Constitution Daily

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Veto showdown on tap for Congress after Iran nuclear deal

July 15, 2015 by Scott Bomboy


With a deal in place between Iran, the United States and five other nations over Iran’s nuclear program, the debate here will shift to how Congress and President Barack Obama handle the agreement on legislative grounds.

Ayatollah Khamenei

In May, President Obama agreed to sign an act that would allow Congress to have some say in any Iranian arms-control deal. But because the Iran deal is in the form of an executive agreement, Congress will have a limited say unless it can override a possible presidential veto.

Traditionally, the President has the power to conduct executive agreements with other countries without congressional approval. These agreements differ from treaties.

Article II of the Constitution allows for the President “to have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The House of Representatives doesn’t have a direct role in this constitutional treaty process.

The Congressional Research Service explains that “treaties generally require parties to exchange or deposit instruments of ratification” that “may more narrowly refer to a particular subcategory of binding international agreements.”

Executive agreements also represent international agreements, negotiated by the executive branch, but they aren’t submitted to the Senate for its advice and consent. Their use dates back to the time of George Washington.

Since World War II, most international agreements negotiated by the United States are executive agreements, and not treaties. The CRS said that as 2014, the United States had entered into 18,500 executive agreements and 1,100 treaties since 1789.

Executive agreements are not specifically defined in the Constitution, but they have been recognized through customs and the courts.

For example, in 2003, Supreme Court Justice David Souter said in American Insurance Association v. Garamendi that “our cases have recognized that the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”

The nuclear deal with Iran, and its impact on Israel, has led to a public debate about presidential powers, foreign policy and Congress.

In March 2015, 47 Republican U.S. Senators issued a public letter reminding Iran that “any agreement regarding your nuclear-weapons program that is not approved by the Congress [is] nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time."

The law approved by Congress in May and signed by President Obama is called The Iran Nuclear Agreement Review Act of 2015. It spells out that Congress has 60 days to review any Iran deal it receives after July 10. 2015. President Obama can’t waive sanctions against Iran during this period, and during any period that Congress has issued an act disapproving the Iran agreement and any subsequent veto period.

The act reinforces the power of Congress to pass a law disapproving of the Iran pact by a simple majority vote of the House and Senate. This resolution of disapproval would bar President Obama from waiving sanctions against Iran. But since this is legislation, President Obama can veto the resolution, forcing the House and the Senate to override the veto by a two-thirds majority in each chamber.

In other words, a considerable number of Democrats would need to break away from President Obama on this issue.

On Tuesday, President Obama made it clear that he would use his veto power to preserve the landmark deal. “It’s important that the American people and members of Congress get a full opportunity to review the deal,” Obama said. However, “I will veto any legislation that prevents the full implementation of this deal.”

If Congress takes the full 60-day period to review the Iran deal, a vote on sanctions may not happen until mid-September, with a resolution of the issue later that month.

Representative Ed Royce, a Republican from California, told the New York Times on Tuesday that he thought the Democrats had a veto-protection strategy in place. “I don’t see them convincing skeptical Democrats this is a good agreement. I see them pressuring Democrats to go along,” Royce said.

However, the Obama administration has indicated that it will seek bipartisan support in Congress for the executive agreement.

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