Foreign Relations & International Law

The Trump Administration Reaps What the Obama Administration Sowed in the Iran Deal

Jack Goldsmith
Wednesday, May 9, 2018, 9:29 AM

The Obama administration made the Iran deal in a way it knew was easy for its successor to break.

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The particular manner in which President Obama crafted the Iran deal paved the way for President Trump to withdraw from it.  Obama made the deal on his own presidential authority, in the face of significant domestic opposition, without seeking or receiving approval from the Senate or the Congress.  He was able to do this, and to skirt constitutional requirements for senatorial or congressional consent, because he made the deal as a political commitment rather than a binding legal obligation. As Curt Bradley and I recently explained, a political commitment “imposes no obligation under international law,” a nation “incurs no state responsibility for its violation,” and thus “a successor President is not bound by a previous President’s political commitment under either domestic or international law and can thus legally disregard it at will.”

Presidents have the clear authority to make non-binding political commitments.  That is why I defended the legality of the Iran deal (as opposed to its wisdom) at the time.  But whenever a president makes an agreement as a political commitment rather than as a binding agreement under international law, he is making a tradeoff.  On the one hand, the president can avoid the need for approval from the Senate or Congress and make the international deal despite domestic opposition.  On the other hand, a political commitment has no binding force under international or domestic law—and there is thus a danger that it will not be honored by a subsequent president.  As I wrote three years ago, Obama’s approach to the Iran deal made it “easier to make (because the President can clearly do it on his own) and easier to break (because there is no domestic or international legal obstacle to breaking it).”

The Obama team was aware of this tradeoff,  but it knew it had no chance to secure approval for the Iran Deal from Congress. Because the Iran Nuclear Agreement Review Act forced a vote, we know that majorities in the Senate and the House opposed the deal. The House of Representatives voted 247-186 against allowing the president to lift U.S. sanctions contemplated by the deal.  And 58 Senators (two short of necessary) voted to break a filibuster that would have allowed a vote on a resolution to disapprove the deal. 

For Obama to join the agreement that he thought so crucial to the fate of the world, he needed a constitutional mechanism that avoided the need for approval by Congress.  The only available option was to make the agreement a fragile political commitment not binding on his successor.  Easier to make, easier to break.

In the wake of Trump’s announcement yesterday, former Obama administration officials are complaining about the harm done to U.S. reputation for compliance with international agreements.  “When the United States unilaterally abrogates an international agreement in the absence of any breach, we undermine international perceptions of our reliability and responsibility,” Obama’s National Security Advisor Susan Rice tells us. “Trump’s action … severely undermines the credibility of the United States to uphold international agreements that we sign which will endure after he is gone,” echoes Obama foreign policy advisor Ben Rhodes.  

Sorry, but you don’t get to make an enormously consequential international deal in the face of opposition from Congress, and skirt the need for congressional consent by making the agreement non-binding under domestic and international law, and then complain about a withdrawal from the fragile non-binding agreement you made when a new president who ran on the issue and won does what a majority of Congress wanted at the time.

In Federalist 75, Alexander Hamilton explained the wisdom of the original constitutional mechanism of Senate approval for treaties in terms directly applicable to the Iran deal. It would be “utterly unsafe and improper to intrust” the “entire power of making treaties” in the president alone, since the president alone could not be trusted to serve the national interest.  “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States,” Hamilton added.  Rather, “the vast importance of the trust … plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.”

One of the most important purposes of legislative consent for international agreements is to ensure that the agreement actually serves the national interest clearly enough to garner such consent. Agreements that have the approval of the Senate or Congress tend to be longer-lasting and more durable.  One reason is that they, unlike the Iran deal, are binding under international law.  A more important reason is that a later president is much less likely to back away from an agreement made by a prior president with the support of the nation secured by its consent through elective representatives.

The Obama administration did not secure this consent.  It made the agreement unilaterally, and thereby pledged the reputation of the nation, even though it knew the Iran deal was non-binding and lacked approval among the nation’s elected representatives. If the United States’ reputation for upholding agreements takes a hit, the responsibility for that outcome lies squarely with the original decision by the Obama administration to make the hugely consequential deal on its own.

The Obama administration took a bet that either Hillary Clinton would win the election or that the unwinding of sanctions for three years would make any reimposition of sanctions too painful politically. And it lost the bet.  

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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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