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Who’s Afraid of the Iran Nuclear Agreement Review Act of 2015?

Jack Goldsmith
Wednesday, March 25, 2015, 11:47 AM
Last Friday The Hill reported that Senator Corker believes he “will have a veto-proof majority” to enact the “Iran Nuclear Agreement Review Act of 2015” (INARA).  Below is my analysis of the Bill.

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Last Friday The Hill reported that Senator Corker believes he “will have a veto-proof majority” to enact the “Iran Nuclear Agreement Review Act of 2015” (INARA).  Below is my analysis of the Bill.  Bottom line: The Bill is simply designed to permit Congress to look closely at the Iran deal before President Obama exercises any statutory authority to lift the sanctions that Congress put into place, and to keep Congress informed about Iran’s behavior related to congressional sanctions.  The President won’t like the close scrutiny that this Bill contemplates, and he certainly won’t like it if Congress acts pursuant to the Bill to limit his discretion to lift sanctions.  But I don’t think the Bill makes any unreasonable demand or possesses any constitutional infirmity.  Reading the Bill carefully has caused me to modify somewhat my earlier reactions to White House Chief of Staff Denis McDonough’s letter to Senator Corker. Background.  On November 24, 2013, Iran and the P5+1 (China, France, Germany, Russia, the United Kingdom and the United States) agreed on the Joint Plan of Action (JPOA).   The JPOA is a first step in negotiations that aim “to reach a mutually-agreed long-term comprehensive solution that would ensure Iran's nuclear programme will be exclusively peaceful.”  The comprehensive solution would require Iran to renounce any nuclear weapons plans but would “enable Iran to fully enjoy its right to nuclear energy for peaceful purposes,” all in exchange for “the comprehensive lifting of all UN Security Council sanctions, as well as multilateral and national sanctions related to Iran's nuclear programme.”  In the JPOA, both Iran and the P5+1 (described in the JPOA as the E3+3) agreed to “voluntary measures” in order to build confidence towards a final, comprehensive plan.  Skipping the technicalities, Iran agreed to slow aspects of its nuclear program, and agreed to enhanced transparency and verification, in exchange for modest sanctions relief from the p5+1 (including the United States).  JPOA implementation began on January 20, 2014, and was supposed to last six months.  In July 2014 it was extended to November, and in November it was extended four months (until late March 2015) in order to give the parties time to reach a final “political” or “framework” agreement, and until June 30, 2015, to allow for a final deal with technical annexes.  There is a dispute about the extent to which Iran has lived up to its side of the JPOA thus far – some think it has, some think it has not fully.  In any event, the big dates now are March 31 (the deadline for the interim, “framework” deal) and June 30 (the deadline for the final deal). As I have explained in earlier posts, the “comprehensive solution” that might be reached in June would be a non-binding agreement (i.e. would not be binding under international law).  The Obama administration appears to plan to use the comprehensive solution as a basis for a Security Council Resolution that would lift U.N. sanctions against Iran.  The President would also exercise his authority granted by Congress to suspend or waive U.S. sanctions.  These U.S. sanctions are the primary focus of the INARA. The INARA.  On February 17, 2015, Senator Corker, for himself and eleven other Senators, introduced INARA, the stated aim of which is to “provide for congressional review and oversight of agreements relating to Iran’s nuclear program, and for other purposes.”   Senator Corker recently announced that he would wait until mid-April to bring the bill to a vote.  Note that mid-April is after the deadline for the framework deal with Iran but before the final deal in late June. The 24-page Bill for INARA basically does five things: (1) requires the President to send the text of the Iran deal and related documents to the relevant congressional committees; (2) requires the President to report to Congress with certain assessments (about verification and the like); (3) establishes a 60-day review period during which time the President may not exercise his sanctions-waiving authority and Congress has time (potentially) to narrow this authority, after deliberations; (4) establishes various reporting requirements about Iranian compliance with the deal; and (5) clears the way for quick congressional action to reimpose sanctions should Iran violate the deal. Now a bit more detail on the Bill, with a few comments (including about some anomalies in the statute). Section 135(a) of the Bill requires the President not later than five days “after reaching an agreement with Iran relating to the nuclear program of Iran,” to transmit to the appropriate congressional committees the full text and annexes of the agreement, a “verification assessment report,” and a certification (with some detail) that the agreement serves U.S. interests.  One question here is the meaning of “an agreement with Iran.”  Does it refer to the framework deal due on March 31, or the final deal on June 30?  I assume the latter, since the Bill is not being considered until after the former is due for completion.  But the Bill could be much clearer on the precise “agreement” it is referring to, especially since (as Sanger and Gordon report in the NYT this morning) various agreements of various forms are in play.  As the Bill stands one can imagine an Executive branch lawyer concluding that some aspects of the “deal” with Iran are not an "agreement" implicated by the Bill. Section 135(b) of the Bill establishes a 60-day period following transmittal of the agreement to Congress.  During this period, Congress can hold hearings on the agreement, and the President would be prohibited from waiving, suspending, limiting etc. any sanctions relief to Iran.  (There is an exception for earlier actions taken under the JPOA but also a ban on allowing the JPOA to be a basis for further sanctions reduction.)  I see at least two potential loopholes in this part of the statute.  First, the President is barred from waiving sanctions “during the period of review.”  The period of review does not begin until after the President transmits the agreement to Congress.  The President has a five-day window after the agreement is reached to transmit it.  As far as I can tell nothing in the Bill stops him from waiving sanctions during this five-day window.  Second, the President is barred only from waiving sanctions “pursuant to an agreement” with Iran.  Depending on what the Iran agreement says, one can imagine the President claiming that he is waiving the sanctions pursuant to his statutory authority and not pursuant to the agreement, and thus that the Bill’s restriction does not apply. Section 135(c) simply says that the President can give Iran statutory sanctions relief after the 60-day period if, during the period of review, Congress approves the Iran deal or takes no action, but not if Congress enacts a joint resolution stating that it does not “favor the agreement.”  (A joint resolution would itself require either the President’s signature or another vote of two-thirds of each house in addition to the vote needed to enact the INARA.) Section 135(d) concerns oversight of Iranian compliance with the agreement, and basically requires the President to keep Congress closely informed about potential Iranian breaches.  It also requires a semi-annual report on compliance and also on related issues, including “covert nuclear activities taken by Iran,” and assessments of Iran’s money laundering, terrorist financing, and terrorism-related activities.  It requires congressional notification of any new nuclear initiatives with Iran.  And it requires a certification every 90 days of Iran’s good behavior related to the agreement.  These are very burdensome reporting requirements. Sections 135(e)-(i) facilitate expedited consideration of legislation for new sanctions in the event of an Iran breach or of the failure of the President to certify Iran’s good behavior, provide definitions and rules of construction, and state the sense of Congress about the importance of Congress’s role in the Iran negotiations. Analysis.  The Executive branch will not like the very burdensome reporting requirements in this Bill.  But I do not see any constitutional problem here unless the Executive branch argues that the reporting requirements are unconstitutionally onerous, which I doubt they will.  As OLC has opined, “[s]imple reporting requirements, which again are sometimes objectionable on policy grounds, are clearly constitutional as a general matter.”   In substance, the Bill simply aims to give Congress a potential veto on relief from its sanctions if it finds the deal not to be in the U.S. interest, and it also requires the President to make continuing efforts to ensure Iranian compliance with the agreement, which the Executive branch would (or should) do in any event. Having now read the Bill carefully, I have a somewhat different reaction to Denis McDonough’s letter to Senator Corker (and to the White House position on the legislation more generally) than I originally did.   I stand by most of what I said but now think a bit differently about this passage:
[The letter] asks for the type of breathing room in diplomatic negotiations that is traditionally the President’s prerogative and that Republicans would certainly give a Republican President as a matter of principle.  I am not saying that Congress would act unconstitutionally were it to pass the Corker Bill, and I am not arguing against congressional criticism of ongoing negotiations.  I am simply pointing out that what David Brooks recently described as “customary acts of self-restraint” would normally lead Congress to let the President complete the negotiation before weighing in so aggressively.  I know the reason for the aggressive action — Congress worries about being presented with a deal it cannot easily unwind.  But my point still holds.
I would now qualify this statement with these thoughts.  While the Corker Bill, if passed, would be enacted before the final deal with Iran, it does let the President complete the negotiation before Congress weighs in.  The only possible formal impact of the INARA on the negotiation is that the Bill, if made law, would prevent the President from reaching a final agreement to lift U.S. sanctions within the first two months after the agreement.  (We do not know if this is a contemplated part of the Iran deal.)  But even with this caveat, the Corker Bill does not prejudge Congress’s views on the substance of the deal.  Nor does it prevent the President from negotiating the Iran agreement or using the agreement as a basis to lift UN sanctions in the Security Council.   The Bill focuses on the U.S. sanctions that Congress has already enacted.  And it does not even require congressional approval of the deal for the President to be able to lift those sanctions.  It simply establishes a 60-day review period, after the President completes the deal, in which the President’s power to lift sanctions is frozen until Congress can look carefully at the deal; and it specifies the information Congress will seek and the assumptions it will make. This strikes me as a more reasonable position for Congress to take than I originally thought.  Yes, the Bill gives Congress the authority during the review period to enact legislation –-a “joint resolution” – that would remove the President’s current authority to waive sanctions after the 60 days are up.  And yes, that post-INARA legislation might, depending on the nature of the Iran deal, prevent the United States from complying with the deal.  But Congress would have that power—which would require another vote of supermajorities in both houses—regardless of whether it first enacts INARA.  I understand why the President doesn’t want the Congress to announce its intention in legislation now to review the Iran agreement after it is negotiated.  But McDonough’s letter does not dispute that Congress has the final say over congressional sanctions, and everyone knows that Congress will weigh in, regardless of whether its passes the Corker Bill. But there is likely more at stake than when and how Congress announces its intention to review the Iran deal.  McDonough did not say so expressly, but he and the President probably want the ability to waive sanctions without Congress first weighing in, leaving Congress in the politically difficult position of unwinding sanctions relief.  I don’t think the customary deference that Congress shows the President in international negotiations requires Congress to go that far, especially when what is at stake is Congress’s sanctions regime.  Congress could act now to simply take away the President’s waiver authority, and thus remove that presidential negotiating chip altogether.  The Corker Bill allows the President to proceed to offer up Congress’s sanctions to Iran, but simply insists that Congress be able to review the deal before the President follows through on sanctions relief.  I see why the President might want to avoid that fate, but I don’t think see any principle which would demand that Congress comply with the President’s wishes.

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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