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Not a Done Deal

August 2, 2015

Okay, so it’s a bad deal. It may not prevent Iran from obtaining nuclear weapons. Perhaps a better deal was possible. But now it’s done—signed, sealed, and delivered, the law of the land—with the unanimous endorsement of the UN Security Council to boot. So it’s time to stop haggling and move on. Right? Wrong.

The Joint Comprehensive Plan of Action (JCPOA) with Iran is not a binding international treaty. According to the U.S. Constitution (Article II, Section 2, Clause 2), a treaty requires ratification by the U.S. Senate by an affirmative vote of a two-thirds majority. Anticipating a lukewarm reception by the Senate, the administration decided to present the agreement as an arms-control deal rather than a treaty. Therefore, neither the agreement nor the ensuing UN Security Council resolution overrides U.S. law; in fact, neither creates any binding American obligation at all. And some have even suggested that the JCPOA actually conflicts with international law, namely the Nuclear Non-Proliferation Treaty (NPT), the “cornerstone of the nonproliferation regime,” which the U.S. ratified in 1969.

Only Congress can establish U.S. law, and indeed Congress has passed a number of laws imposing financial sanctions on Iran related to its nuclear pursuit, going back two decades: The Iran Sanctions Act of 1996, Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), Iran Threat Reduction Act of 2012, and others. (Another sanctions bill, the Nuclear Weapon Free Iran Act of 2013, was introduced in the Senate but not enacted.) Modifying or annulling these laws would require passing new legislation in the current or a future session of Congress. And of course, any executive actions can also be changed or reversed by a future president; indeed, Republican presidential candidate Marco Rubio has already indicated that he would probably do so.

Some of the sanctions laws allow for temporary presidential waivers. Waiving key sanctions, such as those against Iran’s central bank requires the President to certify “that Iran has stopped its ballistic-missile program, ceased money-laundering and no longer sponsors international terrorism.” Given what we know about Iranian behavior, this would be a difficult case to make, so waivers are not likely either.

In May 2015, the U.S. Congress passed (by 98-1 in the Senate and 415-0 in the House), and President Obama signed into law, the Iran Nuclear Agreement Review Act. The legislation says (p. 33) that “because the sanctions regime was imposed by Congress and only Congress can permanently modify or eliminate that regime, it is critically important that Congress have the opportunity, in an orderly and deliberative manner, to consider and, as appropriate, take action affecting the statutory sanctions regime imposed by Congress.”

Finally, the JCPOA calls for the U.S. to remove state- and local-level sanctions as well (§25). But in our federal system, neither the president nor the U.S. Congress have the authority to do so. In fact, at least two states, California and New York, have already announced that they will keep their sanctions in place. In all, 29 states have divestment laws that forbid investing public funds in companies linked to Iran.

It turns out that the JCPOA may not even be binding on Iran for long. Section 36 of the JCPOA states that if any participant believes that another party has failed to meet its obligations under the deal, it may refer the matter to a Joint Commission as a first step in a “Dispute Resolution Mechanism.” (The final step, if it came to it, is for the complaining participant “to cease performing its commitments under this JCPOA in whole or in part”—effectively, canceling the agreement.) Indeed, a mere 10 days after concluding the JCPOA, Iran sent a letter to the International Atomic Energy Agency (IAEA) accusing the United States of being in “material breach” of its commitments. Is Iran already laying the ground for walking away from the deal?

It turns out that the JCPOA may not even be binding on Iran for long. Section 36 of the JCPOA states that if any participant believes that another party has failed to meet its obligations under the deal, it may refer the matter to a Joint Commission as a first step in a “Dispute Resolution Mechanism.” (The final step, if it came to it, is for the complaining participant “to cease performing its commitments under this JCPOA in whole or in part”—effectively, canceling the agreement.) Indeed, a mere 10 days after concluding the JCPOA, Iran sent a letter to the International Atomic Energy Agency (IAEA) accusing the United States of being in “material breach” of its commitments. Is Iran already laying the ground for walking away from the deal, and resuming unlimited enrichment?

So where do we go from here? Under the terms of the Iran Nuclear Agreement Review Act of 2015, Congress has until September 18, 2015 to vote for a resolution of approval or disapproval of the JCPOA. If Congress votes for disapproval, and the President vetoes the resolution, Congress will have another 10 days to try and override the veto by a 2/3 vote in each chamber. During the entire review period, “the President may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions” on Iran (p. 30 of the Act).

It is far from certain that Congress will vote to block the deal, and even less likely that it will muster the super-majority required to override a presidential veto. But the debate isn’t over yet—and with 16 months left from final passage to the end of the President’s term, any Iranian financial gains may be of limited duration.

 

As always, I look forward to your feedback: Thoughts, additions, and rebuttals are welcome and actively solicited! Please leave your notes in the Comments section below, or send them directly to me.

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