One of my favorite classes to teach is American Foreign Policy, since there are always current event issues present that provide examples of the concepts and ideas of the course. Last spring the US Congress voted itself the power to potentially disapprove the deal with Iran. I used that as a way to talk about institutional power within the US government and with global institutions. Everything played out pretty much as I predicted.
The class had a number of liberals, many of whom were angry at Republicans for trying to mess up Presidential diplomacy, especially after Senator Tom Cotton circulated a letter signed by 47 Republicans notifying Iran that since the deal isn’t a treaty but an executive agreement, the next President can simply choose not to follow it. Is that true?
Yes, it is. Executive agreements historically outnumber treaties by nearly 20 to 1 since the bar for passing a treaty is so high: 2/3 of the Senate. In fact, until 1973 the President didn’t even have to notify Congress of executive agreements! If President Obama signs this, then it is not binding on the next President. The next question: then how can Congress give themselves power to disapprove it?
Because part of the agreement involves removing sanctions which the Congress has the power to nix. That gives them the capacity to intervene and try to thwart the agreement. “So,” one of the more liberal students said, “that means that the Republicans can prevent a global agreement to limit Iran’s capacity to build nuclear weapons and thereby push us to war. Great.”
“Not so fast,” I responded. “Here’s the scenario: Senator Corker wanted Congress to have final say on the deal – that approval would require Congressional action. He could not get enough Democrats on board for that, so instead Congress only has the power to disapprove. If they do that, President Obama could veto that disapproval and opponents of the deal would need 67 Senators on their side to override the veto. That means a number of Democrats would have to oppose it.”
“But even that won’t stop the deal. If there is a deal, nothing Congress does can prevent it from becoming reality due to the nature of the separation of powers.”
That brought puzzled looks from students, so I continued, “Note that this is a UN Security Council negotiation, not a bilateral US-Iranian deal. That means the US would be just one party to the agreement. If a deal is signed, it will quickly become a Security Council resolution, meaning that the international sanctions regime the US helped put in place will end. Russia, China, the EU and the rest of the world will start to do business with Iran. If the US Congress disapproves the agreement, that only keeps US sanctions in place – and that probably would hurt the US more than Iran! Moreover, the US would lose clout in how to enforce and maintain the agreement, if we are not party to it.”
In other words, since the UN Ambassador is part of the executive branch of government, Congress has no influence over how the US votes in the Security Council. That’s Obama’s trump card – if a deal is reached, there really is nothing Congress can do, the sanctions regime will end regardless of how the Congress votes. And that’s exactly how things are playing themselves out!