He makes two arguments:
First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”. Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).
Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers. Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval. That is by far the most important U.S. obligation under the JCPOA. The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.
The consequence, he adds, is that:
Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution. For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law. A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.
Professor Ku points to the 1972 Shanghai Communique between the U.S. and China as precedent for a significant nonbinding agreement done on independent presidential authority. I agree that the Shanghai Communique (which established the basis for U.S.-China diplomatic relations) was constitutional as an aspect of the President’s executive power over foreign affairs. But I think it was a very different matter from the Iran agreement. Here is the only really substantive commitment by the U.S. in the Communique:
12. The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan. In the meantime, it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes. …
This is very different from the Iran JCPOA on both dimensions I identified as constitutionally problematic in my prior post.
First, it is not written in the language of binding commitment. It simply says that the U.S. “acknowledges” [for the moment] that there “is but one China.” In contrast, the JCPOA has specific commitments, timetables, and even a dispute resolution process. It looks much like a binding agreement would look. And the U.S. has not (so far) been clear that the JCPOA is nonbinding. (Nonetheless, I agree with Professor Ku that (a) the best argument for its constitutionality is that it is nonbinding, and (b) if it is nonbinding, it would have the consequences — or rather lack of consequences — he identifies).
Second, unlike the JCPOA, the Communique does not purport to commit the U.S. executive branch to specific actions in the distant future. It only states the U.S.’s current policy position. It does not imply anything about how future presidents might view the situation. In contrast, the JCPOA contains specific commitments about things the U.S. will do (or refrain from doing) in the distant future (after President Obama’s term has expired).
To expand a little on my prior post, I think the latter feature of the JCPOA makes it constitutionally problematic even if it is unambiguously nonbinding. This seems to follow from the basis of the President’s constitutional authority to give diplomatic assurances. The President can’t make promises binding on the U.S. as a whole in this situation (since these would need to be approved by the Senate), but he can make diplomatic representations about what he himself will do (that’s part of his diplomatic power). It follows that he can make conditional representations — that is, he can say: I will do X if you do (or agree to do) Y. As a result, a nonbinding agreement relating to matters within the President’s power is constitutional, because it is in effect a conditional representation. However, the President can’t make diplomatic representations about what some other body will do. That is, he can’t give assurances that, for example, Congress will pass legislation; he can’t speak for Congress (even in a nonbinding way). Similarly, it seems also to follow that he can’t give assurances about what a future president will do. Just as the current president doesn’t control — and so can’t speak for — Congress, he likewise doesn’t control, as so can’t speak for, a future president. But in making an agreement (even a nonbinding one) that would have to be carried out by a future president, President Obama is purporting to speak for a future president. I do not see any constitutional source for this authority.
NOTE: This post was originally published 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.