Israel Matzav

A bridge too far

Walter Russell Mead rips the President's attempt to exclude Congress from any say in  approving the Iranian nuclear deal.

Dissing Congress is a risky move for American presidents. There have been widespread reports that many Democrats on Capitol Hill would like to support the President’s Iran policy, but are worried about the political fallout among voters back home. In the end, many of these waverers would probably support the President on the Iran deal in a straight up Congressional vote, but if the President does an end run to the Security Council, the waverers could—and many will—oppose him on procedural grounds. Both the Senate and the House are jealous of their Constitutional prerogatives, and voting to uphold the powers of Congress is a much easier vote for Democrats than voting against the President on an important foreign policy issue.

This is not likely to end well. President Obama was stretching both his Constitutional powers and his political mandate when he decided to short circuit the treaty process for one of the most important decisions that American foreign policy has taken in many years. There is precious little doubt that the Founders would have considered this a threat to the system of checks and balances they wrote into the Constitution. In modern times, presidential authority has expanded, largely because American foreign relations have become so complex and the world moves so quickly that it would be impractical to subject every significant agreement between the United States and other countries to the treaty process. But given the length of this negotiation process and the enormous stakes involved, the Iran agreement really ought to have been framed as a treaty. The President, to be fair, knew very well that he could never get a two thirds vote in the Senate for this agreement, and, believing as he does that this step is necessary to the safety of the United States, he framed the deal as an executive agreement to avoid exactly the scrutiny and vote that the Constitution requires.

Congress grudgingly went along with that, passing the Corker-Menendez law as a way of regularizing the President’s irregular choice. This tilted the playing field toward the President, as opponents would need a two thirds majority in both houses (instead of only a one third majority in the Senate) to block the deal for good.

That the President is blowing off this concession by Congress is a serious matter—more serious perhaps than the White House realizes. He is really requiring Congress to accept a permanent and significant diminution in its power for the sake of an Iran deal that few members view with enthusiasm. The precedent he is setting changes the Constitution, essentially abrogating the treaty power of Congress any time a President can get a Security Council resolution to incorporate the terms of an executive agreement.

Regardless of the merits or demerits of the Iran deal, this is the wrong way to proceed. If President Obama chooses to go this route, he is provoking a constitutional crisis in order to get sanctions relief to Iran sixty days faster than would otherwise happen. The Congressional Democrats calling on President Obama to refrain from this mischievous and foolhardy course are quite right; this is a bridge too far.

Why would Obama do this? The only reason I can think of is that he is afraid of how clear it could become within 60 days that this is a bad deal, and therefore he's taking the chance that the same Supreme Court majority that slashed Congress' powers in the Zivotofsky case and upheld his overreaching on Obamacare will also let him get away with this. Even impeachment would be too late to prevent the deal from standing with a binding UN Security Council resolution.

What could go wrong?

Labels: Iran sanctions regime, Iranian nuclear threat, Menachem Binyamin Zivotofsky, Obamacare, P 5+1, United Nations Security Council, United States Congress, US Supreme Court

posted by Carl in Jerusalem @ 1:40 PM