Several weeks ago, 33 Senate Republican and more than 160 House Republicans sent two separate letters to the White House threatening to derail any new nuclear agreement with Iran entered into without Congressional approval.
It will be recalled that the first deal, the Joint Comprehensive Plan of Action (JCPOA) that President Barack Obama struck with Iran in 2015 – later disavowed by President Donald Trump – never did get Congressional backing, although some fancy footwork by the Obama administration suggested that it actually did and engendered much bitterness among Republicans in the Senate and the House. It is understandable then that letters from Republicans in the House and Senate could be interpreted as a signal that President Biden’s well-known fixation on an operational nuclear deal with Iran had reached a turning point. After all, what would have prompted the lawmakers to send such letters if not the imminence of a new deal?
In fact, officials involved in the negotiations reportedly informed key members of Congress and the Senate that an announcement of an understanding with Iran was close and that the end product would largely track the 2015 deal, although the particular terms were not shared.
To be sure, the Russian invasion of Ukraine got in the way of announcing a deal in which Russia was to be a major player. But after a short pause, President Biden now appears to be ready to forge ahead. So the question of a Congressional role is once again upon us. And therein lies an important tale of how President Obama’s deft sleight of hand duped the legislature of the world’s greatest democracy the first time around and prompted legislators to resolve to not allow a repeat.
But, alas, their threats are just so much smoke. Here is why:
Prior to the JCPOA’s adoption by the Obama administration, there was debate as to whether it was a treaty, as many in Congress contended, or an executive agreement, as President Obama insisted. If treaty, it would require a two-thirds approval vote in the Senate. If a presidential agreement, the President could go it alone.
Many in Congress maintained that since the JCPOA committed the U.S. to a course of action respecting one of the gravest issues of our times, it had to be handled as a treaty. The problem for President Obama was that there were not going to be enough yes votes in the Senate for the necessary approval. His adamant position was that he would just go it alone and simply not submit the JCPOA to the Senate.
The Iran Nuclear Agreement Review Act (INARA) of 2015 was the eventual compromise reached. In principle, INARA mandated that the JCPOA had to be submitted to both the House and Senate for a specified period of evaluation. During this period, the President was prohibited from lifting the economic sanctions previously imposed on Iran – one of the key elements of the deal and effectively putting the JCPOA on hold.
At the end of the review period, the Senate and the House would rule by majority vote to either approve or disapprove the deal, although final disapproval would require a negative vote by both houses and a joint formal resolution of disapproval. Absent a joint resolution of disapproval, the President would be free to lift the sanctions and the JCPOA would be, as they say, off to the races.
As it turned out, on September 11, 2015 the House voted against approval, 269-162. In the Senate, however, where there was also a majority in support of disapproval, the Democrats, supporting President Obama, used the filibuster to avoid an official vote. In this manner, they prevented the House and Senate going on the record against the JCPOA in a joint resolution.
If the terms of the apparent new agreement are as similar to those of the original JCPOA as the Biden team says, the same game plan could unfold; given the even split in the Senate, a two-third majority in support of the measure will still be lacking. Indeed, there could be even less support this time around given that most of the reservations about the first agreement’s laughable inspection regime and other key provisions turned out to be on the money.
Ironically, President Biden has said that there is no need for further Congressional review since JCPOA was not rejected the first time around and the terms are similar. On the other hand, he simultaneously claims that JCPOA II introduces important improvements and should be supported.
In their letter to President Biden, the 33 Senate Republicans who threatened to scuttle any new deal relied on INARA’s requirement of Congressional oversight for any new agreement with Iran. The letter says that “[w]e are committed to using the full range of options and leverage available to United States Senators to ensure that you meet those obligations, and that the implementation of any agreement will be severely if not terminally hampered if you do not.” Based on our research, however, there have not been any changes to INARA since 2015; nor is the letter at all specific about what “options” and “leverage” were available. The letter from the 160 House members is similarly toothless.
The resulting prospect is an outcome similar to the first time around and the exploitation of a statute with intentionally built-in headwinds. The empty protestations of lawmakers changes nothing, and we can look forward to the same old wholly inadequate restrictions on Iran and its subsequent enrichment arising from the decision-making of one man.
