Despite the latest provocation from the Islamist Iranians, such as the seizure of a U.S.-protected ship in the Persian Gulf last week, the Obama administration continues to push its reckless appeasement with the Islamic Republic of Iran, even though its plans are both unconstitutional and statutorily invalid. While the Endowment for Middle East Truth (EMET) has endorsed the Iran Nuclear Agreement Review Act of 2015, the Corker-Menendez-Cardin legislation, and been open to amendments to that legislation that would improve it, we are under no illusion that this legislation as it is currently constituted can completely solve the problem. This legislation only affects the president's ability to lift sanctions on Iran temporarily and does not speak (directly) to any final agreement as a whole. A complete solution requires the U.S. Senate and the President to obey the U.S. Constitution and already existing statutes, like the Nuclear Non-Proliferation Treaty, which is the law of the land, and vote on any final agreement with Iran as a treaty.

According to the U.S. Constitution, Article II, Section 2, Clause 2, “The President... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....”  The main question is -- is any final agreement with Iran to restrict its nuclear program to build nuclear weapons a treaty according to the Constitution?   The answer seems to be yes.  As reasoned by former Ambassador John Bolton and Constitutional scholar John Yoo:

(A)greements that extend beyond a president’s time in office or make long-term commitments of U.S. sovereignty must undergo the Article II treaty process. An enduring non-aggression pact, or even a unilateral commitment not to use American force on a lasting basis, demands the participation of other branches of government. Together with ending economic sanctions (which Iran will demand), these commitments would work a significant change in the U.S.–Iran relationship that is tantamount to a peace treaty.

Thus, since, “as some reports indicate, the administration has pledged not to use military force against Iran in exchange for a halt to its nuclear-weapons program, such a commitment would almost certainly require Senate ratification.”  Also, the Iranians are demanding the permanent end of U.S. sanctions, which President Obama cannot do alone; he can only waive them temporarily. For a permanent removal, President Obama need’s the Senate’s advice and consent. 

The arguments that any agreement with Iran over nuclear power is not, technically, an “arms control agreement” either because Iran is actually focused on peaceful nuclear power, or because the agreement is not technically “controlling arms”, are simply not credible. In general, it makes little sense for Iran to develop peaceful nuclear energy, considering the costs involved. Arak and Fordo are also not necessary intended for peaceful nuclear power. So, why are the Iranians developing this program, and building these nuclear facilities?  Clearly, to develop nuclear weapons. The IAEA has already reported on how unlikely it is that Iran is seeking a peaceful nuclear program. Further, the West, including the U.S. under President Obama, has passed numerous international resolutions and sanctions laws that assume that Iran is pursuing nuclear weapons, and that it should be punished until it agrees to cease and desist in doing so.  Even in his statements regarding the negotiations, President Obama has specifically acknowledged that they are focused on preventing Iran from getting a nuclear weapon. Limiting Iran to zero nuclear weapons is certainly a form of arms control.  

This is not to say that there is no such thing as a sole-executive agreement. The holdings from the cases (United States v. Belmont 301 U.S. 324 (1937); United States v. Pink, 15 U.S. 203 (1942)) establish that a sole-executive agreement exists and is enforceable. However, in addition to the temporary nature of the commitments, when ruling on sole-executive agreements in the past the Court has always required at least some evidence that Congress has at least acquiesced to those policies. Since it is well-known that a majority of Congress does not support the current negotiations and the framework that has supposedly been worked out, this makes it even more likely the president cannot rely on a sole-executive agreement. Further, also arguing against the conclusion that these negotiations are producing a sole-executive agreement is the Restatement of Foreign Relations Law of the United States, which states that the president may validly conclude executive agreements that (1) cover matters that are solely within his executive power, or (2) are made pursuant to a treaty, or (3) are made pursuant to a legitimate act of Congress. Since permanently dismissing the sanctions on Iran is within the purview of Congress, and the administration is not relying on any other treaty or legitimate act of Congress, none of these requirements exist in the Iran negotiations. Thus, this cannot be considered a sole-executive agreement.

But even if a final deal with Iran were to somehow escape the Constitutional hurdles, it still falls victim to the Nuclear Non-Proliferation Treaty. That treaty is now the law of the land, having been consented to by the U.S. Senate in 1969: 

The Nuclear Non-Proliferation Treaty (NPT) forbids any of its non-nuclear armed signatories to have nuclear weapons.  Full stop.  The P5+1 have been attempting to amend the NPT without going through the process established by the NPT itself -- and attempting to do this for just one of its 190 signatories: Iran.  Under the terms of the NPT, the P5+1 (the five permanent members of the UN Security Council, plus Germany) have no legal authority to amend the treaty unilaterally, to abrogate the treaty, or to allow nations that are signatories to the NPT to abrogate the treaty.  The NPT can only be changed through a review conference of all parties. All changes agreed to after that must be consented to by the signatory nations, according to their own legal requirements.  The rules, therefore, ever since the U.S. Senate consented to the treaty in 1969, are that the Senate would have to approve any change to the treaty. Otherwise, any nation that is a signatory to the NPT could say that it is no longer bound by the terms of the agreement and decide to have their own nuclear weapons capability --- as many have already stated they might do, starting with Saudi Arabia, Turkey and the United Arab Emirates.

Therefore, to override an already passed statutory law – the Nuclear Non-Proliferation Treaty – the president cannot rely solely on a sole-executive agreement. 

It is unfortunate that President Obama, in his zest for a deal with the Islamic Republic of Iran, has chosen to disregard and/or undermine the normal Constitutional process when it comes to treaty making. Thanks to the willingness of Europeans desperate for Iranian oil and business, and American enablers of the President, it is quite possible President Obama will succeed in achieving his goal. However, this does not make what President Obama is doing right, either constitutionally, legally, or based on U.S. national interest.  And as always, EMET will continue to promote the truth, and oppose President Obama’s reckless appeasement of Iran.  

The Endowment for Middle East Truth (EMET -- which means truth in Hebrew) is a Washington, D.C. based think tank and policy center with an unabashedly pro-America and pro-Israel stance. EMET prides itself on challenging the falsehoods and misrepresentations that abound in U.S. Middle East policy.