President Trump announced last Friday that he would not certify the Iran nuclear deal. But instead of asking Congress to reimpose sanctions on the rogue nation, he asked Congress to revise Corker-Cardin (INARA, the Iran Nuclear Agreement Review Act) to set trigger points that would reinstate sanctions if Tehran fails to meet certain requirements.
Here’s a little secret that Senate Minority Leader Charles Schumer and other Democratic Party critics of the president’s Iran policy won’t admit to: It was the President Obama’s fault that Trump was able to make that Iran speech. Not because Obama made a lousy deal with Iran (although that’s true) or because Obama lied to the American public about the deal (also true). Obama gets the blame because of his hubris. The former POTUS knew he didn’t have the Senate votes needed to approve a treaty, so he did not submit the deal in a constitutional manner as a treaty; doing so would have tied President Trump’s hands. Instead, he skirted the Constitution and treated it as an impermanent executive agreement.
When he was George Washington’s Secretary of State, Thomas Jefferson wrote:
“It is desirable, in many instances, to exchange mutual advantages by Legislative Acts rather than by treaty: because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient, can be dropped at the will of either party: whereas stipulations by treaty are forever irrevocable but by joint consent.” Executive agreements can be tossed in the trash at any time.
On the other hand, Article 2 Section two of the Constitution, which explains the treaty process, says: “He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”
In other words, a treaty needs to get two-thirds of the Senate’s approval and then the U.S. and all future presidents are bound to the treaty. Instead, the President Obama labeled the JPCOA as an executive agreement. Executive agreements between the U.S. and other countries are short-term in nature. The Supreme Court has ruled more than once that executive agreements are allowed as part of the enumerated foreign policy powers of the president.
Why did the founders give the power to the Senate and not the House? Because they didn’t want treaties passed without active deliberation; they didn’t want treaties to be passed easily because they were permanent.
The Corker-Cardin bill was an unconstitutional abrogation of the Senate’s treaty power, but no one in the Senate had the guts to fight for their constitutional treaty rights (except for Tom Cotton, R-AR). The review of the agreement bill was meaningless because even if Congress voted to disapprove the JCPOA the president could veto their disapproval. Note that the way the bill was worded, a “Yes” vote was against the deal and a “No” vote was for the deal (doublespeak anyone?).
Of course, as it turned out the Senate never even voted on the deal because senators such as New York’s Kirsten Gillibrand ignored their voters and filibustered the motion to vote. After all, the Democrats didn’t want their Senate caucus to have to go on the record supporting the deal and ignoring the Constitution.
Because President Obama treated the JCPOA the same way he treated the Paris climate deal, President Trump could pull out of it if he wanted. Instead, he decertified the Iran deal and will let Congress decide.
In all probability, President Obama would not have been able to get two-thirds of the Senate to approve the deal. Then again, if it didn’t have the support of the Senate, it shouldn’t have been enacted in the first place. Perhaps if Obama followed the Constitution Iran would still be suffering from crippling sanctions and willing to negotiate a fairer and more permanent treaty.