Yes, the President Can Unilaterally Make Deal With Iran

Jack Goldsmith and Marty Lederman, both former acting directors of the Office of Legal Counsel (the DOJ department that advises the president on the scope of his constitutional powers), write that those 47 Senate Republicans were wrong about the need for President Obama to get Senate approval of any deal he reaches with Iran over their nuclear program.

There is little doubt that the President can agree to such nonbinding arrangements without congressional or Senate approval. It has happened very frequently in our history, on matters both large and small. (See pages 563-566 of this article by Duncan Hollis and Joshua Newcomer. For helpful further background on such “soft law” agreements, or “political commitments,” see this recent article by Jean Galbraith and David Zaring.) An example of a legally binding executive agreement is the Algiers Accords; an example of a non-legally binding executive agreement is the recent U.S.-China Joint Announcement on Climate Change. Both types of agreement can express commitments and induce compliance based upon the logic of the agreement and the traditional, expected incentives associated with mutually agreed-upon diplomatic arrangements. By definition, however, the United States, Iran and the other five signatories would have international obligations to comply with a legally binding agreement, and no such legal obligations to comply with a non-binding agreement.

So, will the Iran deal, if finalized, be such a nonbinding agreement among the seven parties—with incentives for compliance but no obligations enforceable under international law?

It appears that it will be, at least if the U.S’s expectations are borne out. In yesterday’s press briefing, State Department spokesperson Jen Psaki repeatedly referred to the parties negotiating “political commitments,” and described the prospective deal as “a nonbinding international arrangement, to be signed (if it is signed) by the United States, the United Kingdom, France, China, Russia, Germany, and Iran,” in which Iran will make “verifiable and enforceable commitments to adhere to . . . limits.”

“Historically, under many administrations,” Psaki said, “the United States has pursued important international security initiatives through nonbinding arrangements where that has been in our national interest. In the arms control and nonproliferation area alone, some representative examples include the U.S.-Russia deal to remove chemical weapons from Syria, the Proliferation Security Initiative, the Nuclear Supplier Group Guidelines, [and] the Missile Technology Control Regime. There’s a lot of precedent for this being political commitments made by all sides.”

Likewise, back in January, White House Press Secretary Josh Earnest said that “a congressional vote on a nonbinding instrument is not required by law and could set an unhelpful precedent for other negotiations that result in other nonbinding instruments.” [See also Tyler Cullis’s letter to Just Security last July.]

There may be tricky questions about the sources and proper scope of the President’s power to make sole Executive agreements that bind the United States under international law. But if, in fact, the “P5+1” and Iran conclude a nonbinding “political” agreement, there is little doubt about the President’s constitutional authority to make the deal on his own.

The Senate Republicans assumed, honestly or dishonestly, that any agreement made with Iran in this situation would be a treaty, which would require their consent. But not every agreement is a treaty. The enforcement of such a non-binding agreement will be the threat of sanctions. One of the key factors driving Iran to pursue such an agreement is a desire to see the economic sanctions that have long been imposed by the United States reduced or eliminated. This is especially important to them due to the collapse of oil prices because the combination of that and the sanctions is devastating to their economy.

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  • dingojack

    “See pages 563-566 of this article by Duncan Hollis and Joshua Newcomer. For helpful further background on such ‘soft law’ agreements, or ‘political commitments’. For helpful further background on such “soft law” agreements, or “political commitments,” see this recent article by Jean Galbraith and David Zaring.) ”

    “Political” commitments and the Constitution‘. Duncan B. Hollis & Joshua J. Newcomer. Virginia Journal of International Law. Vol. 49, Issue 3, pg 507. 2009.

    Soft Law as Foreign Relations Law‘. Jean Galbraith & David Zaring. University of Pennsylvania. Penn Law: Legal Scholarship Repository. 2014.

    Dingo

  • http://www.gregory-gadow.net Gregory in Seattle

    It is almost as if these senators have completely forgotten Saint Ronnie’s unilateral deal with Iran back in the 80s. You know, the one where he illegally sold heavy arms to Iran and then used the money to illegally fund death squads in Honduras and Nicaragua. I was left with the impression that the President didn’t have Congressional authorization on that, either.

  • brucegee1962

    I saw Tim Kaine arguing that, since it was Congress that put the sanctions on Iran in the first place, it would take Congress to lift them. Isn’t that a fair description? I doubt that Iran would agree to anything without a promise to lift them.

    Congress to Iran: It’s sanctions and bed without supper for you until you agree to negotiate to get rid of your nuclear weapon.

    Iran: Ouch! These sanctions really hurt! Okay, uncle, I’ll agree to go to the negotiating table to get rid of my nuclear weapons program.

    Congress: Cheater, cheater, cheater! First you said you wouldn’t get rid of your weapons, and now you say you might. Obviously your word can’t be trusted. More sanctions for you! Also, Yay America!

  • Who Cares

    @brucegee1962(#3):

    There are multiple levels of sanctions.

    Congress has passed sanctions, there are sanctions done by presidential fiat and international sanctions.

    The US president can lift the second set by a pen stroke.

    And the same people who sent that letter have been flipping out by the (deliberate) leak that the international sanctions would be lifted early

  • Who Cares

    Oh I forgot. Iran didn’t get to the negotiating table because the sanctions hurt. They came to the table by a combination of thinking they finally had something they could sacrifice (a heavy water reactor, 90% enrichment facility, between 6k and 12k centrifuges over what they really wanted), the strengthening of local control (the US needs Iran to keep a lid on the mess in Iraq and Syria), Obama being more of a realist and wanting a compromise (even if it is just to have at least 1 major foreign political success) and Russia convincing them it would be in their benefit to negotiate (it helps if at least one of your negotiating partners is not actively hostile).

    The sanctions only starting to really hurt when Saudi Arabia through OPEC deliberately used the oil price as a weapon against (amongst others) Iran. Before that they were managing to keep their economy going due to the high oil price.