President Obama now has 41 supporters of his Iran nuclear deal in the Senate, according to Politico. This great victory for the president is likely to ensure the survival of his landmark and controversial “executive agreement” which lifts sanctions on Iran in return for large reductions in their nuclear capabilities, as well as a pledge not to pursue nuclear weapons.
But regardless of what one thinks of the desirability of the president’s deal, one cannot help but be struck by the sorry state of federal separation of powers and the democratic process demonstrated by the Iran controversy. The fact that a minority of one house of Congress is able to effectively approve a president’s foreign agreement against the protestations of a majority of both houses is deeply troubling.
There is a method prescribed for international agreements in the U.S. Constitution: “[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,” (Article II, Clause 2). Yet the president has branded the Iran deal, not a treaty, but a non-binding executive agreement.
Under an executive agreement, the president only has power to make deals regarding matters Congress has trusted to his executive discretion; he cannot intrude upon a power of Congress through an executive agreement. Therefore the president would not have the power to lift any congressionally imposed sanctions on Iran. He has no or severely curtailed discretion to waive, when all sanctions are supposed to be lifted by the deal. This raises the question of whether this “executive agreement” is really a treaty masquerading to get around the Senate.
In addition, it may be regarded as impolitic for the president to go about making a long-term, incredibly important agreement with sovereign nations and assuring them the faithfulness of the United States when this agreement has no legal power in the United States whatsoever. It will not bind the next president, who will take office in about a year and a half – it is doubtful that the president mentioned this part to the Iranian negotiators.
Foreign countries may very well ask themselves what good a long-term agreement with the United States is if the president agrees to actions which may expire at the end of his term. This embarrassment on the world stage would be avoided if the president recognized this agreement as a treaty and ensured the support of two-thirds of the Senate before pledging that the United States’ support of this deal.
Were this not enough, Congress has acquiesced in the evisceration of its Constitutional role and shifted the burden from the president to themselves. Rather than recognizing this agreement as a treaty and requiring two-thirds of the Senate to ratify it, the president’s deal is presumptively valid and only a majority vote of both Houses of Congress can reject the deal. But this disapproval is subject to the president’s veto, which would require a two-thirds vote of each House to override.
A student fresh out of his or her high school civics class would have trouble recognizing this government as that created by the Constitution. Rather than presume a presidential deal is invalid without the Senate’s approval, the president makes a long-term yet supposedly nonbinding “executive agreement” which is presumed valid. This heinous development has resulted in the perverse circumstance where a presidential deal with foreign states made in direct contravention of the wishes of majorities of both Houses of Congress is allowed to stand.
Who is it that rules in this country? It is certainly not the people or their elected representatives.
Perhaps to shield the president from criticisms of anti-majoritarianism and executive overreach, many Senate Democrats seem prepared to filibuster this disapproval bill before Congress. As 60 votes are required to invoke cloture and end debate in the Senate, should the 42 Senators supporting the deal band together, they could prevent a vote on the bill. In this way they save the president from vetoing the bill and in the process continue the expansion of executive power by signaling Congress’ tacit, yet illusory, approval of the president’s actions.
Brian McCarty is a staff columnist for The Daily Campus opinion section. He can be reached via email at firstname.lastname@example.org.