Executive Branch Foreign Relations & International Law

Can Biden Sidestep Congress on an Iran Nuclear Deal?

Jack Goldsmith
Wednesday, June 21, 2023, 2:50 PM
The Biden administration has a plausible but not clinching argument for avoiding the Iran Nuclear Agreement Review Act if the agreement is unwritten.
U.S. Secretary of State John Kerry and Iranian Foreign Minister Javad Zarif discuss the implementation of the JCPOA, May 17, 2016. (United States Department of State, https://tinyurl.com/496cfcp3).

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The Biden administration might soon reach an agreement of sorts with Iran that would seek, among other things, to curb Iran’s nuclear weapons program. A major complication is that the 2015 Iran Nuclear Agreement Review Act (INARA) requires the president to “transmit” an “agreement” relating to the nuclear program of Iran to Congress, and then establishes a review period during which (a) the president may not exercise his sanctions-waiving authority, and (b) Congress can vote on the agreement. News reports suggest that the Biden team is laying the groundwork to argue that an informal deal with Iran does not constitute an “agreement” and thus does not trigger any reporting duty under the INARA. 

This post assesses this argument and concludes that the Biden administration’s only plausible (but far from airtight) argument for avoiding its INARA duties is to make the agreement unwritten (i.e. purely verbal).

The Original Iran Deal and the INARA

President Obama signed the INARA in 2015 to assuage Congress over the Joint Comprehensive Plan of Action (JCPOA), the elaborate agreement that aimed to slow Iran’s nuclear weapons program. The Obama administration claimed that the Constitution did not require the president to submit the JCPOA for approval by the Senate or Congress because it was a nonbinding agreement (i.e. not governed by international law) entirely within the president’s constitutional authority to make and complete.  

The INARA came about because Obama planned to implement the JCPOA by exercising various powers, conferred by Congress, to waive U.S. sanctions against Iran on a one-year basis.  The INARA requires the president to “transmit to the appropriate congressional committees and leadership” an “agreement with Iran,” as defined, along with related certifications and reports. It then bars the President from exercising waiver authority for thirty days—a period the original law extended to sixty days for the JCPOA—during which Congress could review the agreement and have an opportunity to disapprove the agreement or narrow or eliminate the president’s sanctions-waiving authority, if it could enact a joint resolution that overcame a presidential veto.  

The INARA, in other words, did not require submission of the JCPOA for congressional approval. Rather, it required submission of the JCPOA for congressional consideration and potential non-approval if Congress could muster supermajorities in each house. Congress was unable to muster the votes needed to kill or limit the JCPOA, however, and after sixty days Obama exercised his waiver authority and implemented the agreement.

The JCPOA operated for three years until President Trump announced in May 2018 that he was withdrawing from the agreement and reimposing domestic sanctions against Iran.  

Biden Initiatives With Iran

The Biden administration last summer seemed on the verge of reaching a new agreement with Iran to slow its nuclear program in exchange for sanctions relief from the United States. The deal faltered last Fall and Biden said it was “dead” last November. But negotiations with Iran continued and it now seems, according to many news reports, that an informal deal with Iran may be imminent. The deal appears to involve some combination of (1) the United States giving Iran sanctions relief under domestic law and in international institutions, and (2) Iran freeing American prisoners, agreeing not to enrich uranium beyond current purity levels, and agreeing to tamp down on proxy attacks on U.S.contractors in Iraq and Syria.

It is the sanctions-relief-for-nuclear-slowdown element of this agreement that potentially implicates the INARA. Yet the Biden administration appears to be signaling that any such deal would not be an “agreement” within the terms of the INARA. It has been reported that any agreement with Iran related to its nuclear program would be (as the New York Times says) “an informal, unwritten agreement” or (as Reuters and Axios report) an “understanding.” Some of these reports suggest that the Biden team is characterizing the agreement in these ways to circumvent its obligations under the INARA.

Last week State Department Spokesperson Matthew Miller, when asked about the “nuclear deal” with Iran, stated:

[R]umors about a nuclear deal, interim or otherwise, are false and misleading. . . . We believe – our number one policy is ensuring that Iran never obtains a nuclear weapon, so of course we’ve been watching Iran’s enrichment activities. We believe diplomacy is the best path to help achieve that, but we’re preparing for all possible options and contingencies.

When pressed on whether a nuclear deal was “on the agenda,” he further obfuscated:

I will say we have at all times believed that diplomacy is the best path forward. At the same time, we are not naive about Iran’s ambitions and Iran’s activities, but we have always believed at every step of the way that diplomacy is the best path forward for preventing Iran from obtaining a nuclear weapon. But for the United States, all options are on the table.

Secretary of State Antony Blinken also stated last week that “some of the reports that we’ve seen about an agreement about nuclear matters and detainees are simply not accurate or not true.”

These careful denials about “rumors” or “some … reports” about a nuclear “deal” or “agreement” leave open the possibility of a less formal diplomatic understanding, perhaps unwritten, related to Iran’s nuclear program. As one Iranian official reportedly said, “Call it whatever you want, whether a temporary deal, an interim deal or a mutual understanding–both sides want to prevent further escalation.”

Why might the Biden administration want to avoid sending the new “agreement” to Congress under the INARA? After all, it seems unlikely that Congress could muster the supermajorities needed to overcome a presidential veto and defeat the implementation of the deal. But transmitting the agreement under the INARA would raise the political costs of the agreement, since the law triggers collateral duties and the administration would need to engage extensively with the Hill on the issue during the period the agreement was before it.  The administration might also want to spare some Democrats a perhaps-awkward vote, and to avoid the possible spectacle of having to implement the deal via a presidential veto in the face of majority opposition in Congress. Basically, the deal is much easier for the president to get done, politically and otherwise, if Congress is not involved. (Whether this is a good constitutional arrangement is another question.) 

Legal Issues

As noted, the INARA requires the President to “transmit to the appropriate congressional committees and leadership” an “agreement with Iran,” as defined.  The law is still in force and is in the present tense, so the INARA obligation persists even though the INARA was written with the JCPOA present in mind. 

The INARA defines the term “agreement” as follows: 

The term “agreement” means an agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action, regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.

Note how broad this definition is. To be covered, the agreement need do only two things: (i) “relate[] to the nuclear program of Iran” and (ii) “include[] the United States” or “commit[] the United States to take action” or be an agreement “pursuant to which the United States commits or otherwise agrees to take action.” And the definition emphasizes that the form the agreement takes does not matter. If the definitional criteria are satisfied, the agreement is covered by the INARA, “regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not.” The INARA’s insistence that the form of the agreement does not matter takes place against the background of the State Department itself having emphasized that nonbinding instruments might assume various forms or titles, including “non-binding agreements, gentlemen's agreements, joint statements or declarations.” 

House Foreign Affairs Committee chairman Michael T. McCaul sent Biden a letter last week that parsed the INARA definition above and concluded that it “requires that any agreement, arrangement, or understanding with Iran needs to be submitted to Congress pursuant to INARA.”  McCaul presumably added “arrangement” and “understanding”—alternative phrasings for informal nonbinding agreements—to underscore that INARA applies if the definition is satisfied regardless of the form of the agreement

But the definition is even broader than McCaul lets on because it does not (as he suggests) require an agreement with Iran for the definition to apply. Rather, under the statutory definition, the agreement need only concern Iran’s nuclear program and involve the United States or commit the United States to action or lead it to take action. I do not know the reason for this phrasing. But one very important consequence of it is to include any agreement that meets the statutory criteria even if the agreement is done through a third party. The United States has been negotiating with Iran indirectly through Oman. One can imagine an arrangement with Iran through the auspices of Oman akin to the famous 1981 Algiers Accord that ended the hostage crisis between the United States and Iran, which involved independent commitments by Iran and the United States, coordinated and announced by Algiers. Such an agreement would still be covered by the INARA as long as it concerns Iran’s nuclear program and involves the United States or commits the United States to action or leads it to take action.   

The Biden administration nonetheless has a plausible argument for avoiding the INARA if the “agreement” is unwritten. The  “regardless of the form [the agreement] takes” language, considered alone, seems to include non-written agreements. But other statutory language might imply that the INARA duty is limited to written agreements. The president under the INARA must “transmit . . . the agreement . . . including all related materials and annexes” to certain congressional committees.  It is conceivable that a non-written agreement has annexes (written or non-written), but the natural reading of “annex” is something appended to a document.  Also, the INARA requires that the president certify that “the agreement includes the appropriate terms, conditions, and duration of the agreement’s requirements with respect to Iran’s nuclear activities.” Agreements of this complexity might be hard to accomplish through a non-written agreement, which might suggest that Congress had written agreements in mind. 

If the Biden administration makes a non-written agreement to avoid the INARA, a tricky question will arise about what constitutes the non-written agreement. Surely the elements of the (almost certainly complex) agreement would be written down, in some form, during negotiations, even if there is no final text to which the parties formally assent or which a third party promulgates. Can the Biden administration in effect write down the terms of an agreement with Iran but then proclaim and agree to the terms verbally, without assenting to a “text,” all in order to avoid its domestic law duties to Congress?  This would be an extreme elevation of form over substance that would not obviously be true to the statute.  Congress should press this issue hard if the Biden team goes the non-written agreement route to skirt the INARA.

Constitutional Issues

One can imagine the Biden administration deploying a constitutional avoidance argument to bolster a claim about the INARA’s inapplicability to non-written agreements.  But such an argument would be weak.

The Offices of Legal Counsel (OLCs) of Democratic and Republican administrations have long asserted a broad exclusive presidential power under Article II over diplomacy. The executive branch has invoked this power in various ways to excuse executive branch compliance with federal statutes that prohibit the expenditure of funds from the Palestine Liberation Organization (PLO) in the United States to further the PLO’s interests; that bar the PLO from maintaining a Washington, D.C. office and undertaking diplomatic activities the Secretary of State aims to authorize; that prohibit State Department officials from attending certain international conferences; and that bar certain diplomacy-related activities of the Office of Science and Technology Policy (“OSTP”) involving Chinese officials.  (For more examples, and a critique of these opinions, see here.)

Perhaps the most on-point (but not terribly on point) OLC opinion relying on the logic of an exclusive presidential power over diplomacy is a 2020 opinion that advised that the president could disregard a notice and waiting period requirement on the president withdrawing from the Open Skies Treaty.  The opinion turned in part on the president’s exclusive power “to execute a treaty of the United States” but also in part on the president’s exclusive power “to conduct the Nation’s diplomacy,” torqued up by Zivotofsky II. OLC basically reasoned that a congressionally-mandated waiting period on treaty withdrawal unduly burdened these powers considered together.

These are broad assertions of executive power, but it would be a stretch to extend them to the new Iran deal. Congress in the INARA does not purport to stop the president from making the deal. The duty to transmit the agreements attaches within five days “after” the executive branch “reach[es] an agreement with Iran relating to the nuclear program of Iran.” Congress is, rather, regulating the president’s power to implement the agreement under domestic law waiver authorities that the president possesses only because Congress conferred them.  Congress has a very strong claim to regulate that end of the deal—domestic implementation—regardless of what informal diplomatic arrangements the president makes on the international plane pursuant to Article II. And the president’s exclusive Article II claim to implement the agreement without congressional interference is weak to the extent that his implementation tool–waiver authority–derives entirely from Congress.  

* * *

We should pause to note how remarkable it would be if the Biden administration made a deal of this significance a non-written one just to avoid the consequences of (weak) congressional review. President Obama made the JCPOA as a nonbinding agreement in order to avoid the constitutional need to secure affirmative congressional approval, but in doing so he had to bow to the INARA process. And now the Biden administration may reach a new non-binding, non-written agreement with Iran that would (because nonbinding) require no affirmative congressional approval and also would (because unwritten) avoid the statutory requirement to transmit the deal under the INARA for congressional scrutiny.  

If this comes to pass, it would be consistent with a larger trend: Despite important recent Case Act reforms, which enhance the ex post transparency of international agreements, presidents are becoming more and more creative at cutting Congress out of the process of making and implementing international agreements. 

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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