The Look Busy Senate and Iran (Updated 4/20/15)

lookbusyAlso see addendum at the bottom of the post.

The fix was in on Iran long before the Corker bill raised its ugly head. Here’s why:

The Treaty Clause of the U.S. Constitution (Article II, Section 2, Clause 2) reads as follows:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…

One might conclude that any “deal” with Iran would meet the general definition of a treaty:

A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms.

And, therefore, one might suppose that the Obama Administration would be required, if the “deal” were to become law, to solicit the approval of 2/3 of the Senate, per the Constitution.

But not so fast.

From Treaties and Other International Agreements: The Role of the United States Senate, as prepared by the Congressional Research Service (2001) (emphasis added):

Treaties are a serious legal undertaking both in international and domestic law. Internationally, once in force, treaties are binding on the parties and become part of international law. Domestically, treaties to which the United States is a party are equivalent in status to Federal legislation, forming part of what the Constitution calls “the supreme Law of the Land.'”

However, the word treaty does not have the same meaning in the United States and in international law. Under international law, a “treaty” is any legally binding agreement between nations. In the United States, the word treaty is reserved for an agreement that is made “by and with the Advice and Consent of the Senate” (Article II, Section 2, Clause 2 of the Constitution). International agreements not submitted to the Senate are known as “executive agreements” in the United States, but they are considered treaties and therefore binding under international law.

For various reasons, Presidents have increasingly concluded executive agreements. Many agreements are previously authorized or specifically approved by legislation, and such “congressional-executive” or statutory agreements have been treated almost interchangeably with treaties in several important court cases. Others, often referred to as “sole executive agreements,” are made pursuant to inherent powers claimed by the President under Article II of the Constitution. Neither the Senate nor the Congress as a whole is involved in concluding sole executive agreements, and their status in domestic law is not fully resolved.

Questions on the use of treaties, congressional-executive agreements, and sole executive agreements underlie many issues. Therefore, any study of the Senate role in treaties must also deal with executive agreements.

In other words, not all treaties are treaties, as far as whether the Treaties Clause of the U.S. Constitution is invoked vis. the need for 2/3 of the Senate to approve.

A further distinction embodied in U.S. law is between self-executing treaties, which do not require additional legislative action, and non-self-executing treaties which do require the enactment of new laws. These various distinctions of procedure and terminology do not affect the binding status of accords under international law. Nevertheless, they do have major implications under U.S. domestic law. In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the U.S. Constitution is a power separate from the other enumerated powers of the federal government, and hence the federal government can use treaties to legislate in areas which would otherwise fall within the exclusive authority of the states. By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President. Likewise, a sole-executive agreement can only cover matters within the President’s authority or matters in which Congress has delegated authority to the President.

And speaking of delegation (and this is the critical point here), previous legislation regarding Iran sanctions delegated to the President the authority to waive those sanctions:

But under current U.S. sanctions law, the president can waive them. And that is just what Obama intends to do. He will get the U.N. to water down international sanctions while he suspends U.S. sanctions.

And, since Congress delegated to the President the ability to unilaterally waive sanctions, which negates the necessity for changes to existing legislation, and which also negates the necessity for the Senate’s participation in the process (the President can simply declare the Iran deal an executive agreement and not be bothered with drumming up a 2/3 vote in the Senate), the Senate effectively delegated itself into irrelevance vis. the Iran deal. The President, so far as I can tell, can simply call it an executive agreement and do an end-run around the entire treaty process.

So that’s where the Corker bill comes in–as a Look Busy, feckless face-saving that means absolutely nothing.

The fix was in when the President was delegated, by the Senate, the power to waive sanctions. Anything after that is just sick kubuki.

———

I’m not a lawyer, nor do I play one on TV, and welcome informed differences of opinion as to the facts as I understand them and have outlined them above.

———

Addendum, 4/20/15:

One very important point that I missed in my amateur punditry above, courtesy of this piece by Andrew C. McCarthy:

I have argued that the president’s waivers of Iran sanctions are different in kind from, to take some prominent examples, his waivers of Obamacare provisions and of certain enforcement aspects of the federal immigration and narcotics laws. The latter are lawless (though the administration attempts to rationalize them by an untenable interpretation of the prosecutorial discretion doctrine). The former are entirely lawful and written into the sanctions bills themselves.
The problem for Obama is that his sanctions waivers cannot be permanent – the pertinent statutes do not allow for that. (I use the word permanent advisedly. The word binding, which I might otherwise use, has a legal connotation that, as we shall see, can be confusing here.) That is, there are statutory sanctions that would apply to the Iranian government and (mainly) entities that do business for or with it if the president had not waived those sanctions; the statutes that prescribe the sanctions enable the president to waive them for fixed terms; they do not enable the president to provide permanent sanctions relief.

 

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