Is the deal announced yesterday with Iran unconstitutional?

In a word: probably.

Here is my assessment.  To begin, the Constitution’s text provides the way to make major international agreements – through supermajority approval in the Senate, as set forth in Article II, Section 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.”  This is, moreover, the way the framers and ratifiers understood it: every discussion of international agreement-making in the founding era assumed it would take place through the Senate as Article II, Section 2 describes.  Some argued that this was not enough protection against harmful treaties, and wanted a higher bar – three-quarters of the Senators present, or two-thirds of all Senators, not just of those present.  No one contemplated that treaties could be made in an alternate, less demanding way.

Making major international agreements in the way the text prescribes is not just an eighteenth-century relic; it is the usual course for the United States today (subject to some exceptions noted below).  And the usual course is that if an agreement cannot get two-thirds approval in the Senate, there is no agreement.  Thus the Senate rejected the Comprehensive Nuclear Test Ban treaty in 1999 despite heavy lobbying by President Clinton. For many years the Law of the Sea Convention has remained unapproved because it lacks sufficient votes in the Senate (even though a majority of Senators support it).  The U.N. Arms Trade Treaty, which went into effect in 2014 without U.S. ratification, is so strongly opposed in the Senate that the President has not submitted it for approval, despite U.S. signature on the treaty and the President’s support for it.  And even where the Senate has given consent, it sometimes came only after a difficult campaign.  Most prominently, the New START Treaty, a centerpiece of the Obama administration’s arms control policy, gained supermajority Senate consent in 2010 only by a narrow margin after considerable suspense and debate.

Why might the Iran deal be different?  I see three possible arguments (it remains to be seen which one the administration will emphasize).

(1)  The deal is an executive agreement, done on the President’s independent authority.  Historically presidents have made (and the Supreme Court has approved) some international agreements made on independent presidential authority.  There is a textual basis for this practice.  Article I, Section 10, addressing the powers of the states, distinguishes between “Treaties” and “Agreements or Compacts.” States cannot make the former, but they can make the latter with approval from Congress.  One implication of this section is that the framers recognized a category of “agreements” other than treaties – and thus outside the treatymaking clause of Article II, Section 2.  Perhaps the President’s diplomatic power includes these “non-treaty” agreements.  In my view, the originalist case for such a power is quite strong.

The problem for the administration here is that the agreements made by prior Presidents under this power have been minor and typically limited to settlements of claims, arrangement of military affairs, diplomatic recognition, and other matters within the President’s military and recognition powers.  No President has ever made a long-term arms control agreement on his own authority.  If Presidents could make major long-term agreements on their own authority, simply by calling them agreements instead of treaties, that would wholly undermine the Article II, Section 2 process and make a mockery of the framers’ assumption that the Senate supermajority would check ill-advised presidential treatymaking.

(2) The deal is a nonbinding “political commitment” rather than a treaty.  The essential feature of a treaty is that it is a binding commitment under international law.  Historically presidents have also made nonbinding arrangements without Senate approval – and, in my view, these are within the President’s constitutional power.  Suppose President Obama tells Iran that if Iran takes certain actions or makes certain promises, he will use his statutory authority to suspend sanctions on Iran.  He would be free to change his mind (as would Iran), but assuming he wanted an amicable relationship with Iran, he presumably wouldn’t.  Proposing or undertaking this sort of reciprocal action does not require Senate approval because no treaty has been made.  And it is likely within the President’s executive diplomatic power, because it has been accomplished simply through an exercise of diplomacy. (See prior discussion here [from Jack Goldsmith and Marty Lederman] and here; see also this post from Julian Ku assuming that yesterday’s deal is nonbinding).

The problem with this defense is twofold.  First, a nonbinding agreement – being nonbinding – does not limit future Presidents (at least legally, although there may be political and diplomatic constraints).  This was the central point of Senator Tom Cotton’s famous (or infamous) open letter to the Iranian leaders in March.  Cotton was right on the essentials: a nonbinding agreement is just an undertaking by President Obama as to his own conduct.  The President cannot use a nonbinding agreement to bind successors.

Second, the Iran deal doesn’t look like a nonbinding agreement.  Iran appears to understand it as a binding agreement.  And at least some of its terms appear to (purportedly) constrain U.S. action in the future, beyond the end of President Obama’s term.  It’s likely that a vocal defense of the agreement as nonbinding would substantially undermine the deal.

(3) Congress has approved (or will approve) the deal.  Despite Article II, Section 2, in modern times Congress has approved some very important international agreements by a simple majority vote in both Houses rather than a supermajority vote in the Senate.  Mostly these have been trade agreements such as NAFTA; it is assumed that the pending Trans Pacific Partnership will be approved this way.  If Congress affirmatively approves the Iran deal, that would substantially boost its constitutionality.  Although a majority of Congress is less of a check on the President than a supermajority of the Senate, it remains a substantial check, and one with strong historical support.

I assume, though, that Congress won’t expressly approve the deal.  Can the administration claim Congress has implicitly approved it?  Under the legislation passed last May, Congress will consider the question of lifting sanctions pursuant to the deal.  If Congress approves lifting the sanctions, arguably that would constitute an approval of the deal as a whole (even if Congress doesn’t say so expressly).  But again I assume this is unlikely.

What if Congress votes to disapprove lifting the sanctions, but the President vetoes the legislation and the veto is not overridden?  Or what if Congress fails to act at all?  The President may argue that Congress’ failure to enact disapproving legislation constitutes approval, or “acquiescence,” in the deal.  However, this argument appears to confuse two issues.  Prior to May, the President had statutory authority to suspend sanctions; the May legislation limited that authority by giving Congress a right to disapprove.  If Congress fails to disapprove suspension within the statutory period (either because it does not act or because the President’s veto isn’t overridden), the President regains his prior authority to lift the sanctions.  But that doesn’t speak to Congress’ approval of the deal as a whole.  In particular, it does not speak to Congress’ view of whether a future President could re-impose sanctions.

Professor David Golove previously made a similar argument which may prove especially attractive to the administration.  In his view, the May legislation already approved the deal, by assuming the deal would take place and reserving Congress’ ability to disapprove it if it wanted to.  One might describe this as authorizing the deal, subject to a “veto” by Congress; if Congress fails to exercise the “veto,” then the prior approval stands.

I think, though, this reading of the May legislation isn’t plausible.  It’s important to recall that, whatever the administration may now say, in March and April of this year it described the developing deal with Iran as a nonbinding arrangement (see further discussion here from Goldsmith and Lederman).  (Presumably it did so to forestall constitutional objections, since it made clear that it did not plan to seek Congress’ approval).  Thus the context of the May legislation was that the President planned to make a nonbinding arrangement without Congress’ approval and, pursuant to that arrangement, exercise his statutory power to suspend the sanctions.  Thus the point of Congress’ legislation was to limit the President’s power to suspend sanctions pursuant to a nonbinding agreement (which it assumed the President would conclude on his own authority).  To now argue that the legislation approved a binding agreement takes it completely out of context.

Returning to the Constitution’s text, the basic design is that major international agreements require Senate approval to guard against ill-advised undertakings by the President alone.  Substituting approval by a majority of Congress for a Senate supermajority is already a softening of the constitutional regime.  But the President isn’t (I assume) going to get approval by a majority of Congress.  Trying to find approval in Congress’ failure to act, or claiming (as Professor Golove appears to) that Congress inadvertently approved a deal it didn’t intend to approve, goes far beyond the constitutional design. If we are going to rely on extraconstitutional approval by Congress to substitute for the constitutionally-required approval by the Senate, fidelity to the constitutional design seems to require at least that Congress’ approval be directly and honestly obtained (as it was, for example, with NAFTA and the other congressional-executive trade agreements).  The alternative is essentially unilateral presidential agreement-making (see this article by Oona Hathaway): the President’s lawyers will almost always be able to claim some way in which Congress arguably implicitly approved his action.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey