Foreign Relations & International Law

Why Republicans Skeptical of the Iran Deal Are Trying to Make it Easier for the President to Implement the Iran Deal

Jack Goldsmith
Tuesday, April 28, 2015, 12:53 PM
The NYT reported yesterday that the Iran Review bill is “now endangered by Republican amendments that would peel away bipartisan support for a measure begrudgingly accepted by the White House this month.

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The NYT reported yesterday that the Iran Review bill is “now endangered by Republican amendments that would peel away bipartisan support for a measure begrudgingly accepted by the White House this month. “ It identifies three such bill-killing amendments: one “that would require Iran to recognize Israel,” one that “would give any final nuclear deal the status of a treaty” that must be approved by 2/3 of the Senate, and one that “would require the release of American citizens detained in Iran as part of an agreement.” (Here is the actual text of the amendments.) If the bill is killed by the amendments rather than enacted without them (those are the two realistic options), then ironically the President would have an easier time implementing the Iran deal.  The bill would bar the President from waiving sanctions for a specified period and would impose burdensome reporting requirements.  If the bill does not pass, the President can waive sanctions when and how he likes and would have no new formal reporting duties. Why would Republicans skeptical of the Iran deal want to remove (or prevent creation of) obstacles to the President’s implementation of the deal?  Probably because they know that, whether the Review bill passes or not, Congress ultimately cannot stop the President from implementing the deal.   With or without the Review bill’s short-term obstacles, Congress needs a veto-proof supermajority in order to block the deal by altering the President’s substantive statutory power to waive sanctions.   As Eli Lake reported yesterday, Speaker Boehner “privately acknowledged … that his party doesn't have enough votes to overcome a veto of any resolution disapproving the nuclear-weapons deal President Barack Obama hopes to reach with Iran.” In this light, I can think of three related reasons why opponents of the Iran deal want to include amendments to kill the Iran Review bill even though doing so would make it “easier” for the President to implement the deal.  First, they might want to burnish their credentials as anti-Iran hawks.  (Amendment sponsors include presidential candidates Senators Cruz and Rubio.)  Second, they might think that passing the Review bill and then failing to overcome a veto is worse politically (i.e. looks like more of a win for the President) than if the bill does not pass and they are unable to muster the veto-proof votes to kill the Iran deal.  Perhaps they think the stakes of the loss are lower without the extensive and elaborate information-gathering and review that the Iran Review bill contemplates.   Third, the unamended bill allows Democrats to appear slightly tough on Iran by voting to review the Iran deal and to delay its implementation, safe in the knowledge that the leader of the party can still negotiate and implement the kind of deal he wants.  The amendments complicate this position since the Democrats have to vote (and take a stand on) them.  (By the way, points 2 and 3 underscore the advantages of the Iran bill to the President, and, in combination with knowing that he has the votes to sustain a veto on the ultimate approval for the deal, likely explain his reversal and acceptance of the bill.)

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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