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Another Response to Andrew McCarthy on the Corker Bill Iran Review

Jack Goldsmith
Monday, April 20, 2015, 3:25 PM
Andrew McCarthy has a thoughtful response to my critique of his weekend column on the Corker Review bill.  I recommend it.

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Andrew McCarthy has a thoughtful response to my critique of his weekend column on the Corker Review bill.  I recommend it. We seem to have fewer disagreements than I thought. Rather than a lengthy a point-by-point response, let me just say this: Yes, Obama’s aim is to permanently lift U.S. sanctions.  But that does not make the international deal he is pursuing a legally binding agreement, and it does not require Senate approval for the deal.  Such Senate approval is only necessary for (certain) agreements that are binding under international law, and this agreement with Iran is no such agreement.  I believe that McCarthy is confounding the deal’s aim to lift sanctions permanently with the deal’s status under international law.  The content of the deal will be an agreement to permanently lift sanctions if Iran meets compliance goals (that is the permanent part), but in form the deal is the functional equivalent of a handshake (that is the legally non-binding part). More importantly, the Iran deal by itself, no matter what it says, cannot permanently lift U.S. statutory sanctions.  Only Congress can permanently change the sanctions regime.  Even if Obama agrees in the handshake deal to permanently reduce sanctions, he cannot follow through on that pledge by himself.  The most he can do on his own is to waive most of the statutory sanctions during his remaining term. Congress, and only Congress, can permanently lift sanctions.  Even the President understands and accepts this. As his Chief of Staff Denis McDonough recently wrote, “even if a deal is reached, only Congress can terminate the existing statutory sanctions.” Finally, I agree with McCarthy that it is possible that Obama might try to “legalize” the non-binding deal via a UN Security Council Resolution.  I wrote about that possibility at length here.  The administration has strongly (but not definitively) suggested that it won’t do this, and such a course of action would indeed be a slap in Congress’s face.  But the important point is this: Even if the President tried to use the Security Council to impose an international law obligation on the United States to eliminate U.S. sanctions, the U.S. sanctions still could not be lifted without a congressional vote.  Congress has often ignored international law obligations (as the Constitution clearly allows it to do).  Being told by the United Nations to terminate U.S. sanctions would make it much less likely that Congress would actually vote to terminate the sanctions.  That reason, among others, is why I do not expect the Obama administration to try this ploy.

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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