By now, Sen. Jeff Flake’s (R – Ariz.) announcement that he will oppose the Joint Comprehensive Plan of Action (JCPOA) has been overshadowed by Sen. Robert Menendez’ (D – N.J.) Tuesday announcement of his opposition.

Still, I’d like to revisit Flake’s announcement because he was viewed by the administration, in the words of one report, as a “gettable” Republican. With Flake’s announcement it now appears that President Barack Obama will not be able to claim bipartisan support for the JCPOA.

I don’t know how “gettable,” Flake was. To be sure, at the July 23 Senate Foreign Relations hearing Flake was much less adversarial than most other Republicans on the committee, and that played a role in maintaining the impression that he perhaps looked favorably upon the deal. He also was less adversarial than Menendez.

However, he asked Kerry some very solid questions and Kerry’s responses were awful. How awful? Early in his question and answer session Flake asked Kerry about language in the JCPOA that allowed Iran to opt out if sanctions were re-imposed.

Here is Kerry’s response (or, you can listen to it in the video embedded below. The relevant section begins at about 4:01 into the session.)

“What we have committed to do is quite specific. Iran was fearful that having witnessed the hot desire within the Congress for more sanctions that even if we cut an agreement you folks might just turn around the day after and say ‘too bad, we’re coming back with all the same sanctions.’ … So what they really wanted was a clarity that we’re not going to re-impose the specific nuclear-related sanction provisions as specified in Annex II to the JCPOA contingent on them abiding by the commitments of the agreement. So it’s  really simply a clarification to them that we’re not going to come back and just slap them on again, but that absolutely does not mean that we are precluded from sanctioning Iranian actors, sectors, or any actions if circumstances warrant. So all of our other sanctions authorities remain in place, not affected by this agreement. And Iran only says that they would treat the imposition of any new nuclear-related sanctions as the ground to cease performing. But they are clear and we are clear that we have all other kinds of authorities.”

There’s more to the response, and there are many problems with it, including Kerry’s assertion that it is only the re-imposition of nuclear related sanctions that would allow Iran to opt out. (This is inaccurate. In paragraph 37 of the main body of the JCPOA, in a section labeled “Dispute Resolution,” it says: “Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.” There is nothing in this section that mentions that this applies to nuclear-related sanctions.)

I don’t know how I missed it at the time, but Kerry is saying that the United States saw it necessary to convince a nation that has been defying the United Nations Security Council for more than a decade and its smug, lying scoundrel of a foreign minister, Mohammad Javad Zarif, that the United States would protect Iran from acts of bad faith by Congress! Really? (Earlier this year, Zarif told an audience of American “progressives” that Iran does not imprison journalists or dissidents for their beliefs even as a man he called a “friend,” Jason Rezaian, was – and is – standing trial for espionage for reporting from Iran!)

The American response to Iran’s “fears” should have been, “Don’t cheat on the nuclear deal, engage in terrorism or abuse human rights and they won’t re-impose sanctions on you.” But the administration’s message to Iran was, “we’ll protect you from Congress’ schemes.”

I don’t know how I missed this. Here was the Secretary of State making cause with self-proclaimed enemies of his nation against a branch of his own government. His contempt for Congress in those words was clear. (If you watch the video, hear his inflections and observe his body language it is even clearer.)

It isn’t just in those words; it’s also the way the administration is seeking to bypass the Congressinal role in approving treaties through the combination of an executive agreement and a UN Security Council resolution.

As Walter Russell Mead observed:

Congress grudgingly went along with that, passing the Corker-Menendez law as a way of regularizing the President’s irregular choice. This tilted the playing field toward the President, as opponents would need a two thirds majority in both houses (instead of only a one third majority in the Senate) to block the deal for good.

That the President is blowing off this concession by Congress is a serious matter—more serious perhaps than the White House realizes. He is really requiring Congress to accept a permanent and significant diminution in its power for the sake of an Iran deal that few members view with enthusiasm. The precedent he is setting changes the Constitution, essentially abrogating the treaty power of Congress any time a President[ can get a Security Council resolution to incorporate the terms of an executive agreement.


Kerry’s word’s and the administration’s actions betray a deep contempt for Congress. I don’t know how any lawmaker, after seeing all this, could vote to approve the deal—at least if he or she attached any value to their office.

I don’t mean to gloss over JCPOA’s many failings that have been enumerated here and elsewhere, but the process by which the administration came to this agreement (which, by the way, hasn’t even been signed at this point) shows deep contempt for Congress. Even if the JCPOA were perfect, the unconstitutional behavior of the administration should be grounds for rejecting the deal.

[Photo: Sen. Jeff Flake / YouTube ]


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