Executive Power

Why the Administration is Perfectly Pleased with the Iran Nuclear Agreement Review Act

By Yishai Schwartz
Tuesday, April 14, 2015, 8:33 PM

Today, just hours before Senator Corker’s slightly amended “Iran Nuclear Agreement Review Act” sailed through committee on a unanimous vote, the Obama administration began walking back its longstanding opposition. White House spokesman Josh Earnest even told reporters “it’s now in the form of a compromise that the president is willing to sign.”

There are two ways to interpret the Obama administration’s apparent about-face. The dominant narrative is that the White House was simply outflanked. The president opposed any robust Congressional review of the Iran deal and genuinely fought the legislation in order to preserve complete leeway to waive sanctions at his discretion. However, allowing the President a free hand to dismantle the sanctions regime all on his own proved to be simply too much for many Democrats. As a matter of principle, these senators wanted Congress to have its say before sanctions collapsed under the weight of presidential waiver and a deal became a fait accompli. The White House saw which way the wind was blowing, recognized it was facing a rare veto-proof bipartisan consensus, and decided to get out of the way. As Senator Corker said shortly after the vote, “The simple fact is that the White House dropped its veto threat because they weren’t going to have the votes to sustain a veto.”

But there is a second reading, one in which the White House’s dance with Corker actually defanged the opposition and produced a result with which the President is quite pleased. On this interpretation, the debate over the bill distracted Congress from pursuing other actions that may have been more damaging; its ultimate form legitimates presidential unilateralism; and by conceding, the president even gets to appear magnanimous.

The primary White House gain from the Corker bill is that the extended back-and-forth over its passage successfully sucked attention and momentum from a second, much more threatening piece of Iran legislation: the Kirk-Menendez sanctions bill. Remember that just a few months ago, these tough new sanctions were marching through the Senate with the backing of prominent Democrats including expected-leader Chuck Schumer. But vociferous opposition from the White House bogged it down, and the emergence of the alternative Corker measure allowed senators to focus their “get tough on Iran” energies in other directions. As debate and negotiations over the Corker bill have continued, the Kirk-Menendez measure has all but disappeared from the agenda.

The Corker bill also seals the administration’s major strategic victory in capitalizing on Congressional inertia. At the start of the Iran negotiations, the assumption was that Congressional action would be needed to lift the sanctions that Congress itself had put in place. In other words, Congress would need to actively support a deal in order for it to take effect. But a few months ago, the administration succeeded in turning this structure on its head. The sanctions regime, White House officials announced, could be almost entirely dismantled through executive action alone. Either through heavy use of waiver authorities included in original sanctions legislation, or through Security Council resolutions, the president made quite clear he simply didn’t need Congress.

Instantly, the entire terms of the debate shifted. No longer would the administration have to convince a skeptical GOP that the deal was a good one. Rather, critics of a deal would now have to convince enough Democrats to override a presidential veto.

Still, there was a legitimacy problem. As Senator Menendez emphasized again today, the original waivers were never meant to be used "wholesale” in order to implement a deal without Congressional action. So even if the president might get away with unilateral suspension of sanctions, doing so would trigger a wave of large-scale condemnation. And as Senator Chris Coons argued today, it might even help build a veto-proof majority to condemn the deal.

But with the passage of the “Iran Nuclear Agreement Review Act,” Congress will take a very significant step toward legitimating that structure. By passing the bill, Congress will explicitly concede both that the president has the authority to unilaterally waive sanctions “wholesale,” and that it expects him to do so. By setting up the review structure, Congress admits that unilateral presidential moves are not only be effective, but legitimate, as long as the president can sustain the support of 34 senators. So not only has the President succeeded in turning the tables on Congressional approval, but he has succeeded in getting Congress to admit that the tables are turned. What’s more, by publicly accepting the bill, the President gets to look humbled and generous at the same time. In the fight for public perception, these are major coups for the Obama administration.

The primary concession that the White House and Senate Democrats won in the final rush to passage amounts to a similarly solid public relations victory. Both Earnest and Senator Barbara Boxer have touted their success in in removing a “terrorism certification” provision from the bill as a substantive victory that materially alters the bill. This is vastly overselling things. The removed  language would not have killed a deal, but would simply have compelled the president to determine every 90 days whether Iran had “directly supported or carried out an act of terrorism against the United States or a United States person anywhere in the world.” If he was unable to determine Iran had not, the original draft would fast-track a vote on reimposing sanctions.

As a practical matter,  even when such a certification is impossible, critics would still need a two-thirds majority to reimpose sanctions over presidential objections. Practically, then, the provision’s removal changes little---and Earnest’s and Boxer’s insistence otherwise comes off as more than a bit silly. As a matter of appearance, however, the president has succeeded in drawing a distinction between Iran’s nuclear violations and its general destabilizing role in the Middle East. The provision’s removal, therefore, represents a public rejection of the looming deal’s most prominent critics: Israeli Prime Minister Benjamin Netanyahu (in his insistence that an end of Iranian support for terror be a condition of deal) and former Secretaries of State Henry Kissinger and George Shultz (in their call to insist “political restraint... linked to nuclear restraint.”)

The White House gained the high ground in any confrontation over the Iran deal the moment its lawyers discovered the sanctions regime could be dismantled by executive action. From then on, Congress and the potential deal’s critics have been playing defense. The delay period imposed by the revised Iran Nuclear Agreement Review Act at least offers some check on the executive. But a check of some sort was likely inevitable---and this one is rather minimal. In the long-term, the appearance of this check may simply offer the president a bit more legitimacy as he unilaterally carries a deal across the finish line.