The review process under the Corker law never began — by the law’s own terms.
By Andrew C. McCarthy
On Wednesday, Barbara Mikulski became the 34th Senate Democrat to announce support for the deal, which lends aid and comfort to a regime that continues to call for “Death to America.” Under the Corker Roadmap to Catastrophe, Mikulski’s assent ostensibly puts President Obama over the top. After all, the legislation sponsored by Senate Foreign Relations Committee chairman Bob Corker (R., Tenn.) and other Beltway GOP leaders reverses the Constitution’s presumptions against international agreements that harm national security. In essence, Corker requires dissenters from the Iran pact to round up a two-thirds supermajority opposition in both congressional chambers (67 senators and 290 House members). If the Constitution were followed, the burden would be on the president to convince either 67 senators to support a treaty, or majorities of both chambers to make the pact legally binding through ordinary legislation.
Mikulski’s announcement meant that dissenters would now be able to muster no more than 66 Senate votes against the deal. In fact, they won’t get that many. Additional Democrats, such as Cory Booker (N.J.) and Mark Warner (Va.), have dutifully trudged into Obama’s camp.
As things are trending, Democrats may even be spared the embarrassment of having to cast formal votes in favor of the appalling deal they gently describe as “flawed.” There are 46 Senate Democrats (including a pair of nominal “independents”). Only three Democrats — Chuck Schumer (N.Y.), Robert Menendez (N.J.), and Ben Cardin (Md.) — have committed to voting “no.” Thus, Obama may well amass the 41 votes needed to filibuster Senate consideration of the Iran deal. He would then avoid the humiliation of having to veto a “resolution of disapproval” that would illustrate how intensely unpopular his deal is with Congress and the public.
So game over, right?
Wrong.
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While maddening, the Corker bill is not an abject congressional surrender to Obama and Tehran. It is a conditional surrender. It would grant Obama grudging congressional endorsement of the deal in the absence of a now unattainable veto-proof resolution of disapproval, but only if Obama fulfills certain basic terms. Obama has not complied with the most basic one: the mandate that he provide the complete Iran deal for Congress’s consideration. Therefore, notwithstanding Washington’s frenzied assumption that the 60-day period for a congressional vote is winding down, the clock has never actually started to run. Congress’s obligations under Corker have never been triggered; the Corker process is moot.
As I have previously outlined, Obama has withheld from Congress the Iran deal’s key inspection and verification provisions. As is his wont, the president is engaged in a fraud. He and his underlings repeatedly promised the public that there would be aggressive inspections and that Iran would have to come clean about its prior nuclear work so we could have an accurate baseline to determine whether the mullahs cheat in the future. But Iran was never going to agree to such terms.
Our legacy-hunting ideologue of a president naturally capitulated on this point, but he also understood that if his capitulation were obvious — if the inspection and verification terms were revealed to be a joke — even Democrats might abandon him. So Obama and his factotum, Secretary of State John Kerry, snuck these terms into a “side deal” that is purported to be strictly between Iran and the International Atomic Energy Agency (IAEA). Notwithstanding that they are the crux of the deal from the American perspective, Obama takes the position that these terms may not be revealed to Congress, a stance the IAEA has dutifully backed.
Sorry, Mr. President, too-clever-by-half won’t get it done this time — or at least it shouldn’t, as long as Republicans follow the law they wrote and Obama signed.
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The Corker legislation — formally known as the Iran Nuclear Agreement Review Act of 2015 — is crystal clear. In its very first section, the act requires the president to transmit to Congress “the agreement. . . . including all related materials and annexes.” It is too late to do that now: the act dictates that it was to have been done “not later than five days after reaching the agreement” — meaning July 19, since the agreement was finalized on July 14.
Underscoring the mandate that all relevant understandings in the Iran deal — including, of course, the essential understandings — must be provided to lawmakers, the act explicitly spells out a definition of the “Agreement” in subsection (h)(1). Under it, this is what the administration was required to give Congress over six weeks ago in order to trigger the afore-described Corker review process:
The term ‘agreement’ means an agreement related to the nuclear program of Iran . . . regardless of the form it takes, . . . including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, 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.
The act could not be more emphatic: To get the advantage of the favorable Corker formula that allows him to lift the anti-nuclear sanctions with only one-third congressional support, the president was required to supply Congress with every scintilla of information regarding verification. In particular, the act expressly demands disclosure of the terms pertinent to whether the IAEA is capable of executing aggressive inspections in Iran and has a plausible, enforceable plan to do so.
That is why, in conjunction with providing Congress the entire agreement, including any and all “side deals” between Iran and the IAEA, the act mandates that Secretary Kerry provide a “verification assessment report.” In it, the Obama administration must demonstrate not only how it (i) “will be able to verify that Iran is complying with its obligations and commitments” and (ii) will ensure the “adequacy of the safeguards and other control mechanisms” to ensure that Iran cannot “further any nuclear-related military or nuclear explosive purpose.” The administration must further explain:
the capacity and capability of the International Atomic Energy Agency to effectively implement the verification regime required by or related to the agreement, including whether the International Atomic Energy Agency will have sufficient access to investigate suspicious sites or allegations of covert nuclear-related activities and whether it has the required funding, manpower, and authority to undertake the verification regime required by or related to the agreement.
Nor is that all. In making this report, the administration is required to rebut a presumption, based on solid experience, that Iran will cheat. Specifically, it is to be presumed that the jihadist regime will “use all measures not expressly prohibited by the agreement to conceal activities that violate its obligations,” and that it will “alter or deviate from standard practices in order to impede efforts that verify that Iran is complying with those obligations and commitments.”
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Understand: It is indisputable that (a) the administration has not provided the Iran–IAEA side deal; (b) the IAEA is not up to the inspection task; (c) the Iranian regime is drastically restricting the IAEA’s access to suspect sites, even to the point of insisting that it will “self-inspect” by providing its own site samples rather than permitting IAEA physical seizures, a point on which Obama and the IAEA have remarkably acquiesced; and (d) Obama claims the Iranian regime can be trusted despite his deal’s laughably inadequate verification standards. To the contrary, the act dictates that (a) the administration must provide the side deal, (b) the IAEA must be capable of doing credible inspections; (c) the IAEA must be permitted by Iran to do credible inspections; and (d) the Iranian regime must not be trusted and will presumptively cheat.
Do you sense something of a disconnect between what Obama has proposed and what the act requires?
This is not a close call. To make it even simpler, even if the side deal were not critical to any assessment of the overall agreement (and it plainly is), the act explicitly required the administration to transmit it to Congress by July 19 (five days after the deal was reached). The side deal has never been provided. The administration’s failure to comply with the Corker legislation’s conditions means Congress’s reciprocal obligation to review the agreement and enable Obama to lift sanctions — in the teeth of massive majority opposition — has never been triggered.
It is not enough to say that Congress has no obligation to proceed with the Corker review process. It would, under the act, be impermissible for Congress to do so. This, by the way, is not just a straightforward legal fact; it is a matter of integrity.
Over deep opposition from the base voters who gave the GOP control of both houses of Congress, Republican leaders insisted on passing the anti-constitutional, Obama-backed Corker legislation on the (absurd) rationale that only by doing so could they make sure that the full agreement, every bit of it, would be revealed to Congress and the American people. This was a meager objective, since revelation of a disastrous deal is useless if, to get it, Congress had to forfeit its power to reject the deal. But regardless of where one stood in the intramural debate over whether achieving full exposure of Obama’s Iran deal was worth surrendering Congress’s constitutional advantages, the blunt fact is that full exposure has not been achieved.
The mandate that the Iran deal must be revealed in its entirety represents both a solemn political commitment by Republicans and an explicit legal requirement of the act. Obama has failed to comply with that mandate. Therefore, the Corker review process must not go forward.
There are many more things to be said about this. For example, it remains true, as I have previously asserted, that the Corker process should be deemed null and void because Obama’s indefensible deal is fundamentally different from the narrow nuclear-weapons pact that the Corker legislation assumed. Obama’s deal purports to relieve our enemies of restrictions against their promotion of terrorism and acquisition of ballistic missiles and conventional weapons. The Act prohibits this. Under its provisions, the Corker review process may be applied only to an agreement restricted to Iran’s nuclear program. See subsection (d)(7): “United States sanctions on Iran for terrorism, human rights abuses, and ballistic missiles will remain in place under an agreement.” (As we’ve seen, “agreement” is defined in subsection (h)(1) to relate only to “the nuclear program of Iran.”)
There is, moreover, a solid case, posited by Harold Furchtgott-Roth in Forbes, that Obama’s Iran deal effectively amends the Nuclear Non-Proliferation Treaty (NPT) by dramatically altering Iran’s obligations under it. Because the Constitution makes treaties the law of the land, the legal equivalent of congressional statutes, a treaty can be superseded only by another treaty or an act of Congress. An executive agreement with minority congressional assent is insufficient.
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The Corker review process, even if it were to go forward in contravention of the act’s terms, would apply only to the sanctions. It would not address the separate and profound question of whether Iran remains bound by its legal NPT obligations. That is a question the United States must resolve under our constitutional law, not based on bloviating by Obama, Kerry, or Iran’s foreign minister about purported dictates of international law.
#share#Still, despite all the strong arguments to be made against the Iran deal, we must be realistic about what can be achieved here.
As I have been arguing for weeks, Congress must scrap the Corker process and treat Obama’s Iran deal as either a treaty or proposed legislation. Consequently, I could not agree more with my friend Jim Geraghty that the Senate should regard the deal as a treaty and vote it down decisively — as I’ve pointed out, senators don’t need the president’s cooperation to do this; their authority to review international agreements as treaties comes from the Constitution, not from Obama.
Yet I differ slightly with Jim on why it is important to do this. It is not for the purpose of influencing judicial consideration of the Iran deal. The courts are unlikely to referee a dispute regarding the relative power of the political branches to bind the nation to international agreements — even though the judges may have to get involved to the extent the sanctions affect the rights of private parties.
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No, the reason to reject the Iran deal as a treaty is to lay the groundwork for the next president to abandon the deal. That involves putting other countries on notice, immediately, that the U.S. statutory sanctions are still in effect; that Obama is powerless to lift them permanently; that the next president is likely to enforce them; and that countries, businesses, and individuals that rely on Obama’s mere executive agreement as a rationale for resuming commerce with Tehran do so at their peril.
It is crucial to understand the state of play here. First, there is no stopping Obama from making an executive agreement with Iran, as long as the agreement does not violate the Constitution, federal statutes, and ratified treaties. He is the president, and he gets to conduct foreign policy as long as that is the case — but only while that is the case. Unlike treaties and statutes, Obama’s executive agreements do not bind our nation once he is gone. Second, because Congress never anticipated an Iran-friendly president like Obama, it provided presidents with authority to waive the existing sanctions — although not to lift them permanently. For now, this authority is Obama’s and he is entitled to use it, however reckless this may be.
Thus, Congress cannot “defeat” Obama’s Iran deal in the sense of eradicating it. As long as he is president, Obama can try to carry out his executive agreement even if Congress refuses to give it the force of binding law.
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Congress can, nevertheless, delegitimize the deal by illustrating in a powerful way that it is merely an executive agreement between Iran and Obama. The sovereign — the American people — remains overwhelmingly opposed. The party to which the people have given a majority in Congress must make clear that the Iran deal is not the law of the land, and that the deal will be renounced the minute a new Republican president takes office.
To do this, a preliminary step must be taken: Congress must undo the Corker legislation’s damage.
The Corker legislation was a lapse in judgment because it gave congressional assent to the permanent lifting of U.S. sanctions absent a veto-proof majority for maintaining them — which Republicans should have known was unattainable. The fallout of this lapse could be significant if the Corker review process is allowed to proceed.
From a legal standpoint, by going forward with the review process despite Obama’s failure to comply with the Corker legislation’s terms, Congress could be seen as forgiving Obama’s default. If lawmakers then go ahead with the vote on the Iran deal that the Republican opposition must inevitably lose because of Corker’s “minority wins” process, there would be a very reasonable legal argument that the sanctions have been repealed.
Republicans cannot let that happen. If the sanctions were deemed repealed, then the next president’s position would be dramatically weakened: Not only would the sanctions have to be reinstated by new law; it would be much more difficult politically for the next president to renounce Obama’s deal. Other countries would forcefully contend that the U.S. double-crossed them — that they lifted their sanctions, and commenced commerce with Iran, in reliance on Congress’s Corker-skewed “approval” of Obama’s deal.
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As I have demonstrated above, it would be a violation of law to proceed with the Corker review process because (a) the administration has not complied with the Corker legislation’s mandate that the entire Iran deal be supplied to Congress by July 19 and (b) the Corker review process is explicitly limited to Iran’s nuclear program, while Obama’s deal, by contrast, goes far beyond nukes, eliminating anti-terrorism, anti–ballistic missile, and anti-weapons restrictions that the Corker legislation requires to be kept in place.
So the preliminary step that must be taken is a resolution by Congress stating that (a) the Corker review process cannot proceed because the Obama administration has failed to comply with the Corker legislation’s express conditions; (b) therefore, under the legislation’s terms, Congress cannot proceed with an up-or-down vote on the Iran deal; and (c) the sanctions remain in effect, even if they are temporarily dormant because Obama won’t enforce them.
Yes, Obama would veto the resolution (even though it is undeniable that he has not complied). But his veto would be irrelevant. Congress’s resolution explaining why no vote was taken on the Iran deal, which would pass overwhelmingly, would stand as the definitive statement to Iran and the rest of the world of why Congress has not attempted to pass a resolution of disapproval under the Corker process: It is not a matter of not having the votes; it is a matter of the president’s default. The Senate could then immediately follow that up by deeming Obama’s Iran deal as a treaty and voting it down by a wide margin.
Of course Obama would go characteristically demagogic in response. He would pretend that his default never happened and insist that Congress’s failure to enact a resolution of disapproval under the Corker framework means the sanctions are lifted forever. He would declaim that, under international law, the Security Council resolution he orchestrated before going to Congress binds our country to his Iran deal — to his empowerment of our enemies — even if our own Constitution has been flouted.
Let him rant and rave. He will only be president for another 16 months. This is now about what happens when he is gone. Obama’s arrogance and overreach have given Republicans a golden opportunity to correct their Corker misstep. They can still preserve the sanctions, preserve the NPT, and clarify that Obama’s green light to Iran on terrorism promotion and military build-up will not be worth the paper it is written on once he vacates the Oval Office.
By doing so, the GOP would not only reclaim the mantle of national security leadership; they would tee the 2016 election up as a referendum on the deeply unpopular Iran deal: Whom should the nation trust, Republicans who would sweep the Iran deal aside or Democrats who favor giving material support to an incorrigible enemy braying “Death to America”?
Even today’s breed of Republican ought to see the sense in that.
Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.