Iran Deal Could Be Void Without Inclusion Of Side Deals

by William Teach | September 7, 2015 8:13 am

There’s something very interesting in the Iran Nuclear Agreement Review act, beyond the notion that it turned the typical, and Constitutional, method of the Senate approving all treaties and deals on its head, and that it could be null and void since the agreement is very different from what the INAR was all about. It was never meant to deal[1], statutorily per the text, with things like weapons and ballistic missiles. But, for all its flaws and problems, there is something that it was meant to deal with, as Congressman Mike Pompano and constitutional litigator David B. Rivkin Jr note

A side agreement could void the Iran deal[2]

The Iran Nuclear Agreement Review Act of 2015, which requires the president to submit to Congress the nuclear agreement reached with Iran, represents an exceptional bipartisan congressional accommodation. Instead of submitting an agreement through the constitutionally proper mechanism — as a treaty requiring approval by a two-thirds majority in the Senate — the act enables President Obama to go forward with the deal unless Congress disapproves it by a veto-proof margin. Unfortunately, the president has not complied with the act, jeopardizing his ability to implement the agreement.

The act defines “agreement,” with exceptional precision, to include not only the agreement between Iran and six Western powers but also “any additional materials related thereto, including . . . side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.” But the president has not given Congress a key side agreement between Iran and the International Atomic Energy Agency (IAEA). This document describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved, as well as the precise operational parameters of the verification regime to which Tehran will be subject. (WT-bold mine)

This omission has important legal consequences. At the heart of the act is a provision, negotiated between Congress and the White House, freezing the president’s ability to “waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran” while Congress is reviewing the agreement.

They go on to note that the president cannot take any action during the review process, but that process cannot start till Obama submits all information, including side deals, to Congress. Per Corker[3]:

The president is prohibited from suspending, waiving or otherwise reducing congressional sanctions for up to 52 days after submitting the agreement to Congress. Following an initial review period of 30 days, the legislation includes an additional 12 days if Congress passes a bill and sends it to the president. If the president vetoes the legislation, Congress would have an additional 10 days to override a veto. If the deal is submitted between July 10 and September 7, the review period increases to up to 82 days (60 days plus 12 days for the president to veto and 10 more days for Congress to override a veto). During this period, Congress may hold hearings and approve, disapprove or take no action on the agreement. Passage of a joint resolution of disapproval (over a presidential veto) within the review period would permanently prevent the president from waiving or suspending the congressional sanctions.

What does all that mean? Nothing can happen until Obama submits all information, including side deals. Back to the original op-ed

Congress must now confront the grave issues of constitutional law prompted by the president’s failure to comply with his obligations under the act. This is not the first time this administration has disregarded clear statutory requirements, encroaching in the process upon Congress’s legislative and budgetary prerogatives. The fact that this has happened again in the context of a national security agreement vital to the United States and its allies makes the situation all the more serious.

Not that Obama will care in the least. The authors recommend that, if Obama fails to submit all material by the end of today, Congress should vote to register its view that Obama failed to comply with his obligations under INAR, a bill he himself signed.

Crossed at Pirate’s Cove[4]. Follow me on Twitter @WilliamTeach[5].