What the NYT Editorial Board Gets Wrong About the Sensible, Bipartisan Iran Review Bill

By Jack Goldsmith
Wednesday, April 15, 2015, 11:58 AM

Here is the Bill passed unanimously by the Senate Foreign Relations Committee yesterday (and here is my lengthy analysis of the similar earlier version of the Bill).   The NYT Editorial Board doesn’t like the Bill.  But not for the first time, it gets some things wrong, and is misleading in other respects.

First, the editorial board says that the Bill “would require Congress to review, and then vote on, the final text of a nuclear deal.”  Not so.  The Bill prevents the President from waiving sanctions for the thirty day review period but it does not require Congress to vote on anything.  Rather, the Bill says that after the 30-day review period, presidential sanctions relief “may be taken …if following the period for review, there is not enacted any such joint resolution.”  In other words, if Congress does nothing after reviewing the deal for 30 days – which is an explicit option – the President can exercise his pre-existing authority to waive sanctions.

Second, the editorial board says that “the Senate committee’s action puts [the President] in a weakened position as the only leader involved in the negotiations who may not be permitted to fully honor commitments that were made.”  This begs the question of what commitments will be in the deal.  There is only one commitment that the Bill would not let the President make:  Relief from U.S. sanctions within the first thirty days after the deal.  It is hard to say that this potential limit puts the President in a weakened position since the President and his staff have always insisted that sanctions relief would not be immediate but rather would be lifted gradually after periods of Iranian compliance.  It is true that Iran's Supreme Leader Ayatollah Ali Khamenei said recently that all sanctions must be lifted the day the deal is signed.  But following Khameni’s statement Obama foreign policy adviser Ben Rhodes stated unequivocally: “It's very clear and understood that sanctions relief will be phased.”  So it seems quite wrong to say that the Bill weakens the President in this regard.

Third, the editorial board says: “In no other country has a legislative body demanded the right to block the agreement. Even if Congress barred Mr. Obama from waiving American sanctions, the European Union and the United Nations Security Council could lift the sanctions they imposed, thus undercutting the American decision.”  The lifting of other sanctions would in no way “undercut” the congressional insistence on reviewing and possibly blocking the lifting if U.S. sanctions.  The U.S. sanctions are independent.  The U.S. sanctions might be less effective if every other country lifts sanctions.  But I do not see why that is of concern to the editorial board, which doesn’t like the sanctions in this context.

Fourth, the editorial board says: “But there is no constitutional imperative requiring Congress to insert itself into the negotiations.”  This is true but misleading.  Congress need not intervene here because the President is not making a binding agreement under international law and thus approval by the Congress or the Senate is unnecessary.   But it is perfectly legitimate for Congress to play a role here.  The only reason the President has the chip of U.S. sanctions to bargain with is that Congress, which enacted the sanctions under its Article I powers, created exceptions to the sanctions in the exercise of presidential discretion based on certain findings.  The President is proposing to exercise the discretion Congress gave him in a way that Congress has doubts about.  So Congress is passing another law to give it thirty days to look at the Iran deal to see if it shares the President’s view on the appropriateness of lifting congressional sanctions.  That is a perfectly legitimate exercise of congressional power.

PS: Here is Marty Lederman's complementary take.