Founding director of the Council on International Policy
High-level nuclear talks between Iran and six major states continue this week, amid the looming March 31 deadline, despite Iranian negotiators reportedly raising the “ill-timed and ill-advised” letter sent from Republican senators to Iran during meetings last week between Secretary of State John Kerry and Foreign Minister Javad Zarif.
While it is unclear whether the letter is achieving its purpose of derailing efforts at peacefully resolving the nuclear dispute, what is clear is that the behaviour of congressional Republicans is chiselling away any hope that they could be reasoned with to be part of the solution on Iran and not the problem.
The United States’ inability to implement an Iran deal could come at a high cost as it would be a violation of international law since the deal is likely to be codified into a UN Security Council resolution. It could also damage Washington’s standing in the world, not to mention its relations with its NATO allies in the P5+1, particularly since the bloc is negotiating with Iran in good faith. It could also signal to its competitors, rivals and foes alike (i.e. China, Russia and North Korea) that the U.S. reneges on its commitments due to its dysfunctional political system.
So if there was any doubt, it is now clear that the Obama administration cannot rely on the majority of U.S. lawmakers to resolve the impasse with Iran diplomatically. As disconcerting as that may be, the White House is well-positioned legally and politically to move forward without Congress on reaching what could be a historic deal as part of the so-called P5+1 and Iran.
Legally speaking, the Obama administration’s negotiation with Iran both bilaterally and through the P5+1 is well within the parameters of the president’s constitutional authority to conduct U.S. foreign policy. There is enough precedence to support executive agreements between presidents and foreign powers. As duly noted by other analysts, the majority of international agreements the United States has signed onto in the last 75 years were executive agreements. Indeed, in the realm of nuclear non-proliferation, arms control and disarmament, U.S. administrations have negotiated and implemented understandings and agreements without Senate approval on numerous occasions.
Examples include the 2013 bilateral framework between the United States and Russia which was followed by a UN Security Council resolution addressing Syria’s chemical weapons — neither actions sought for the approval of the Senate. There have also been important precedents set before Obama’s time. In 2004, in response to Libya’s increasing transparency and renunciation of its weapons of mass destruction program, the Bush administration terminated the application of many sanctions with respect to Libya and worked to normalize relations with Tripoli, again without Senate approval. The 1994 Agreed Framework signed between the Clinton administration and North Korea has already been cited as an example of a non-proliferation agreement not having been sent to the Senate for advice or consent. Finally, known as the Presidential Nuclear Initiatives, the George H. W. Bush administration, without Senate approval, made unilateral and reciprocal pledges with the Soviet Union in 1991 to substantially limit and reduce tactical nuclear weapons.
Relatedly, there has been chatter about whether the Obama administration can bypass the Senate via a UN Security Council resolution. To be sure, Secretary of State Kerry has referred to any possible Iran deal as being a non-binding agreement, which legal analysts argue paves the way for a legally binding UN Security Council resolution codifying the terms of a nuclear deal with Iran, mandating members to implement its terms, including by lifting nuclear-related sanctions. In the United States, that would require presidential waivers which the next president would be inclined to continue if Iran complied with the agreement.
As I have previously argued, in addition to codifying the nuclear agreement into a UN Security Council resolution, President Obama could issue a blanket executive order to continuously and automatically waive sanctions on Iran so long as it remains compliant. Such action could provide future U.S. presidents with further legal impetus and authority to continue waiving sanctions. Of course, future presidents can repeal such action and Congress can pass a bill barring presidential waivers and override the presidential veto that could follow with a two-thirds majority from each chamber on Capitol Hill.
There is always a chance Republicans could be successful in their sabotaging efforts. Such a move would be a mistake not only for the U.S. on the whole, but for their own domestic interests down the road.
Having won majorities in both chambers of Congress, and with an eye towards the 2016 presidential election, Republicans are well-positioned to portray themselves as a party capable of governing. This can only happen, however, if the GOP appeals to the broader American populace, which favours making a deal with Iran. By persistently working against the Administration to sabotage nuclear talks through the introduction of new sanctions, or through the invitation of Israeli Prime Minister Benjamin Netanyahu to speak to a joint session of Congress, and by writing an open letter to Iran’s hardliners, congressional Republicans are working steadfastly to prevent a diplomatic solution that could lead to a lasting and peaceful deal. This is anything but demonstrating an ability to govern.
If a deal fails to develop as a result of the actions of Republican lawmakers, they could and should be held accountable in 2016.