The Proposed Iran Nuclear Weapons Law: Fair to Congress and the President

The bill (S 615), unanimously passed by the Senate Committee on Foreign Relations on April 14th, gives Congress an appropriate role in reviewing any agreement that President Obama may reach with Iran regarding its nuclear weapons program, without tying the President's hands in advance. There will surely be cries of "congressional surrender" from some, and responses of "congressional meddling" from others, but both are mistaken. Here's why the compromise is a sensible and constitutional resolution for both Congress and the President that should be enacted into law.

In recent years, the United States has been imposing increasingly severe economic sanctions on Iran because of its program to develop nuclear weapons. Those sanctions have brought Iran to the bargaining table, and Congress is rightly concerned that they not be removed unless we are confident that Iran has at least put its weapons program on hold for a substantial period of time. Some of the laws establishing those sanctions allow the President to remove them unilaterally, while for others Congress appears to retain control over their elimination or modification.

Removing the sanctions is what Iran seeks in any deal, and S 615 provides that the President may not remove them until at least 30 days after he has submitted any agreement with Iran to Congress. If enacted into law, this would override any powers he currently has to modify such sanctions until the Congressional review process concludes. To be certain that Congress has a full 30 days, the bill provides that if the agreement is submitted between July 10th and September 7th, the review period is extended to 60 days. In addition, if both Houses pass resolutions of disapproval, additional delays are built in to allow Congress to try to override what will almost certainly be a presidential veto. As a result, no matter when Congress receives a complete copy of the agreement and other important information required to be submitted with it, no sanctions may be lifted for 60 or more likely 90 days. That delay assures Congress that it can review any agreement before sanctions are lifted and can make its views known to the President, which seems to be an important and constitutional role for Congress. But does it harm the President? The answer is no for these reasons.

First, although the terms under which sanctions might be lifted are not public, it appears that the Obama Administration has no intention of removing them on the day that any agreement is signed. Thus, a delay of even 90 days does not appear to be an obstacle to the President's plans. Indeed, because some statements from high Iranian officials could be interpreted to insist upon immediate lifting of all sanctions when the agreement is signed, S 615 will give the President a legitimate reason for refusing to accept that condition.

Second, if S 615 becomes law, there is a strong argument that, unless Congress can override a Presidential veto of a disapproval of an agreement with Iran, it will give him the authority to remove or modify all sanctions against Iran, including those which are now subject to modification only by a new statute. That argument is based on the fact that the bill lumps all sanctions together for purposes of imposing a short delay and then says, in effect, unless Congress passes a law stopping the agreement, the President may implement that agreement, including its provisions on sanctions. That outcome is very significant for the President because, absent Congressional approval of the agreement, there was a substantial constitutional question whether any such agreement with Iran could trump existing statutory limits on removing sanctions. Although S 615 does not spell out this consequence expressly, the best reading is that Congress has assured itself of appropriate pre-implementation review of any changes in sanctions against Iran, and in exchange has granted the President has permission to remove sanctions under any agreement with Iran that Congress has reviewed.

S 615 has some other benefits for Congress. It spells out in considerable detail what the President must provide to Congress (and when) so that it can conduct its review. It also ensures that much, but not all, of the information be unclassified, and it also provides for expedited consideration of any bill that would try to prevent the agreement from going into effect, to assure that delay, especially in the Senate, does not occur. And if Congress were actually to muster the votes to override a veto and enact a law disapproving of an agreement with Iran, the President would be hard pressed to object on constitutional or other grounds if he signs S 615 into law.
Finally, Congress has specified several sets of reporting requirements that the President must provide to both Houses on a regular basis. All Presidents recognize the right of Congress to engage in appropriate oversight, but often differ with Congress as to what is appropriate. S 615 sets the rules in advance, which should give Congress some help in insisting that it obtain what it needs to be sure that this President and his successors are keeping a watchful eye on Iran to be sure it is fulfilling its end of the bargain.

Congress is right to insist upon a role in the process, but it would have been wrong to tie the President's hands as he attempts to negotiate with the Iranian government. On the other side, the President should recognize that his position will be strengthened, both in the negotiations and in implementing any agreement that is reached, if it has the imprimatur of complying with S 615 by providing a significant and constitutional role for Congress. S 615 should be promptly enacted so that the President can continue his efforts to conclude a fair agreement with Iran.