By: Harrison DuBosar

On Tuesday July 14th President Obama announced that an accord “to significantly limit Tehran’s nuclear ability for more than a decade” was reached “in return for lifting international oil and financial sanctions.”[1]  The White House reinforced its optimism upon publication of “The Iran Nuclear Deal: What You Need to Know About the JCPOA [Joint Comprehensive Plan of Action].” The White House proclaimed in its report that “After 20 months of intensive negotiations, the U.S. and our international partners have reached an historic deal that will verifiably prevent I ran from obtaining a nuclear weapon.”[2]  The article states that the President anticipated an issue with Congress and declared that he “will veto any legislation that prevents the successful implementation of this deal.”[3] This begs the question, what is the problem?

Article II, section 2 of the Constitution states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”[4] Upon making the aforementioned statement, President Obama made it clear he anticipated some form of resistance from Congress.  At issue here is the order in which the actions were taken.  First, the President signed on to a largely impactful treaty.  Then, the President stated that the legislature would not be enamored and may even attempt to halt his efforts. At the heart of this debate is whether President Obama was required to seek some form of Senatorial or Congressional approval prior to signing on.

If one examines this issue by looking at the Constitution as the only source, it would appear that one could interpret the constitution to require the President to seek advice first from the Senate, and then ask consent.  Early case law supports this strict interpretation.  In 1892, the Court held that when the Senate did not advise or consent to a treaty, that treaty has no legal force.[5]  Since this treaty involves the lifting of sanctions, one might even turn to a more recent decision where the Court held that while the President has many means at his disposal to enforce self-made international obligations, transforming this international obligation arising from non self-executing treaty into domestic law falls to Congress.[6]

Conversely, Courts have held that while the President is constitutionally assigned to seek this consent from the Senate, that is not going to be the case in certain situations.  “The President also has power to negotiate and conclude agreements with foreign nations without complying with the formalities required by Art. II. . . even though such agreements are not treaties under the treaty clause of the Constitution, they may in appropriate circumstances have an effect similar to treaties in some areas of domestic law.”[7]  If the President follows this logic and the Supreme Court establishes this case law as precedent, the President would have successfully legally circumvented the Senate and Congressional approval.

It is important to note this treaty, like all others, is subject to modification by any subsequent act of Congress.[8]  Congress has the power to alter or renounce the treaty if it so chooses.  Congress still has the time to introduce a resolution to modify the President’s deal.  This will be subject to an almost assured veto, however the political damage would be done; putting the President again at odds with the elected officials of the people.  Otherwise, the Senate could take up a vote of ratification.  According to the Constitution, that would require a two-thirds vote.[9]  It does not require the President to make the presentation on his position. If voted down, the President may not have the authority to justify ratification. Here, “it is likely that the president would refuse to accept the result of Congress’ action, since the concurrent resolution would have no force of law… he may simply go about his business doing everything under the law he can to ease sanctions on Iran- and potentially more than that.”[10]

Right now, it is almost a sure thing that this controversy will resume due to the evolving nature of this contentious 2016 Presidential election.  Whether or not the President legally circumvented Congressional approval is a question that candidates will be forced to address at some point.  While the Constitution offers one statement on the matter, there does not seem to be any clarity on this matter, and probably will not be until it is potentially litigated.


[1] Michael R. Gordon & David E. Sanger, Deal Reached on Iran Nuclear Program; Limits on Fuel Would Lessen With Time, N.Y. Times, July 14, 2015, http://www.nytimes.com /2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html?_r=0.

[2] Report from the White House, The Iran Nuclear Deal: What You Need to Know About the JCPOA, WhiteHouse.gov, https://www.whitehouse.gov/sites/default/ files/docs/jcpoa_what_you_need_to_know.pdf (last visited Feb. 26, 2016).

[3] Gordon & Sanger

[4] U.S. Const. amend. II, § 2.

[5] In re Sutherland, 53 F. 551 (D.C.Or. 1892).

[6] Medellin v. Texas, 128 U.S. 1346 (2008).

[7] Watson v. United States, 592 F. Supp. 701, 702 (W.D. Wash. 1983).

[8] Moser v. United States, 341 U.S. 41 (1951).

[9] Avero Belgium Ins. v. Am. Airlines, Inc., 423 F.3d 73, 77 (2d Cir. 2005).

[10] Christopher Hull, Nuke the Deal, U.S. News, July 22, 2015, http://www.usnews.com/opinion/blogs/world-report/2015/07/22/how-congress-can-still-kill-obamas-iran-nuclear-deal.


Edited By William Tipton

Advertisements