In The Atlantic, Bruce Ackerman (Yale) and David Golove (NYU) argue that the Iran nuclear deal is a binding, congressionally approved agreement — principally in response to these comments by Senator Marco Rubio:
But again, it’s not a treaty. There’s nothing legally binding about it. This is basically the President has decided to use the national security waiver of the current sanctions that are already on the books, and he’s going to use that waiver to lift sanctions on Iran. When I’m President of the United States, we will reimpose those sanctions on day one, and then I will go to Congress and ask them to even increase those sanctions more …
(More from Senator Rubio here, in an earlier interview by Jeffrey Goldberg of The Atlantic). Ackerman and Golove say:
Rubio is wrong. If taken seriously, his position would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization. The accords that undergird these institutions, like the Iran agreement, have their foundation in statutes authorizing the president to commit the nation. The Constitution makes these statutes the “supreme law of the land,” binding the country in the same manner as treaties approved by the Senate. The President can no more walk away from them than he can from any other law or treaty.
But at Opinio Juris, Julian Ku disagrees: President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”. From the core of the post:
I am sorry to say that [the Ackerman/Golove] article, which comes from two super-respected legal scholars, is deeply and badly mistaken.
This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.
But this premise is wrong. The U.S. government has repeatedly stated (see here) that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here). Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).
I completely agree with Professor Ku, and indeed I find the opposing view difficult to understand. The Ackerman/Golove position depends on finding that Congress authorized the President to enter into a binding agreement with Iran, but they point to nothing suggesting Congress has done so. To expand on my earlier arguments and to embellish Professor Ku’s excellent points:
(1) The bill Congress enacted in May (originally the Corker-Menendez bill, passed as HR 1191) does not say anything about authorizing a deal (or indeed, about authorizing anything). It says that the President’s pre-existing statutory authority to lift sanctions on Iran is suspended for 60 days after any arrangement the President might make with Iran regarding sanctions. That is, it’s a limit on the President’s prior authority, not a grant of additional authority. By its terms, if Congress does not act within a certain time to disapprove the lifting of sanctions, the President’s prior sanctions authority is revived. In sum, the bill is about lifting sanctions now, not about promises in the future. Ackerman and Golove are simply wrong in asserting that the Corker-Menendez bill is a “statute[ ] authorizing the president to commit the nation” akin to the statutes that expressly approved NAFTA and the other international institutions they name.
(2) Even if the Corker-Menendez bill is read to implicitly authorize a deal with Iran (subject to Congress’ later right to disapprove), it’s clear that the deal everyone had in mind was a nonbinding arrrangement. As Professor Ku says, the administration’s position at the time (Spring 2015) was that it was negotiating a nonbinding deal. (See also here [reporting comments by State Department spokeswoman Jen Psaki] and here [reporting Secretary of State Kerry’s testimony to Congress]. The reason, of course, was that the administration did not want to ask for Congress’ authorization since it knew that authorization would be denied (even for a nonbinding deal). And constitutionally, the President could only claim he didn’t need Congress’ authorization if the deal was nonbinding. Thus there’s no basis in context to conclude that Congress authorized a binding deal since the administration made clear that a binding deal was not even being contemplated. Put another way, there’s no possibility that the Corker-Menendez bill would have passed if Congress thought it had the effect Ackerman and Golove now claim it had.
It’s true that the bill acknowledges that the President is likely to make an agreement with Iran. But as I argued previously:
[T]he 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.
(3) Even if Congress authorized the President to make a binding deal with Iran (which it clearly didn’t), the actual deal is nonbinding on its own terms, again as Professor Ku explains. (Among other things, it’s no accident that the deal is called a “Plan of Action” rather than a “compact,” “agreement,” or “accord”). It’s also worth noting that even with Senator Rubio and other Republican presidential candidates calling the deal nonbinding, the administration has not claimed otherwise. And for good reason: the argument for congressional authorization is embarrassingly weak, and without congressional authorization any presidential attempt to make a binding deal is almost certainly unconstitutional.