What is a treaty?
It is an agreement between foreign nations.
And it must be ratified by two-thirds of senators present under Article II, Section 2 of the Constitution.
But, Congress also has broad power to regulate trade with foreign nations in Article I, Section 8 of the Constitution, and it can enact tariffs and sanctions against other nations. And by a vote of Congress, remove them.
So, what if the U.S. and another nation agree to remove sanctions that had been imposed, in mutual concert with adjoining, legally binding action by the other nation-state actor, as in the case of the Iran nuclear deal?
Does such a reciprocal agreement require a simple majority of both houses, or a two-thirds supermajority in the Senate to ratify?
Well, for more than a century, it has been with simple majority votes of both houses of Congress that such agreements have been enacted. A 2013 Congressional Research Service report dates the practice as far back as 1890 in Section 3 of the Tariff Act, granting the president authority to suspend duty-free treatment on certain goods.
Trade deals under the Trade Act of 1974 fall into this category.
The Iran sanctions were enacted too were originally enacted by simple majorities in Congress.
And we can argue until we’re blue in the face about the Iran deal and that it rightly should have been submitted as a treaty.
But the fact is, Congress authorized the removal of the sanctions against Iran by simple majorities in H.R. 1191. Then, when President Barack Obama submitted the agreement to Congress, and the Senate failed to take it up as a treaty, once the 60-day window stipulated by the law passed, on Sept. 17 the agreement went into effect.
Like it or not, now Obama has broad authority to remove the sanctions over the coming weeks and months. Congress should have waited to see the agreement, but it acted instead by giving Obama what he wanted.
So, that’s it, right? The Iran deal is a done deal.
Still, the Iran agreement does appear to amend Nuclear Non-Proliferation Treaty (NPT) obligations, as noted by former U.S. Foreign Service Officer Eric Terzuolo at the National Interest magazine.
Yes, the sanctions were enacted by Congress, but does the agreement go further than that?
Writes Terzuolo: “The formulation in the JCPOA (Preamble, iii) that Iran ‘reaffirms that under no circumstances will [it] ever seek, develop, or acquire any nuclear weapons’ also concerns me. As a state party to the NPT, Iran already was bound to a more detailed and comprehensive commitment, including, for example, a ban on seeking or receiving ‘assistance in the manufacture of nuclear weapons’ (see NPT Art. II). Why not simply use the NPT language? Is the JCPOA language some sort of replacement for the NPT commitment? [emphasis added]”
Terzuolo adds, “A later generic reference to the NPT as ‘the cornerstone’ of nonproliferation (Preamble, vii) does not entirely allay my concerns. The implicit message, at least for nonproliferation obsessives, is that small groups of interested states can reformulate commitments adopted by the overwhelming majority of world nations, and with decades-long standing.”
But not so fast. Treaties under the Constitution consistent with articles of the Constitution are the supreme law of the land under Article VI, and cannot be altered by mere statute.
Therefore, Obama and Congress cannot relieve Iran of its NPT obligations in a separate agreement, except in the form of a treaty, and only one which invokes other interested parties who signed that treaty. Article VIII of the NPT provides for amendments to the agreement, stating, “Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency.”
But no such vote has taken place by a majority of NPT parties. The Iran deal replaces the NPT, but someone forgot to tell Obama and Congress in their haste to cement a legacy. That is, of eroding the global non-proliferation regime that has been in place since 1968, not to mention the supremacy and treaty clauses of the Constitution.
This isn’t what the American people signed up for when they gave Republicans a majority in the U.S. Senate. And we can argue over the constitutionality of so-called executive agreements and congressional-executive agreements — later.
The fact is, never has such an agreement been used to alter a duly enacted treaty, let alone the one that is supposed to protect the world from nuclear annihilation. This is a slippery slope. Should Iran decide violate the agreement, and its NPT obligations, by developing nuclear weapons, the consequences to non-proliferation and national security could be irreversible.
The question is what, if anything, Congress, and specifically, the Senate intends to do about it.
This is a guest post by Robert Romano senior editor of Americans for Limited Government.