Can Obama Seal The Iran Deal Without Congress?

Earlier this week, David Sanger reported that the administration is looking at ways to avoid a Congressional vote on a nuclear agreement with Iran, including ways to suspend sanctions via executive fiat. Jack Goldsmith takes issue with that approach, arguing that it would make any eventual deal very tenuous:

The fact that the President does not think he can get Congress on board for any deal with Iran signals to Iran that any deal would be with the President alone, and would last only as long as his waiver authority – i.e. two more years.  The deal could last longer, as it did with the last major unilateral presidential deal with Iran, the 1981 Algiers Accords that effectuated the release of the hostages.  In the transition between the Carter and Reagan administrations in January 1981 some in Congress and the press questioned whether President Reagan should honor the deal that Carter struck with Iran through Algerian intermediaries.  President Reagan did honor it, of course, and the courts upheld his and Carter’s actions.  But the situation with Iran today is different than 1981. …

The bottom line, then, is that any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous.  And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.

William Tobey is on the same page:

For good or for ill, he will own any agreement completely.  If a deal is reached, 35 years of American foreign policy designed to isolate Iran, will inevitably be reversed, with no enabling legislation by Congress and no supporting consensus required or expected in the foreign policy community.  While the American president has broad Constitutional discretion to make foreign policy, the most effective and enduring decisions have enjoyed bi-partisan support. American politics can be unpredictable, but we know that in 27 months Barack Obama will no longer be president.  His successor will then be responsible for implementing any agreement with Iran.  Unbound by treaty, or even any implementing legislation, his or her discretion will be nearly absolute. This is a fragile foundation for an enduring agreement.

Paul Pillar, on the other hand, argues that “for anyone who realizes the advantages of having a deal to restrict Iran’s nuclear program versus not having a deal, the less Congressional involvement right now the better”:

The agreement would impose no new costs on the nation; in fact, it would involve reducing the cost that sanctions inflict on the United States. It does not create, as warfare does, any new exceptions to normal peacetime relations with other states; instead, it would be a move toward restoring normality. It does not, as do some other matters that are appropriately codified in treaties subject to Senate confirmation, impose any new legal obligations on U.S. persons; instead it is a step toward reducing the costly and cumbersome restrictions on U.S. business that the sanctions involve. It does not mark a departure in national goals and objectives, because it is an almost unanimously shared objective that Iran not acquire a nuclear weapon. The issue instead is what is the best way of executing policy to achieve that objective; that is part of what the executive branch is supposed to do.

Drezner’s contribution to the conversation:

Iran appears to recognize that it won’t be able to get all of the sanctions lifted in this round of negotiations. This means that there’s less bypassing of Congress anyway.

More importantly, it seems increasingly clear that the negotiation process itself is less than half the game when it comes to this particular interaction. Any deal between Iran and the United States will also require a long, drawn-out process of trust-building on both sides. Even if it appears thatIran is complying with the interim nuclear deal, members of Congress will need to be persuaded that this represents a genuine shift in Iranian policy. So it’s premature for Congress to permanently revoke sanctions anyway. My hunch is that it would take a less hawkish Prime Minister of Israel years of observed and verified Iranian compliance before Congress could be persuaded to authorize a permanent lifting of sanctions.