Some Implications of President Obama’s Plans to Sidestep Congress on Iranian Sanctions

By Jack Goldsmith
Tuesday, October 21, 2014, 9:28 AM

David Sanger recently reported that the Executive branch thinks it can suspend “the vast majority” of congressional sanctions unilaterally if it reaches a deal with Iran to forestall that nation’s nuclear weapons program.  “President Obama will do everything in his power to avoid letting Congress vote on” the matter, Sanger tells us.  “We wouldn’t seek congressional legislation in any comprehensive agreement for years,” says one senior official.

There are many different statutory sanctions against Iran, and Congress’s most recent word – from 2012 – tightens and narrows the President’s authority to waive the sanctions.  Without getting into the details, it nonetheless appears that the President can waive most if not all sanctions against Iran for the remaining two years of his term if he is willing to make the requisite findings.  If he does so, what are the implications for any nuclear deal with Iran?  Answer: The deal will be tenuous.

The fact that the President does not think he can get Congress on board for any deal with Iran signals to Iran that any deal would be with the President alone, and would last only as long as his waiver authority – i.e. two more years.  The deal could last longer, as it did with the last major unilateral presidential deal with Iran, the 1981 Algiers Accords that effectuated the release of the hostages.  In the transition between the Carter and Reagan administrations in January 1981 some in Congress and the press questioned whether President Reagan should honor the deal that Carter struck with Iran through Algerian intermediaries.  President Reagan did honor it, of course, and the courts upheld his and Carter’s actions.  But the situation with Iran today is different than 1981.  Among other differences, (1) Congress appears more skeptical of this deal-to-be than it did of the deal in 1981, (2) President Reagan and Congress faced powerful financial incentives to stand by the deal struck by President Carter (namely, the ability of American firms to recover property expropriated by Iran) that are not present in the current negotiation, and (3) Congress’s consent is probably necessary to make any deal now with Iran work over the medium term in a way that it was not necessary to make the deal work in 1981.

The bottom line, then, is that any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous.  And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.

Here we can see the underappreciated benefits that accrue when the President succeeds in winning congressional approval for a foreign policy deal (whether it is a treaty, a congressional-executive agreement, or something short of those things).  To win such approval the President must expend political capital and convince the American people and its representatives about the value of the deal.  The expenditure of presidential capital signals the importance of the deal to the President.  If he succeeds in winning approval from Congress, that approval credibly conveys that the nation, as opposed to a particular president, is behind the deal.  The negotiating partner thus receives meaningful information about the depth of the United States’(as opposed to the President’s) commitment, which makes possible (but does not guarantee) a deeper and more meaningful commitment by the negotiating partner.  Vladimir Putin understood this when he rejected President Bush’s handshake deal on nuclear weapons reduction and insisted instead on ratification of what became the Treaty of Moscow, which significantly cut U.S. and American nuclear weapons arsenals.

Of course, winning legislative approval for initiatives such as these is hard and sometimes impossible – which is precisely why such approval sends such strong signals about the nature and degree of the nation’s commitment.  President Obama believes, certainly correctly, that Congress is simply not going to cooperate on this issue right now.  (Sanger’s article will likely make Congress even more ornery on this topic.)  So if he wants a deal with Iran (which he clearly does), Obama must strike the deal on his own.  The President’s team might think that a short-term and tenuous deal with Iran – with the implication that Iran’s commitment to the deal will be tenuous as well – is better than no deal at all.  And it likely further thinks that the deal will prove its worth over two years, and might persuade the next President and Congress that it is worth continuing.  (Count me as doubtful on this last point.)

A final point.  Sanger notes that, just as Iran must assess the domestic support in the United States for any deal the President strikes, the United States similarly must assess whether the Iranian negotiator, Mohammad Javad Zarif, can sell his deal to the Iranian Revolutionary Guard and many of the mullahs.  Both sides are playing two-level games, and each is trying to understand how the domestic game by the adversary informs what is achievable in the international negotiation.  And surely there is much bluffing and posturing going on in each of these three negotiations (Obama-Congress, Obama-Zarif, Zarif-Revolutionary Guard).  Even with these complications, I still believe that Obama’s plan to sidestep Congress suggests that the United States’ commitment to any deal with Iran would be fragile, and that Iran will understand this, and shape its commitment to the deal (and its future plans for nuclear weapons development) accordingly.