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Andrew McCarthy’s Distortion of the Corker Bill (and the Constitution)

Jack Goldsmith
Saturday, April 18, 2015, 5:40 PM
Andrew McCarthy, like the New York Times, doesn’t like Senator Corker’s Iran Review bill.  But in contrast to the NYT’s argument that the bill “inappropriately diminishe[s] the president’s power” (a view I criticized

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Andrew McCarthy, like the New York Times, doesn’t like Senator Corker’s Iran Review bill.  But in contrast to the NYT’s argument that the bill “inappropriately diminishe[s] the president’s power” (a view I criticized here), McCarthy today argues that the bill inappropriately enhances the president’s power.  This represents a pretty large reversal of constitutional positions for McCarthy (as I explain below).  But in any event, his arguments – about the Corker bill, and the Constitution – are flawed. Here is how the Corker Bill works.  Congress has an array of statutory sanctions in place against Iran.  These sanctions give the President the discretion to lift sanctions in various circumstances.  President Obama is working toward a legally non-binding deal (i.e. not binding under international law) in which he would exercise this discretion to lift sanctions in return for nuclear reform in Iran.  Congress isn’t sure it agrees with how the President plans to exercise the waiver discretion it gave him.  Enter the Corker Bill. It prohibits the President from exercising his waiver authority for a period (30-82 days, depending on the timing of the delivery of the agreement) while Congress reviews the deal.  If during the review period Congress approves the Iran deal or does nothing, then the President can proceed with his pre-existing statutory authority to waive sanctions.  If Congress enacts “a joint resolution stating in substance that the Congress does not favor the agreement,” then the President cannot waive sanctions against Iran.  Such a joint resolution of disapproval would almost certainly need to override President Obama’s veto.  But that is true independent of the Corker Bill.  As things stand today, the only way for Congress to prevent the President from waiving statutory sanctions against Iran is to pass a law over his veto that withdraws the waiver authority it gave him in the past.  All the Corker Bill does is to freeze the President’s waiver authority for 30-42 days so that Congress can determine if it wants to (and has the votes to) remove the President’s waiver authority. Turning to McCarthy’s arguments, he states:
The Constitution] does not empower the president to make binding agreements with foreign countries all on his own. … [T]he Constitution mandates that no international agreement can be binding unless it achieves either of two forms of congressional endorsement: a) super-majority approval by two-thirds of the Senate (i.e., 67 aye votes), or b) enactment through the normal legislative process, meaning passage by both chambers under their burdensome rules, then signature by the president.
Not so.  The Constitution permits some binding agreements as pure executive agreements.  The famous ones that the Supreme Court has upheld are the Litvinov agreement (upheld in Pink and Belmont) and the Algiers Accord (indirectly upheld in Dames & Moore).  There are scores of other legally binding pure executive agreements going back to the Founding.  McCarthy might claim that, despite long practice and Supreme Court imprimatur, pure executive agreements are not part of the “real” Constitution.  But a similar argument would apply to congressional-executive agreements that he seems to think are legitimate.  More significantly, the agreement the President is negotiating with Iran is by design not legally binding under international law and thus does not even implicate the domestic constitutional framework for approving binding international agreements. Beginning from the mistaken assumption that the Constitution puts up a “roadblock” to legally binding international agreements unless they are approved by the first branch, McCarthy says that “the Corker bill is a ploy to circumvent this constitutional roadblock.”  His main argument:
Once the deal is submitted, Congress would have 60 days (or perhaps as few as 30 days) to act. If within that period both houses of Congress failed to enact a resolution of disapproval, the agreement would be deemed legally binding — meaning that the sanctions the Iranian regime is chafing under would be lifted.
Several problems here.  One is that under the Corker Bill, a congressional failure to act during the review period would not make the Obama deal with Iran “legally binding” in any sense.  As just noted, the actual deal with Iran is a non-binding agreement that under long historical precedent Congress need not approve.  Another problem is that while a congressional failure to enact a resolution of disapproval would result in the President lifting the Iran sanctions, the President’s authority to lift sanctions would not be a result of the Corker Bill.  Rather, the President’s authority to lift sanctions would be based on prior sanctions legislation that was widely supported by Republicans.  McCarthy is enraged because under the Corker Bill, it takes a veto-proof super-majority in Congress to stop President Obama from lifting sanctions.  But that requirement does not originate in the Corker Bill.  That requirement originates in the underlying sanctions regime that predated the Corker Bill.  If there were no Corker Bill, Congress would still need a veto-proof majority to stop the President from lifting sanctions as part of the Iran deal. I can summarize my points by responding to McCarthy’s summary of his points.  McCarthy says:
To summarize, the Constitution puts the onus on the president to find 67 Senate votes to approve an international agreement, making it virtually impossible to ratify an ill-advised deal. The Corker bill puts the onus on Congress to muster 67 votes to block an agreement. Under the Constitution, Obama’s Iran deal would not have a prayer. Under the Corker bill, it would sail through. And once again, it would be Republicans first ensuring that self-destruction is imposed on us, then striking the pose of dogged opponents by casting futile nay votes. This is not how our system works. Congress is supposed to make the laws we live under. It is the first branch of government, not a rubber-stamping Supreme Soviet.
A summary of my response: No, the Constitution does not require the President to find 67 votes to approve an international agreement.  That is true only of treaties under domestic law, which this deal is not.  The deal with Iran does not require any approval by Congress or the Senate. No, the Corker bill does not put the onus on Congress to muster 67 votes to block the Iran agreement.  The onus for a super-majority to stop the President from lifting the sanctions as part of the Iran deal results from the sanctions legislation Congress put in place prior to the Corker bill.  If the Corker bill is not enacted, Congress would still need a veto-overriding super-majority to stop the President from waiving sanctions. Yes, “Congress is supposed to make the laws we live under.”  The scheme that McCarthy does not like is a result of sanctions laws that Congress (with significant republican support) enacted over many years and that we are now living under.  It is not a result of the Corker Bill. A final note: Both McCarthy and President Obama have traveled a long distance on the President’s power related to Iran sanctions.  In 2007, Senator Barack Obama proposed legislation on Iran sanctions that, among other things, would have removed (in McCarthy’s words) “the power of the president to waive penalties against countries that run afoul of our ‘prohibition’ against trade with Iran.”  Obama justified his proposed sanctions law on the need to “ratchet up the pressure on the Iranian regime.”  McCarthy opposed the Bill because he thought that withdrawal of presidential discretion to remove sanctions, and indeed any congressional restrictions on presidential discretion over sanctions, were unconstitutional.  McCarthy argued:
Under the Constitution the president's control of foreign policy is plenary. …  In the famous Curtiss-Wright case of 1936, the Supreme Court acknowledges the "delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of foreign relations." Congress can't tell the President to penalize or not penalize a country that trades with Iran.  Let's say Sarkozy says to Bush, "Gee, we'd love to help you on Darfur, but too bad about those Iran penalties, n'est-ce pas?" It's the president's job ... to decide how we should deal with other countries -- to decide whether it's more important to get an ally's cooperation on Darfur or Afghanistan or whatever than to collect a few bucks from one of its corporations that does business with the mullahs. The reason the Framers designed things that way is because, under the Articles of Confederation, they bore witness to the disaster that is foreign policy by committee.
McCarthy has been admirably consistent in his long-time opposition to any accommodation with Iran, and for what it is worth I lean in that direction.  Eight years ago this support led him to make a robust argument for plenary presidential control over sanctions (including sanctions relief) and to chastise Congress for purporting to do anything that impacted this presidential power in this context.  Today he argues the opposite: That Barack Obama’s attempt to exercise his delegated authority to waive sanctions is unconstitutional unless and until Congress approves.  I don’t think either constitutional argument is right, but in any event McCarthy cannot have it both ways.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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