If you’re puzzled about the Iran treaty

Ordinarily, when a treaty is proposed, the question is “will the Senate ratify it?” So what’s all this “sixty day review period” business in regard to the Iran deal, and why is President Obama talking about vetoing what Congress does? Here’s the skinny. 

In 2010, Congress enacted sanctions on Iran, subject to waiver by the President at his/her discretion. (It has a long, boring title, but we’ll call it “the 2010 act.”) As negotiations heated up, Congress passed another law (the “Iran Nuclear Agreement Review Act” or the “Corker Act,” but we’ll call it “the 2015 act”) which limited the President’s authority under the 2010 act. This latter act required that if the President should conclude an agreement that obliges Presidential waiver of the sanctions pursuant to the 2010 act, the President could take no such action for a period of time while Congress considered whether it approved of the agreement; for reasons that we can skip, the period of time that actually applies is sixty days. The 2015 act then (inter alia) abrogates the President’s waiver authority under the 2010 act “if, during the period for review … there is enacted a joint resolution stating in substance that the Congress does not favor the agreement.” But if no such joint-resolution is “enacted” within the sixty-day period, the President may thereafter exercise his waiver authority under the 2010 act. It is that joint-resolution on which Congress will vote at some point in the next sixty days.

The problem (perhaps unrealized by the 2015 act’s supporters) is that joint-resolutions are subject to Presidential approval or veto. The President may prevent the “enact[ment]” of such a joint resolution by vetoing it, which will preserve the authority he gained from the 2010 act. It is this veto that the President has threatened to wield. 

Finally, you may wonder what happens to the agreement itself, regardless of whatever drama ensues on the hill. The Senate will not consider and vote upon the agreement itself because it is not a treaty. The significance of this distinction depends upon your vantage-point. From the perspective of American constitutional law, an executive agreement is non-binding: There are disagreements over what exactly a treaty, but only a treaty binds. If this deal is a treaty, it might trigger constitutional obligations; if it’s merely an executive agreement, it can’t. You may remember Senator Cotton’s letter to Iran’s foreign minister a few months back underscoring all this. He was right. The irony, however, is that from the standpoint of international law, such an agreement may well be binding on us, and we may well place ourselves in material breach of international-law obligations if we don’t do what we promised. You may also remember the Iranian foreign minister’s response to Senator Cotton, in which he noted that America would, if it defaulted on promises it made in such an agreement, become an outlaw nation. He, too, may have been right. So, great job, there, President Obama: You have created a situation in which Iran could, with some justification, soon be calling us an outlaw regime.