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August 29, 2015 / 14 Elul, 5775
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Iran Sanctions Legislation: The Waiver’s The Thing

Despite the interim agreement between Iran and several world powers, which provides for a softening of sanctions in return for a curtailment of elements of the Iranian nuclear development program, many members of Congress have resisted calls from the White House to defer legislation that would impose increased sanctions on Iran should a satisfactory final agreement not be reached or the Iranians fail to adhere to the temporary deal.

But it is not just the passage of legislation authorizing a new round of sanctions that is needed. Rather it is legislation without the presidential waiver provisions that presidents in general, and President Obama in particular, regularly exploit.

The Obama administration has said that any new legislation, even with an operative date of six months up the road as some lawmakers are proposing, would likely scuttle any further talks with Iran. Indeed, Iran’s foreign minister has said “the entire deal is dead” in that eventuality.

In our view, though, Iran is not in a position to demand anything, and the prospect of increased sanctions should be placed vividly before its leaders. Nor should it be forgotten that it was the sanctions regime plus the threat of military action from the U.S. and Israel that brought Iran to the table in the first place.

To be sure, Secretary of State Kerry does make an additional point that has more resonance:

The risk is that if Congress were to unilaterally move to raise sanctions it could break faith in those negotiations and actually stop them and break them apart…. Germany, Great Britain, France…and Russia, China and the United States are all agreed on [the interim] proposal that’s on the table. If all of a sudden sanctions were to be increased, there are members of that coalition who have put it in place who would think that we are dealing in bad faith, and they would bolt. And then the sanctions would fall apart.

Ironically, however, it is the triumphalist tone adopted by Iranian leaders that likely will keep the coalition intact. No one relishes having his nose rubbed in the sand. And Mr. Kerry does himself no favors by appearing to downplay the well-grounded concerns of many lawmakers, especially when seen against the backdrop of the Obama administration’s continuing efforts at outreach to traditional adversaries of the U.S.

If history is any guide, an eventual compromise on legislation aimed at addressing Iranian recalcitrance will contain a clause that will effectively allow the president to determine whether Iranian compliance has been satisfactory. And history has also taught us that such provisions often vitiate the Congressional will and should be carefully considered.

An important example is the use of the so-called waiver power by three presidents in connection with the Jerusalem Embassy Relocation Act of 1995, passed by overwhelming majorities in both houses of Congress. Under its express terms, the U.S. embassy in Tel Aviv had to be moved to Jerusalem by May 31, 1999, with severe restrictions on the State Department’s overseas expenditures should it not be moved.

However, it also provided that the president could avoid these restrictions if he determined, at six-month intervals, that the restrictions would adversely affect American security interests around the world. But the obligation to move the embassy would continue, despite the penalty for non-compliance having been waived.

Yet Presidents Bill Clinton and George W. Bush, like President Obama, regularly took the position that they were empowered to refuse to move the embassy by simply asserting every six months that national security would be jeopardized by the restrictions on State Department spending, a power nowhere to be found in the law.

Just last week Mr. Obama announced he was invoking the waiver power for another six months. If presidents can figuratively drive a truck through such a narrow opening, what is possible with a more generalized waiver power?

President Obama has also regularly invoked broader national security waivers in legislation restricting funding to the Palestinian Authority or to international agencies supporting the PA or terrorist groups.

In drafting any new Iran sanctions legislation, our elected representatives need to great care that the current president not be enabled to further indulge his fantasies about resetting U.S. relationships around the world.

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