The constitutional obligation of Congress to shape American foreign policy

A deal with Iran will trigger nuclear proliferation in the Sunni world, exponentially increasing the possibility of nuclear material ending up in the hands of a Sunni non-state actor.

United States Capitol building in Washington, DC. (photo credit: REUTERS)
United States Capitol building in Washington, DC.
(photo credit: REUTERS)
“The President takes the lead in foreign policy, but Congress has a central role to play...The ideal is not total cooperation... but a creative tension out of which should come policies that better serve the American national interest.”
– Lee Hamilton, vice chair of the 9/11 Commission
The framers of the American Constitution, in their foresight, created checks and balances among the three branches of the American government. The Constitution provides Congress with the authority to help shape foreign policy.
While it is the president who is constitutionally authorized to make treaties, “it must be with the Advice and Consent of the Senate.” (Article II, Section 2) This brings us to the constitutional fight between US President Barack Obama and the Congress over the president’s ability to sign a multi-party treaty with Iran without Congressional input or approval.
This week, a bipartisan group of Democratic and Republican Senators introduced the “Iran Nuclear Agreement Review Act of 2015,” sponsored by the Republican chairman of the Senate Foreign Relations Committee, Bob Corker, and its Democratic ranking member, Bob Menendez. According to Bloomberg View, this legislation “would require President Obama to submit any nuclear deal with Iran to Congress for a 60-day review period.” Senator Corker said, “Before sanctions begin to be unraveled, this gives us our rightful role to weigh in... if a deal is reached.”
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According to the Constitution, Congress has the power of the purse. Since Congress previously passed sanctions legislation against Iran, it is obligated to weigh in if the president unilaterally waives or withdraws sanctions by executive order. However, the White House doesn’t see it that way. According to Deputy Secretary of State Anthony Blinken, “The White House doesn’t view an agreement with Iran as a treaty that requires Senate approval, but as a matter of ‘executive prerogative.’” It is both disappointing and shocking that a former constitutional law professor (President Obama) thinks he can avoid the constitutional checks and balances on the branches of government on a technicality, especially when it involves one of the most significant foreign policy issues of our time.
There is certainly precedent for Senator Corker’s and Senator Menendez’s legislation. The history of Congress defying the president on foreign policy is legend. Congress refused to approve the Treaty of Versailles in 1919, it defeated the Comprehensive Test Ban Treaty of 1999, and Congress has refused to pass presidential initiatives like the Law of the Sea. Congress has defied both Democratic and Republican presidents on foreign policy numerous times.
On Sunday, Secretary of State Kerry insisted “the Obama administration’s record on Iran entitled the US to ‘the benefit of the doubt’ as negotiators work toward a long-term nuclear deal.”
Let’s check that record:
• President Obama claimed to have “halted” the Iranian nuclear program. That statement warranted three Pinocchio’s for “Significant Factual Errors and/or Obvious Contradictions,” according to The Washington Post Fact Checker.
• Regarding the Joint Plan of Action (interim agreement signed in November 2013), Secretary of State Kerry said, “I don’t know anybody who looks at the interim agreement and doesn’t say, wow, this has really worked.” He also said, “Well guess what? Every aspect of the interim agreement has been complied with.”
Well guess what? The nonpartisan Institute for Science and International Security said that Iran is testing advanced centrifuges in violation of the JPOA. The UN Security Council in December said that Iran is purchasing illicit materials for its Arak plutonium reactor in violation of the JPOA.
The IAEA this month said that Iran is stonewalling on the “possible military dimensions” of the Iranian nuclear program. The Obama administration has ignored Iran’s selling more oil than permitted under the treaty. Iran tested advanced IR-8m centrifuges, 16 times more powerful than IR-2m centrifuges, meaning Iran now needs only weeks to convert “safe” low-grade (five percent enriched) uranium into “weapons grade” (90%) uranium. This is a violation of the JPOA.
Iran has sufficiently increased stockpiles of low-enriched uranium since the signing of the interim agreement to enable it to build two more nuclear bombs – and, believe it or not, this is not in violation of the treaty. (The treaty was a disaster as it contradicted six UN Security Council Resolutions demanding Iran “halt” enrichment.)
So why is this treaty vital to America foreign policy interests? A deal with Iran will trigger nuclear proliferation in the Sunni world, exponentially increasing the possibility of nuclear material ending up in the hands of a Sunni non-state actor. Furthermore, Iranian hegemony will almost certainly lead to tensions between the Sunni and Shi’ite world.
Such regional destabilization could impact fossil fuel deliveries, potentially leading to a worldwide recession.
Such destabilization also dramatically increases the chances that American boots on the ground will be needed to stabilize the situation, much like during the Gulf War.
This is why Congress must weigh in on any deal with Iran. Iran is a profound American foreign policy issue.
The author is the director of MEPIN (Middle East Political and Information Network), a Middle East research analysis read by members of Congress, their foreign policy advisors, members of the Knesset, journalists and organizational leaders. He regularly briefs members of Congress on issues related to the Middle East.