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Are Senate Republicans really the bad guys in Iran Deal fiasco?

Are Senate Republicans really the bad guys in Iran Deal fiasco?

When is a treaty not a treaty?

Obama’s Iran deal has generated enormous anger, and some of that ire has been directed at the Republicans in Congress.

One of the main accusations against them is that they have made Obama’s task easier by passing Corker-Menendez, a bill that allows them to stop the president from lifting the Iranian sanctions unilaterally, but only with a super-majority because Obama could (and indeed would) veto the bill. Then Congress would end up needing a 2/3 majority of both houses to stop him.

Why do it that way, critics ask, instead of the simple route of exercising the Senate’s treaty power (under Article II Section 2 Clause 2 of the Constitution) to advise and consent? That would require a two-thirds vote before the treaty is approved rather than requiring a two-thirds vote to stop it.

But what a great many critics fail to appreciate is how watered-down the Senate’s treaty power has already become ever since FDR, and how much the de facto power of the executive to make international agreements without Congress’ say-so has expanded.

It’s well worth your time to listen to an interview on the subject with Elizabeth Chryst, who is a former elected officer of the U.S. Senate and an expert on how Congress works in terms of rules and procedures. In this recording, she speaks on the subject of the Corker-Menendez bill and why conservatives are dreaming if they think there was ever any chance of blocking the Iran deal as a treaty.

That’s not a reality that Chryst likes, and she knows that her fellow conservatives are very unhappy to hear it; but she thinks it’s a reality they need to face.

Chryst’s basic point is that beginning with FDR the practice of concluding a treaty-like international “deal” and bypassing Congress by regarding it as an executive action rather than a treaty has become fairly commonplace and has been regularly approved by the Court. In fact, as political science professors Glen F. Krutz and Jeffrey S. Peake point out:

Since the 1940s, the vast majority of international agreements have been completed by presidents as executive agreements rather than as treaties. This major policy evolution occurred without changes to the Constitution, though Supreme Court decisions and practice by the political branches have validated the change. This has led some scholars to conclude that the treaty power “has become effectively a Presidential monopoly” (Franck and Weisband 1979: 135; see also Corwin 1984).

With the Iran deal, Obama appears to be taking that monopoly one step further. I am no expert on the historical use of the executive agreement instead of the treaty power, but has there ever before been a president so determined to defy the will of the majority of Congress, including not just the opposition party but significant numbers in his own party, in order to conclude a precedent-setting and conciliatory arms agreement with an enemy of 35-years duration?

So it’s no wonder that Congress was not content to allow Obama to call the Iran deal an executive agreement and to leave it at that. Corker-Menendez was an attempt to open up another avenue of opposition to the bill, not to close one down. And Corker-Menendez had the decided advantage of significant bilateral support, enough to discourage Obama from attempting to veto it because he knew the veto would be overriden.

So please take a few minutes to listen to the Chryst interview. The most important part takes place from minute 17:25 to 27:12, and another part begins around minute 37:00 and goes to about 48:30. If you only have time to listen to one of those segments, I’d suggest the first one. But I strongly urge you to hear both of them.

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It is no mystery why so much ire is being directed at Corker-Menendez.

People on the right are extremely frustrated and angry at how many times Obama has succeeded in defying the Republicans even though the GOP became the majority party in Congress this year. I share that frustration and anger. I further hope, if Obama does veto the results of a vote under Corker-Menendez to keep the sanctions, that there will be enough votes to override that veto.

But if not (and it is highly likely that the override will not succeed), then the Senate could still vote to reject the Iran deal under the seemingly long-lost treaty power. As Chryst says in the interview, facts are facts, and such a vote would probably be the equivalent of mere theater because Obama would claim that the deal is an executive action and SCOTUS would almost certainly back him up on that.

However, Corker-Menendez is most likely a bona fide effort by Congress to take at least some of its power back. There are plenty of reasons to be frustrated with the Republicans in Congress. Corker-Menendez doesn’t appear to be one of them.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

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Comments

Why does it always turn out that we have no power to stop anything?

    Subotai Bahadur in reply to betty. | July 20, 2015 at 4:09 pm

    Because the Republican Party has absolutely no desire to stop anything. They refuse to fight, then keep coming back to us for votes every two years promising to fight. Any conservative who tries to fight the Left first has to defeat the Republican leadership, making the Republicans the Democrats’ first line of defense.

    Does anyone here believe that any of the candidates favored by the Republican leadership will really oppose the Democrats on anything?

    Does anyone here believe that any of the few candidates who would fight the Democrats will be allowed to get the nomination [remember, the convention rules changed in 2012]? Or that if they get it somehow, that the Republican party would not take a dive like they have repeatedly rather than allow opposition to the agenda they share with the Democrats?

FrankNatoli | July 20, 2015 at 9:09 am

Short of removing this lawless President from office, Congress cannot compel this lawless President to do anything. The Congress cannot compel this lawless President to submit the Iran agreement to the Senate as a treaty, where it is NOT likely to get a 2/3 approval vote.

However, that does NOT mean that the Congress should continue to play lap dog to this lawless President by accepting the Iran agreement for a vote in both houses, with the already announced pretense that a “no” vote in either house would be “vetoed” by the President and thus need a 2/3 vote of both houses to override. There is no Article, there is no Amendment, there is no Constitutional basis for such a process.

Boehner and McConnell, if they have any guts, if they believe they will answer to the Great Judge for their fidelity, or lack thereof, to their oaths, will tell this lawless President to submit the treaty to the Senate, as the Constitution requires, period. There is no other alternative.

    Ragspierre in reply to FrankNatoli. | July 20, 2015 at 9:36 am

    Let’s start from first principles, because I think you MAY be quite wrong. We’ll see…

    First, the Iran sanctions are a matter of U.S. law, sole province (once fully enacted) of the legislature.

    Second, the President has some prerogatives under the sanctions law (just as in Cuber, he can “declare” certain stuff true, despite it being a black lie). The President can basically wave the sanctions away if he’s willing to lie. Which is his forte, really.

    Third, the Congress never gave up the power to change the law. Congress can always alter the presidential prerogatives or impose entirely new sanctions on Iran.

    Hence, depending on what Congress intends now to do, they have every constitutional power to attack the agreement that they need.

    Seems to me…

      FrankNatoli in reply to Ragspierre. | July 20, 2015 at 10:09 am

      Rags: if it wasn’t clear that I was strictly addressing the new Obama/Kerry Iran “agreement”, then I apologize. Your three points appear to relate to existing law, existing sanctions against Iran. We seem to be talking about two related but different things.

      Perhaps the President has the power, under existing legislation, to alter or end sanctions against Iran.

      Unquestionably the President has demonstrated his total disregard for the Constitution and the law, so whether or not he has the power to alter or end sanctions is moot.

      My point, I repeat, is that this new Obama/Kerry Iran “agreement” must be submitted to the Senate as a treaty, or the Congress must refuse any action on it, because there is no Constitutional basis for it to do otherwise.

      The Constitution gives the President the right to submit a budget to the Congress; recall Tip O’Neil’s statements, eight times, that Ronald Reagan’s budgets were “dead on arrival”.

      The Constitution gives the President to right to submit a treaty to the Senate.

      The Constitution says nothing about submitting “not treaties” to both houses of Congress. This is where Boehner and McConnell must stand their ground.

      Ragspierre in reply to Ragspierre. | July 20, 2015 at 10:44 am

      Maybe we’re talking past each other here, Frank, but I don’t understand Corker-Menendez to approach the whole “deal” with Iran at all.

      It is entirely directed…as it has to be…at sanctions. It can’t touch other aspects of the “executive agreement”.

      And sanctions are entirely under the purview of Congress.

      I don’t think you’ll find that anybody has ever suggested that Corker allows the Congress to “veto” all aspects of a “executive agreement”.

      OldNuc in reply to Ragspierre. | July 20, 2015 at 10:57 am

      The problem is and has been for a long time Congress is only interested in lining their and their donors pockets and the country and taxpayers can go get screwed as far as they are concerned. The “their” used here encompasses every one of them to 1 extent or another.

      Estragon in reply to Ragspierre. | July 20, 2015 at 4:36 pm

      Our sanctions mean very little. We haven’t done any business with Iran since they took our hostages in 1979, so it’s purely symbolic. All we could do is sanction foreign companies that do business with the mullahs and the US, but that is very few (and any which might actually be hurt by it would find a way to split operations).

      The Europeans have borne the brunt of sanctions, Russia and China were tricked into going along. But once the Europeans had the excuse to get rid of them, they are gone. Period.

      – –

      Not to mention, the President has the authority to “unfreeze” the Iranian bank accounts, said to be nearly $100 billion in this country alone. That by itself does more for Iran than ten years of sanction hurt them.

        Milhouse in reply to Estragon. | July 21, 2015 at 11:11 am

        Our sanctions actually mean a lot. Of course American companies don’t do any business with Iran because of the sanctions. If the sanctions are lifted you’ll find many American companies who will rush to take advantage, especially the banks.

        US banking sanctions can effectively freeze any activity anywhere in the world, because almost all financial transactions end up going through a US bank. It’s very difficult to arrange ones affairs so as never to come under the jurisdiction of the Manhattan DA, let alone the Fed.

      Milhouse in reply to Ragspierre. | July 21, 2015 at 11:14 am

      What you’re missing is that Congress can’t pass any new law that the president opposes unless 2/3 of each House agree. So yes, Congress can withdraw the president’s authority to waive the sanctions; if and only if it has the numbers to override his veto.

    Milhouse in reply to FrankNatoli. | July 21, 2015 at 11:17 am

    There is no Article, there is no Amendment, there is no Constitutional basis for such a process.

    Frank, that is an outright lie. It is the standard process that the constitution lays down for any legislation. Congress gave the president the power to waive sanctions; if it wants to withdraw that power it needs to make a new law, and override the president’s veto. If it can’t do that, the old law remains in effect.

    Milhouse in reply to FrankNatoli. | July 21, 2015 at 11:20 am

    will tell this lawless President to submit the treaty to the Senate, as the Constitution requires, period.

    That’s another lie. The constitution does not require any such thing. It is entirely up to the president whether to seek the senate’s consent for a treaty.

“But if not (and it is highly likely that the override will not succeed), then the Senate could still vote to reject the Iran deal under the seemingly long-lost treaty power.”

Here you lost me, neo-neocon. I was following along pretty well to this point, and then it seemed like your wheels fell off the wagon.

But maybe my understanding of the process is at fault. I thought the president has to submit a treaty to the Senate for ratification in order to entrain any action by the Senate.

A vote on an un-submitted NOT treaty would be a great definition of a nullity.

Or did I miss something.

    Milhouse in reply to Ragspierre. | July 21, 2015 at 11:08 am

    You are exactly right. There is no difference at all between a treaty that was submitted and rejected, and one that was never submitted in the first place. So even if the senate could reject an unsubmitted treaty (which it can’t, because it has no notice that any treaty exists to reject), it would have no effect.

If I remember right, the sanctions approved by congress just gave the president the ability to impose them, not the requirement to impose them. So he signs an ‘agreement’ with Iran, and with a wave of his magic pen, the sanctions go away…

…and a few hundred million dollars get shuffled around behind the scenes. That’s a lot of golf balls.

JimMtnViewCaUSA | July 20, 2015 at 10:49 am

The Dems were willing to fight.
Repubs are not.

    Henry Hawkins in reply to JimMtnViewCaUSA. | July 20, 2015 at 2:40 pm

    This is a truism applicable to all current/recent politics – the Dems fight hard and long for bad policies while the GOP idly watches, doing nothing – or it outright caves.

No one yet has been willing to answer the simple question:

How could Congress FORCE the President to submit the deal as a treaty for ratification?

– –

A couple of brave souls gave my last positing of the question “down-twinkles,” but no actual answers.

As Kevin Williamson has noted, what many on our side demand is just emotional vindication.

    Henry Hawkins in reply to Estragon. | July 20, 2015 at 5:44 pm

    Success is not the goal. We’d like to see them merely try. They will not.

    Besides, wha sort of f**ked up GOP majority has to ask commenters on blogs what to do?

Sammy Finkelman | July 20, 2015 at 9:16 pm

Actually, the banking sanctions imposed since 2006 in stages are extremely significant, and may event prevent others from dealing with Iran, because of the prospect of a secondary boycott. That’s why I think the agreement has something in it that says that United states should make effort to ensure that the sanctions relief actually happens.

Article 26 has a sentence in it that reads like this:

The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified in Annex II.

Now what does that mean?

It means the United States, if it wants to, could nullify a lot of the sanctions relief unilaterally – and it could do by just doing nothing!

When is a law a law?
When does a subpoena require a response?
When does ‘..swear to tell the truth…’ mean tell the truth?
When is a document request fulfilled?

Are Senate Republican really the bad guys? Nah, not the good guys, not the bad guys, just…..there, like the furniture.

When you read the constitution its clear the the treaty/agreement ratification process is completely independent of the president. It makes no mention of excluding agreements or requiring the president to submit treatys/agreements to the Senate before a vote on ratification. The Senate could easily schedule a vote on ratification. When they reject the agreement it will be null and void as far as the U.S. Is concerned. The Senate should vote on ratification if only to reassert it’s treaty power.

    Milhouse in reply to ConradCA. | July 21, 2015 at 11:00 am

    Clearly you have not actually read the constitution. It is the president and only the president who has the power to make treaties. Not the senate. The senate’s role is only to advise him while negotiating a treaty, and to consent to a treaty once he has concluded it. If he doesn’t seek the senate’s advice it has no opportunity to give it. And if he doesn’t seek the senate’s consent to a treaty it has nothing to refuse. Until the president says “I have concluded this treaty and would like the senate’s consent” there is nothing to ratify or to fail to ratify.

    You seem to imagine that a vote not to ratify a treaty has some constitutional significance. It doesn’t. All it means is that there is no treaty, exactly as if the president had never sent it to the senate in the first place. In other words exactly as it is now, since the president has said he has no intention of sending it there. It isn’t a treaty, and it isn’t going to be a treaty, because the definition of a treaty is that which the senate has consented to.

    I suspect you also have some inflated idea of a treaty’s legal status. I have come across some very bizarre ideas among otherwise literate people, who imagine that a treaty, once ratified by the senate, overrides the constitution! That is nonsense. A treaty is just another law. It ranks equal with all statutes made by Congress, and like any law, whenever Congress likes it can make another law that contradicts it.

    The only real differences between a treaty and a statute are:
    1. A statute needs a majority the House and 3/5 in the senate, while a treaty needs 2/3 votes in the senate but nothing in the House. The treaty power is a way for the president and 67 senators to bypass the House and make laws without it. Once they’ve done so it’s just another law.
    2. The president can abrogate a treaty unilaterally. He doesn’t need anybody’s consent.

Estragon The president doesn’t have to submit this treaty to the Senate for them to vote on ratification. They could just have a vote on ratification tomorrow. All it takes is the Senate to have the will to fight Tyrant Obama the Liar’s evil.

Can someone please explain to me what exactly Corker/Menendez actually did? It seems to me that it left things exactly as they were before.

What was the situation before Corker/Menendez? The president had the power to waive sanctions, because Congress had said so in the original law enacting them. Congress could at any time change its mind and pass a new law removing this power, but it would have to override his veto.

So in what way did Corker/Menendez change this? How is the new situation any different?

Ragspierre:

By writing “the Senate could still vote to reject the Iran deal under the seemingly long-lost treaty power,” I was attempting to indicate that they had not completely ceded that power. I was not meaning to indicate that they could do it without the president submitting it to them as a treaty—and of course he will NOT submit it to them as a treaty.

I suppose, however, Congress might pass some sort of stature declaring the Iran deal a treaty, and then voting not to approve it. But since SCOTUS would almost certainly not uphold that course of action, it would be a merely symbolic gesture.

Correction to the above comment: I meant to type “statute” rather than “stature.”

Milhouse:

This interview answers some of your questions, I think. It’s from April, though, so some of it might be a bit outdated.

    Milhouse in reply to neo-neocon. | July 21, 2015 at 11:18 pm

    Thanks. Most of what Kaine says is pure twaddle, but this appears to be the only substance in the whole thing: “The bill would suspend for 65 days President Obama’s authority to temporarily lift sanctions”. If that remained in the final version that became law, then I understand what it achieved.

    Also this, if it remained in: “would require the president to certify Iranian compliance on several fronts, including whether Iran has directly supported an act of terrorism against Americans or American interests”, though the only purpose I can see that clause serving is to create a perjury trap that might let the next president prosecute 0bama. (It would also create grounds for impeachment, but there are already many such grounds, and we all know it isn’t going to happen because there are no D senators who will vote to convict.)

    Milhouse in reply to neo-neocon. | July 21, 2015 at 11:26 pm

    Apparently the final version shortened that 65 days to 30.

    The bill gives Congress 30 days to review a final nuclear deal after international negotiators reach such an agreement, and during that time bars Obama from temporarily waiving any U.S. sanctions on Iran that were passed by Congress.

    There’s no mention of the certification requirements. I assume they were dropped.

    Milhouse in reply to neo-neocon. | July 21, 2015 at 11:39 pm

    Further correction: Here is the final text that became law, and it says 30 days unless the deal is transmitted to Congress between 10-Jul and 7-Sep, in which case it’s 60 days. Since that is what happened, 60 days it is. Once Congress passes its disapproval (which I assume it will do), he can’t waive sanctions for 12 days, and after he vetoes it (which I assume he will) there’s another 10 days.

    It does include the requirement that the president report every 180 days on a host of things, including “An assessment of whether any Iranian financial institutions are engaged in money laundering or terrorist finance activities, including names of specific financial institutions if applicable”, and “An assessment of (i) whether Iran directly supported, financed, planned, or carried out an act of terrorism against the United States or a United States person anywhere in the world; [and] (ii) whether, and the extent to which, Iran supported acts of terrorism, including acts of terrorism against the United States or a United States person anywhere in the world;”.

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