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Kerry, Cotton Spar Over Iran

Secretary of State John Kerry and Sen. Tom Cotton each claimed the other distorted the facts regarding the role of Congress in a possible international deal on Iran’s nuclear program:

  • Kerry accused Cotton of putting out “false information” that Congress can “change an executive agreement” now being negotiated by the Obama administration. Kerry is correct that Congress cannot change an executive agreement, but it can nullify parts of the deal through legislation if it has enough votes.
  • Cotton claimed the secretary said future Congresses and presidents “can’t change a mere executive agreement.” But that’s not what Kerry said. He said the administration is proposing a nonbinding executive agreement, which does not need congressional approval but can be changed by a future president.

Cotton, a freshman senator from Arkansas, finds himself at the center of the Iran debate after he penned an open letter to “the Leaders of the Islamic Republic of Iran” — signed by 46 Republican colleagues — that warned any deal signed by Obama could be revoked by the next president and that future Congresses “could modify the terms of the agreement at any time.” Kerry was asked about the letter during an appearance on CBS’ “Face the Nation” on March 15.

Kerry said the letter was “not only contrary to the Constitution with respect to the executive’s right to negotiate, but it is incorrect, because they cannot change an executive agreement. So, it’s false information and directly calculated to interfere. … Congress does not have the right to change an executive agreement.”

Later in the show, Cotton responded to Kerry’s remarks, saying, “In our constitutional system, while the president negotiates deals, Congress has to approve them for them to be lasting and binding. And I have to say, I’m surprised by the secretary’s comments this morning, because just a few days ago, he testified before the Senate to say that any deal would not be legally binding. And now he says that future Congresses can’t change a mere executive agreement if we disagree with them or if a future president disagrees with them? That’s not the way our constitutional system works. … And I don’t see how anyone can dispute that if a deal is reached with Iran that is not approved by Congress, then future Congresses and future presidents don’t have to accept it in our constitutional system.”

Who’s right? Although the comments seem to contradict each another, they do not because the two men are talking about different types of international agreements with different governing legal principles.

The first thing to know about the deal with Iran that the Obama administration is negotiating along with its P5+1 partners (the five permanent members of the United Nations Security Council, plus Germany) is that it is not a “treaty.” As spelled out in the U.S. Constitution, treaties are negotiated by presidents, but must be approved by a two-thirds majority of the Senate before they can be ratified by the president. (The Cotton letter, then, was technically incorrect in claiming that “while the president negotiates international agreements, Congress plays the significant role of ratifying them.” The Senate provides “advice and consent,” but the president actually “ratifies” treaties.)

Much more common than treaties — especially post World War II — are “executive agreements,” which do not require advice and consent of the Senate.  According to a report on international law and agreements from the Congressional Research Service in February, “Executive agreements are not specifically discussed in the Constitution, but they nonetheless have been considered valid international compacts under Supreme Court jurisprudence and as a matter of historical practice.”

Among these executive agreements, there are three types: “congressional-executive agreements,” which involve the president entering an international agreement previously or retroactively authorized by Congress; “executive agreements made pursuant to an earlier treaty”; and “sole executive agreements,” which are deals made by the president pursuant to his constitutional authority and without need for congressional authorization, according to CRS. It is this last type of agreement that the administration is pursuing.

Jack Goldsmith, a professor at Harvard Law School and cofounder of Lawfareblog.com, wrote that “in comparison with a binding executive agreement under international law, a non-binding agreement with Iran is easier to make (because the President can clearly do it on his own) and easier to break (because there is no domestic or international legal obstacle to breaking it).”

Given that background, then, let’s take a look at the two versions discussed by Kerry and Cotton on the Sunday talk shows.

We’ll start with Kerry, who said Cotton’s letter was “incorrect, because [Congress] cannot change an executive agreement. So, it’s false information and directly calculated to interfere. … Congress does not have the right to change an executive agreement.”

Kermit Roosevelt, a professor of law at the University of Pennsylvania and an expert in constitutional law, said Kerry is correct that “Congress can’t literally change the terms of an executive agreement.”

“The president will negotiate some deal with a foreign country, and both sides agree to certain terms,” Roosevelt told us via email. “Congress can’t then come in and change the terms while keeping the agreement in force — it can’t make the other country agree, obviously, and it can’t change either party’s obligations within the framework of the agreement.”

Jeffrey Peake, who teaches courses on the presidency and Congress at Clemson University, agreed. “Congress cannot alter the content of the agreement — only the president can negotiate agreements,” Peake told us in an email. “Congress could enact a statute undermining the agreement, but this wouldn’t be a renegotiation, since the other sides would have to agree to such a change.  Given the multilateral nature of this agreement, this action becomes less likely and is certainly problematic from the executive’s perspective.”

Cotton, meanwhile, flipped the discussion a bit when he said congressional approval is necessary if Obama wants the deal to be “lasting and binding.” But as Kerry told the Senate on March 11, “We’ve been clear from the beginning: We’re not negotiating a, quote, legally binding plan.” So, Kerry said, it doesn’t need congressional approval.

The Congressional Research Service explained the precedent for such an agreement in its report on international agreements.

CRS, Feb. 18: Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally binding international agreement. In some cases, the United States makes “political commitments” or “gentlemen’s agreements” with foreign States. Although these agreements do not modify existing legal authorities or obligations, which remain controlling under both U.S. domestic and international law, such commitments may nonetheless carry significant moral and political weight. In some instances, a nonlegal agreement between States may serve as a stopgap measure until such time as the parties may conclude a permanent legal settlement. In other instances, a nonlegal agreement may itself be intended to have a lasting impact upon the parties’ relationship.

Cotton claimed that on Sunday, Kerry contradicted his Senate testimony and that “now he says that future Congresses can’t change a mere executive agreement if we disagree with them or if a future president disagrees with them.” That’s not what Kerry said. Kerry did say Congress does not have the right to change an executive agreement, and as we’ve said, that’s true. However, Kerry acknowledged that “another president may have a different view about [the agreement],” and he said it was the responsibility of the Obama administration to craft a deal that makes sure “this is in fact a proven peaceful program.”

“A statute will prevail in a conflict with an executive agreement,” Roosevelt said. “So if the president promises X, and Congress enacts a law forbidding X [and musters enough votes to override a presidential veto, if necessary] … then X is forbidden. So Congress can nullify an executive agreement, which isn’t quite the same as changing the terms.”

Peake says Cotton is “correct in the sense that any agreement that is done without Congress’ approval could be altered at a later date by future presidents, or, if a statute violates the agreement, the statute would prevail (if it was not already a treaty).”

In their book, “Treaty Politics and the Rise of Executive Agreements,” Peake and Glen Krutz of the University of Oklahoma argue that international commitments made without the approval of Congress, and in particular those that go against the wishes of Congress, are “essentially hollow.”

At a daily press briefing, State Department spokeswoman Jen Psaki was asked how exactly a nonbinding agreement is enforced.

Psaki, March 12: One, through robust and effective verification … measures to detect any Iranian failure to meet its commitment, including the additional protocol through the NPT [the Treaty on the Non-Proliferation of Nuclear Weapons]. So that’s part of it, so that would be required. And obviously there are certain steps that would be put into any agreement. And also by making clear, as I have today, that there would be clear and immediate consequences if Iran fails to meet its commitments.

In other words, Psaki argues, there are some enforcement mechanisms in a technically nonbinding agreement. But Cotton is correct that a legally binding agreement would need congressional approval.

Roosevelt added, however, that Cotton’s argument may not support his broader point, “because Congress can nullify a treaty in just the same way — if a statute conflicts with a treaty, the most recent prevails. So the fact that a future Congress could nullify an executive agreement isn’t a distinguishing feature. The distinction is that you could have a treaty that’s contrary to an earlier statute, whereas an executive agreement contrary to an existing statute would be void.”

While Obama may have the authority to negotiate independently, it also seems likely Congress will have involvement in the deal at some point.

John B. Bellinger, an adjunct senior fellow for international and national security law at the Council on Foreign Relations, told us via email that under the Case-Zablocki Act, “the executive branch is required to send all executive agreements (international agreements entered into by the Executive branch) to the Congress within sixty days after entry into force, but Congressional approval is not required, unless legislation regarding the specific agreement has previously been enacted.”

Meanwhile, Republican Sen. Bob Corker has proposed legislation, the Bipartisan Iran Nuclear Agreement Review Act of 2015, that would require Obama to submit any proposed agreement to Congress for a vote. The current congressional sanctions against Iran allow the president to waive U.S. sanctions, which has been the president’s bargaining chip in seeking compliance from Iran. The Corker bill would prohibit the administration from suspending congressional sanctions for 60 days while Congress held hearings to approve or disapprove the agreement.

As Goldsmith explained in a recent blog post, Congress could, at any time “remove” or “limit” the president’s authority to waive U.S. sanctions on Iran. Congress, he said, could decide to “enact legislation (over the President’s threatened veto) that removes or limits or delays the President’s authority to waive U.S. sanctions. (This is in effect what the Corker Bill aims to do.) Since there are clear Article I bases for the sanctions (most notably the foreign commerce clause), Congress’s [sic] has the authority to alter its sanctions regime in this way, even in the midst of the ongoing Iran negotiations.”

Obama’s chief of staff, Denis McDonough, recognized that congressional prerogative in a letter to Corker urging him to hold off on any legislation until a deal is finalized.

“We agree that Congress will have a role to play — and will have to take a vote — as part of any comprehensive deal that the United States and our international partners reach with Iran,” McDonough wrote. “As we have repeatedly said, even if a deal is reached, only Congress can terminate the existing Iran statutory sanctions.”

The Obama administration hopes to complete a framework for a deal this month, and then to have it finalized by the end of June.

— Robert Farley