Readers will recall it was Cotton who led 47 Senate Republicans in writing a letter to the mullahs in Tehran reminding them that it is the Senate, not the president, who approves treaties.
The letter warned, “[w]e will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as 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.”
It staked out an incredibly strong position. Without Congress’ approval, the Iran nuclear deal would not be worth the paper it was printed on. The next president could just say, thanks, but no thanks, and abolish it.
So, what did Congress do?
It authorized the Iran deal, which critics say will spark a nuclear arms race in the Middle East and risk war, via H.R. 1191 — before anyone had even read it. Don’t believe it?
The law provides that “any measure of statutory sanctions relief by the United States pursuant to an agreement [with Iran]… may be taken, consistent with existing statutory requirements for such action, if, following the period for review provided… there is not enacted any such joint resolution” by Congress disapproving of the deal.
The period of review was 60 days. That means, come Sept. 17, the Iran nuclear deal will be sanctified by law and the next president will more or less be stuck with it.
That is, unless the process it was approved under happened to be unconstitutional, and the Iran nuclear deal was actually a treaty requiring a two-thirds affirmative majority of senators present in order to be ratified.
So, it may be a bit of fortune that Senate Democrats on Sept. 10 decided to block a resolution of disapproval of the deal, denying cloture on a motion to proceed. Why?
Because, with the Sept. 17 deadline looming, that means there may now only be one way to stop the Iran nuclear deal.
Now that the deal has been brought to the floor under the procedure provided for in H.R. 1191, a senator could attempt to raise a constitutional point of order that the Iran nuclear deal is being brought up in violation of Article II, Section 2 of the Constitution, which requires that treaties only be ratified by a two-thirds majority of senators present.
It would take a simple majority to sustain the point of order. The Senate could then vote to consider the nuke deal as a treaty, in which case, under Senate rules, it would be referred to the Foreign Relations Committee. The treaty could then be sent to the Senate floor and defeated under the proper procedure. This part is important. Even if Senate Democrats were to filibuster the motion to proceed to the treaty, that would in effect defeat the treaty.
The problem is a similar amendment was attempted by Sen. Ron Johnson (R-Wis.) to H.R. 1191 but failed with only 39 senators voting yea. That would have in no uncertain terms made the Iran deal a treaty: “Notwithstanding any other provision of law, any agreement reached by the President with Iran relating to the nuclear program of Iran is deemed to be a treaty that is subject to the requirements of article II, section 2, clause 2 of the Constitution of the United States requiring that the treaty is subject to the advice and consent of the Senate, with two-thirds of Senators concurring.”
12 Senate Republicans voted against that amendment that would have stopped the Iran deal: Lamar Alexander (R-Tenn.), Kelly Ayotte (R-N.H.), Shelley Moore Capito (R-W.Va.), Dan Coats (R-Ind.), Thad Cochran (R-Miss.), Bob Corker (R-Tenn.), Joni Ernst (R-Iowa), Jeff Flake (R-Ariz.), Orrin Hatch (R-Utah), Johnny Isakson (R-Ga.), John McCain (R-Ariz.), and David Perdue (R-Ga.).
These senators are the reason why it is now impossible to block the Iran deal and who besides Obama bear the most responsibility for its enactment. If these members just leave things the way they are right now, the Iran deal is a done deal. And they know it.
Sen. McCain just days later said it was a treaty, after all, in response to a question at the Anti-Defamation League’s (ADL) National Leadership Summit: “Anything of this magnitude, any agreement of this magnitude is clearly — walks like a duck, and quacks like a duck — it’s a treaty, and yet the administration chose to treat it as an agreement in order to try to avoid full-blown debate for ratification, which would require a positive vote.”
Actually, the Senate, not Obama, voted not to consider it as a treaty. McCain had his chance.
So, now is a time for choosing. If the Senate has had a change of heart and now truly believes that the Iran nuclear deal is bad, endangers national security, increases the risk of war, and is in fact a treaty there is only one way left to stop it.
There are 39 Senate Republicans who believe the Iran deal is a treaty, including Sen. Johnson, who offered the original amendment, and Sen. Cotton, the only one who voted no in the end. Even Senate Majority Leader Mitch McConnell (R-Ky.) voted in favor of the Johnson amendment. The flawed, unconstitutional process under the Corker bill has already failed to even allow an up or down vote disapproving of the deal, and it must be overturned. There is still time to consider the deal for what it is, a treaty, and attempt to defeat it.
If these senators really want to stop the deal, one of them has to raise the constitutional point of order or attempt a similar maneuver to overturn the current procedure and consider the Iran deal as a treaty — before it is still too late.
This is a guest post by Robert Romano senior editor of Americans for Limited Government.