Constitution Check: Is Congress limited to a “yes” or “no” on the Iran nuclear deal?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, says Congress could have a significant oversight role in an Iran deal if it is actually put into effect after months of debate.

THE STATEMENTS AT ISSUE:

“The President shall, within 10 calendar days of receiving credible and accurate information relating to a potentially significant breach or compliance incident by Iran with respect to [the new nuclear weapons] agreement, submit such information to the appropriate congressional committees and leadership.  Not later than 30 calendar days after submitting [such] information, the President shall make a determination whether, if there is such a breach, Iran has cured such a breach….Not later than 180 calendar days after entering into agreement, and not less than every 180 days thereafter, the President shall submit….a report on Iran’s nuclear program and the compliance with the agreement during the period covered by the report.”

 – One of the many specific provisions that Congress included – and President Obama accepted – in the Iran Nuclear Agreement Review Act of 2015 specifying what the Executive Branch must do if that agreement survives review by Congress.

WE CHECKED THE CONTITUTION, AND…

In the constitutional arrangements for the national legislative and executive branches as they work together – or in conflict -- on national policy, each of those branches has a special advantage over the other.

Congress has the immense power of oversight, or, in other words, the ability to demand and get information for government agencies, as a strong attribute of its always-available power to write new laws to control the government.  And the President, with help from his aides in the Executive Branch, has enormous flexibility in how they use their powers to implement the specifics of policy, including the negotiation of deals with other nations without keeping Congress in the know or asking its permission and with the power of veto if Congress steps in.

These competitive exercises of power will now play out anew as Congress launches into a review of the new agreement that the United States and other governments have worked out with the nation of Iran in an attempt to limit that country’s potential development of nuclear weaponry.  Congress earlier this year wrote rules to govern what would happen if such a deal actually were reached, and President Obama signed those rules into law in late May.   With the completion this week of a deal by negotiators in Vienna, those rules will start going into effect.

On the surface of those requirements, it does appear that Congress has given itself only three stark alternatives: it can approve a measure saying it approves what is in the deal, it can approve an alternative measure saying it disapproves (without any power to alter the deal’s terms), and it can opt to do nothing.  Congress does not have the power to keep the deal from going into effect while it considers what to do about it.

But any disapproval vote by Congress would be subject to veto by President Obama, and it would take a supermajority of a two-thirds vote in each house of Congress to override that veto and scuttle the deal.

Given the political realities and the array of Republican and Democratic votes in the House and Senate, it is now popularly assumed that there is little realistic chance that the deal will be cast aside.

If that is all that this already-started battle in Washington were about, Congress would be in store for serious disappointment, as it wound up on the losing end.

But there is more, much more, in the law that Congress actually passed and that gained the signature – apparently somewhat reluctant approval – of the President.  (Earlier, the President appeared to have believed that, if an agreement were reached in Vienna, there would be no review by Congress, but he relented and accepted what Congress sent to him.)

Congress, of course, will first go through the speeded-up review process that it has arranged for itself.  But, assuming for the moment that it is unable to stop the deal altogether, a very sizable role will unfold for it as the deal is actually put into effect.  And that role is built upon a wide array of demands for information from the President on how the deal is actually fairing, in real-world terms.

Congress has done this before, in seeking to use oversight to keep a check on the President’s power to send American military forces into war or war-like operations overseas.  Every President has chafed under the restrictions of the War Powers Act of 1973, but every President since has had to live with that Act and has had to obey the reporting requirements, and that inhibits the flexibility of military options quite significantly.

With the new Iran nuclear deal, the long list of Congress’s demands for information add up to a clear manifestation of skepticism in Congress about Iran keeping its side of the nuclear bargain.

Consider just some of those demands:

First, even in sending the agreement to Congress to start its review, the Secretary of State must give his word that the safeguards supposedly written into the deal will not fail to keep Iran from developing a nuclear bomb, and that the planned inspection regime will actually be able to verify Iran’s compliance.

Second, the President is required to provide a sequential series of reports to Congress when he has reason to believe that Iran is reneging on the deal.  Those reports must be filed within 10 days after the discovery of such a breach, within 30 days after submitting such a report a new report must be sent on the nature of the breach, and within six months after the agreement is signed and every six months after that on how Iran is complying, or not.

Third, if there is no actual detection of a breach of the deal, the President must send Congress a report every 90 days that he has reason to believe there has been none.

Fourth, if the President fails to submit one of those 90-day reports on Iran’s compliance, or if the President does submit a report about a breach, Congress can then move quickly to pass a new law putting back into effect the economic sanctions that are to be lifted from Iran under the deal.

And, if Congress wants more information after it gets one of these reports, it can always summon Executive Branch officials to Capitol Hill for penetrating and potentially embarrassing “oversight” hearings.

Taken together, that is a pervasive regime of monitoring of how the deal operates, or falters, in coming years, if Congress fails to end the deal altogether in the review now starting.  It is a classic form of constitutional checks-and-balances, and may well keep the President from having an entirely free hand in executing the deal.