means in pursuit of his agenda. Only this time, it means allowing Iran to build nuclear weapons. So the Congress must act to challenge the legitimacy of the process. The stakes couldn’t be higher -- a stable Middle East without the ongoing threat of terrorism and nuclear conflict fostered by Iran cannot be achieved with this deal. Indeed, it will further destabilize the region.

According to every media report and pundit, the political battle is over, now that 41 Democratic senators have pledged to vote with the president either to block a resolution of disapproval or sustain his veto. However, if Republican leaders are willing to show some spine and stop playing into Mr. Obama’s hand, a stalemate is still possible. If the process set out by Corker is not faithful to the Constitution, it should be disregarded. Instead, the Congress should formally declare by concurrent resolution the president’s Iran deal to be a proposed treaty -- a legislative determination that would not be subject to a presidential veto -- and proceed to its consideration (and defeat) in the Senate. This move would remove the veil of legitimacy conferred by the Corker process, and could bolster efforts to stop various provisions of the deal through legal challenges, like the releasing of funds to Iran despite standing and potential claims against it to compensate the victims of its reign of terror.

While such a resolution would surely garner enough support in the House to pass by a simple majority, Democrats in the Senate would filibuster its consideration, requiring the Republican leadership to either invoke cloture (if seven Democrats are willing to break with the president) or amend the Senate rules pertaining to the consideration of treaties. Less than two years ago, Senate Democrats embraced the ‘nuclear option’ when they ended filibusters on presidential nominations, arguing that representative majorities, not a partisan minorities, should determine outcomes. With the security of the United States, Israel, and the entire Middle East at stake, why should arms control agreements be provided any less deference? Indeed, because the Founders understood that agreements with broad support provide for greater stability and accountability in international affairs -- something Mr. Obama apparently does not -- they required a supermajority of elected Senators to consent to treaties negotiated by the president. This rule change would simply require this time-honored wisdom and practice to be followed.

Over the past seven years, Mr. Obama has made it clear that his desire to transform this nation takes priority over deference to our values and traditions, the rule of law, the will of the people, and even our national security. Instead of resisting this effort, the Corker bill actually provides political and legal cover for an arms control deal that is ill-advised and a process that is constitutionally deficient. In a failed attempt to remain relevant in the face of a lawless president, the Congress negotiated away its rightful role in approving international agreements. Now it must act to reclaim it. The critical question is not whether the president will concede, but rather do those who oppose this deal, or the perversion of the process used to adopt it, have the courage to take a stand against yet another act of constitutional malfeasance. It’s about time for Republican leaders remind the president that congressional elections matter, too.

Richard M. Schum is a policy analyst, educator, researcher, and consultant.  He can be reached at rschum@outlook.com.