The Iran Deal is on the President (and Those Who Supported it in Congress)

By Jack Goldsmith
Friday, November 6, 2015, 1:45 PM

“Anyone who hoped that Iran’s nuclear agreement with the United States and other powers portended a new era of openness with the West has been jolted with a series of increasingly rude awakenings over the past few weeks,” Thomas Erdbrink reported earlier this week in the NYT. Erdbrink described “an anti-American backlash” (including an increase in arrests of Americans), as well evidence of the Iranian government rounding up “journalists, activists and cultural figures.” Jay Solomon had a related story in the WSJ that opens: “Iran’s powerful Revolutionary Guard military force hacked email and social-media accounts of Obama administration officials in recent weeks in attacks believed to be tied to the arrest in Tehran of an Iranian-American businessman.” These stories come on the heels of at least a temporary alliance between Iran and Russia at least in Syria, and possibly a deeper relationship. It also comes on the heels of Iran’s growing influence in the Middle East, and at the dawn of Iran having a $30-180 billion windfall in unfrozen assets, some or a lot of which, many believe, will go to nefarious purposes.

Maybe the Iran Deal will turn out well for the President. Maybe Iran will invest the sanctions windfall in its economy. Maybe the Deal will lead it to better integrate with the international community and strengthen ties with the West and eventually moderate its domestic policies. Some see useful Iranian re-integration in its participation in the Syrian peace talks, and say that any “eventual political settlement in Syria … will have been made possible in no small part by the nuclear deal.”

The President and the Secretary of State clearly hope for these things, but they justified the deal almost exclusively on the notion that any alternative was worse and would likely lead to a hugely destructive war. That argument prevailed in Washington (or at least was good enough to prevent an override of the President’s threatened veto of congressional non-approval of the Deal.) But I don’t think the counterfactual argument will carry much weight in the future, for we will never see that counterfactual world. We will only see the world that Iran comes to inhabit. And invariably, even if unfairly, the President will be judged by whether Iran and the Middle East end up in a better place than the world we saw before the Deal, and not by whether it is better than the counterfactual world without the Deal.

However the Deal turns out, good or bad, the President will be responsible for the outcome. Because he chose to make the Deal on his own authority and not seek approval from the Senate or Congress, the Deal is on him.

Thanks to the much-maligned but actually quite important Iran Nuclear Agreement Review Act, members of Congress will also be accountable for what happened. They are accountable because the Iran Review Act created the possibility of votes on whether to approve or disapprove the Deal. In the House, 162 Democrats voted for approval while 25 Democrats and every Republican voted against it. And in the Senate, most Democrats voted to block (successfully) a Republican resolution of disapproval from coming to the floor. These votes would never have occurred but for the Iran Review Act, which delayed the President’s pre-existing domestic authorities to implement the Deal so that Congress could study it and make its views known. In this sense, the Iran Review Act forced members of Congress to do something they usually try to avoid, and would have avoided but for the Act, namely, taking at least some responsibility for a controversial foreign policy action. If the Iran Deal does not turn out well, those who supported it in Congress will be accountable for their votes long after the President has left Office.