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.