Should congress have a say so

[NPT]

in the negotiations with Iran? I was reading this piece where Schumer is supporting the bill which gives congress a say so. Personally, I thing congress should always have input into something like this. I don't trust ANY president enough to let them do something like this on their own. After all they are politicians and they are either trying to get re-elected or trying to look good and those things don't always lead to good deals when negotiating.

 

[davegolf]

Great question and I think the Constitution is quite clear - the President proposes and chiefly negotiates agreements while the Senate confirms and ratifies. I have no problem in the law. The term chiefly negotiate could be widely interpreted to mean Congress can "suggest" but their involvement should be limited.

 

[Marvin the Martian]

Congress will have some ability

For example, lifting of sanctions will be a key provision. Most sanctions are either from the executive branch, or were broadly worded by congress to allow the president to decide. Congress can always pass a new set of sanctions with far less discretion. It would have to override a veto, but that isn't impossible.

The hard part is the UN. I don't think congress has the power to tell the US how to vote. If the UN agrees to the deal, all international sanctions are off the table. We could keep ours, and that may be enough to scuttle the deal. But it is one area the executive branch wields the bigger club.

I just wish I would hear what people expect from a deal with Iran. I don't see any way we are going to get Iran to give up all nuclear research, all nuclear materials, a ban forever on nuclear research, just for lifting of sanctions. Iran started a nuclear program in the 1950s. They ran it while they were a close ally of the US under the Shah. It is something they want, I don't know if it is national pride or what, but it has been a priority for a long time.

Whatever a final deal is, it isn't going to be the US best case scenario. We don't have that much leverage. The people opposing this deal have an advantage, they are able to hold out some perfect deal as the alternative. I doubt it is. Out of the myriad of terrible deals we can get, which is the best.

Frankly, I would invite Congress to sit down and discuss what parts of the current framework they do not like and submit that to the president as advice. And the president should read it and take it into account. I'm not sure what that means exactly, but it should not be dismissed out of hand. But the president should not be forced to turn negotiation over to 535 people either.

 

[crazed_hoosier2]

Shouldn't he just follow Art II, Section 2?

Seeking advice and consent of the Senate, with 2/3 concurrence, is not tantamount to "turning negotiation over to 535 (67, actually) people". But it is the way our constitution deals with treaties. The executive branch hammers out the details, then brings it to the Senate for ratification.

Personally -- and allowing that I'm not familiar with all of the details -- I don't have much problem with the framework as I understand it. I fully expect the Iranians to continue their pursuit of nuclear weaponry. But if, as I understand it, the breakout time for them to do so under these provisions really is a year, then that should allow enough time for mobilization to take military action. That really is the key: if/when it's determined that they're in that breakout phase, how much time will there be to mobilize and prevent it?

I've long thought -- and still think -- that it will eventually come down to that. The nations of the world -- including, most importantly, Iran's neighbors -- are either going to accept a nuclear armed Iran or some or all of them are going to take military action to prevent it. The other option is that Iran gives up its nuclear ambitions -- and I think that's unrealistic.

 

[Marvin the Martian]

Well, that's the question isn't it

The UN will be the signatory on the treaty. Does it take 67 senate votes to allow the UN to sign a treaty? As far as I can tell, the major US commitments come in sanctions. One set of sanctions were an executive order, those certainly do not require congress. The other set came from congress but it allows a lot of discretion on the part of the president. If the law allows the president to determine Iran is in compliance, would that require 67 votes?

I looked up a lot of debate on this issue as I thought as you did, the Senate will have to approve. It appears there are an awful lot of people who do not believe this is a treaty. Not in the sense that the US is signing a treaty with Iran. The US is merely voting to allow the UN to sign a treaty with Iran. It doesn't seem that would require congress. And that makes sense, we don't turn every UN vote over to the Senate.

What we miss is that the world isn't convinced it is a military nuclear program. It can be converted, but even the Mossad seemed to believe the work thus far is civilian. I am not sure our hand is particularly strong in this game.

 

[crazed_hoosier2]

Two different things.


Does it take 67 senate votes to allow the UN to sign a treaty?

Well, of course not. But it does take the advice and consent of the Senate by way of a 2/3 vote to ratify a legally binding treaty between the US and some other nation(s). This was the point of Cotton's letter -- along with the obvious upshot that, failing this, the agreement doesn't have very strong roots in US law and policy.

What the UNSC does is a whole other matter entirely. The UNSC doesn't trump the Constitution when it comes to US law. But the US representation on the UNSC is directed entirely by the executive branch. Congress' role there is limited to Senate confirmation of the Ambassador to the UN.

It appears there are an awful lot of people who do not believe this is a treaty. Not in the sense that the US is signing a treaty with Iran.

The only way the US could have a treaty with Iran is for the president to present a framework to the Senate for ratification requiring 2/3 vote.

But this is not a binary thing. In other words, there are options beyond "nothing" and "formal treaty." In fact, the Review Act being pushed by Corker, Menendez, etal resides on the premise that this isn't a treaty.

The US is merely voting to allow the UN to sign a treaty with Iran.

UN sign a treaty with Iran? Now you have me confused. I can't say I've followed all this down to the minutiae. But I have to imagine the policy vessel being employed here will be one or more UN Security Council resolutions.

What we miss is that the world isn't convinced it is a military nuclear program.

Well, what people believe and what actually is are two different things. It seems patently obvious that there is no appetite, outside of Dick Cheney and Bibi Netanyahu, for any kind of military action against Iran at present. And, best I can tell, there's no justification for one. To me, the key has always been the contingencies available if/when Iran does veer down that path (as well, of course, as having reliable information that they are or aren't).

My understanding is that this framework, properly executed, keeps breakout time to a year. If that's correct, then it seems there would be plenty of time and opportunity to take action when/if necessary.

 

[Rockfish1]

It depends on what they'll say

Here is a good explainer on treaties and executive agreements. Short take: Presidents of both parties have long employed executive agreements instead of formal treaties. (The executive agreements don't require Senate approval, but they aren't binding on subsequent Presidents.) Sometimes that's controversial, but usually not.

What's really going on here is a political argument, and not a Constitutional argument. This is an extremely controversial issue, and Congress understandably wants to be heard on it. Meanwhile, Barack Obama sees much of Congress taking its cues from Bibi Netanyahu (R-Israel), who wants to kill any deal, and not just this one. Obama understandably doesn't want to let a Congress with no rational alternative kill what could be an historic agreement. We'll see how it goes.

I'd echo what MtM says below: The framework's opponents have an obligation to explain what they we think we should do instead. So far the alternatives I've heard are (1) war with Iran; or (2) a fantasy that we could kill this deal yet somehow retain international support for even tougher sanctions, which would bring Iran to its knees. Needless to say, I think all of that is at best half baked.

This post was edited on 4/7 12:56 PM by Rockfish1

 

[TheOriginalHappyGoat]

The Senate doesn't ratify treaties.

This is a common misperception. The President actually ratifies treaties, after he has the consent of the Senate to do so.

 

[Rockfish1]

As I understand it . . .

An agreement with Iran would become a treaty if (1) Barack Obama presented it for the Senate's advice and consent; (2) the Senate gave its consent; and (3) Obama thereafter ratified it. The treaty would become the law of the land and bind future American governments. If Obama declined to present the agreement for the Senate's advice and consent, then the agreement couldn't become a treaty and wouldn't bind future American governments, But unless and until some future government repudiated it, it would nevertheless determine the two countries' respective rights and obligations as between them.

There are two big hitches. The first is the pending legislation that would require Obama to present the agreement to Congress, although apparently not as a treaty. If Congress passed that law then proceeded to reject the treaty with a veto-proof majority, that would blow up the deal. It might well blow up the deal before Congress ever got around to repudiating it because Iran's own hardliners would presumably love the excuse. It could even blow up the deal if Obama vetoed it, because as Iran is well aware some of the sanctions can't be lifted without Congressional action, and if Congress made clear that it wouldn't allow our government to comply with the agreement, then it's unclear why Iran would enter into it in the first place.

As I argued above, this isn't a constitutional debate, it's a political debate. It would be an exceptional achievement for Obama to prevail on this -- which is why I doubt he will. The politics seem too toxic.

 

[TheOriginalHappyGoat]

I think you have it right...

However, I think there is one issue that hasn't been fully fleshed out in Court, which is the status of international obligations that are created under the auspices of previous Article II Treaties, such as the North Atlantic Treaty and UN Charter. This was an issue during the Libya bombing. If that's the case, then such obligations might be binding federal law until such time as Congress explicitly repudiated them. Maybe.

In as far as these obligations might contradict existing federal law, such as statutorily-mandated sanctions, I'm not sure of any clear case law on that. I only recall studying how treaties trump state laws.

goat

 

[CO. Hoosier]

There are such things as international executive agreements

Trade agreements are an example. These need only be "approved" by congress with a simple majority. Here's the rub. SCOTUS has held these agreements to be enforceable by implying congressional approval in unrelated legislation. I guess this gets back to the common law of agency and POTUS being cloaked with apparent authority to bind the principal. In any event, to ensure that the record is clear, the Cotton Letter would be very useful. However, even that wouldn't clear the air since the letter was only a letter signed by some members--but it doesn't hurt.

 

[crazed_hoosier2]

Distinctions and differences.

How about this: a treaty can't be ratified without Senate consent, in the form of concurrence of 2/3 of those Senators present.

Let's not confuse things with semantics, especially ones that carry no meaningful distinction.

 

[Noodle]

Don't you think that an executive agreement rather than a treaty should be


preferable to those opposed to the deal (assuming, of course, that a treaty could be ratified by the Senate)? The reason I say that is because an executive agreement is far easier to undo later than it would be to rescind or alter a treaty. So, whether for political reasons, or because we find out later that Iran is not living up to its commitments in the EA, the next President would be able to easily nullify the EA. Rescinding or terminating a treaty, on the other hand, can get really, really messy, even if the President has the full backing of the Senate.

The Supreme Court held (OK, technically not a holding, at least not in the stare decisis sense, right?) in Goldwater v. Carter that the question of whether a President can unilaterally nullify a treaty is a political one, and therefore not justiciable. However, nullifying/terminating a treaty, whether by presidential fiat or with Senate approval, raises issues under international law, the Vienna Convention, etc.

And, for the record, I firmly believe that Iran will have a nuclear weapon within 10 years--regardless of whether the EA is entered into, and regardless of who the next President is. I'll but you a beer in 2025 if I am wrong.

 

[TheOriginalHappyGoat]

Actually, it's a very meaningful distinction.

The treaty is not binding until the president ratifies it. There is not method for he senate to force him to or to override him. In theory, the senate could approve a treaty and the president could unilaterally decide not to ratify it.

Not sure how important that distinction is for this particular topic, but it's absolutely not just semantics.

 

[Rockfish1]

I don't know

Since I can't ascertain any coherent (nonpartisan) intentions from what the opponents say, I have no idea what they might prefer.

Having said so,I doubt Iran will have a nuclear bomb within ten years. The extraordinarily intrusive inspections that I understand are being contemplated would make that exceptionally difficult, at least according to the knowledgeable people I read.

But more fundamentally, Netanyahu has been claiming for the last 20 years that Iran was just a year away from a bomb. Even though he's been consistently wrong, maybe in a way he's been right. After all, Iran has had the know-how to build a bomb for a long time, but it keeps not having one. Yes, we and Israel have done a very great deal to disrupt Iran's nuclear program, but maybe we shouldn't be so sure we know Iran's intentions. Maybe Iran isn't so sure it knows its own intentions.

In the run up to the Iraq War, everybody knew that Saddam had WMDs and was hard at work on a nuclear bomb. All of that was wrong. Saddam had neither any WMDs nor an active nuclear program. He allowed us to think he did because (1) he also wanted Iran to think he did; and (2) until it was too late, he didn't think we'd invade. Oops.