During his testimony before the Senate Foreign Relations Committee last week, Secretary of State John Kerry made clear that Congress would have “no other role or feedback” with respect to negotiations with Iran. He explained that Congress’s authority would be limited to voting to lift congressionally-mandated sanctions, but that’s it. Why? Because Article II.

“No, I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy. And he [the President] is executing thoroughly all his responsibilities of consultation, but in the end this is the president’s prerogative,” he continued. “You can always decide to oppose it one way or the other, as you might. Our hope is that we will consult, work together, not set up predetermined barriers that make it difficult to get to an agreement.”

In response, Sen. Bob Corker, Chairman of the Committee, has introduced the Iran Nuclear Negotiations Act (here is a version from the last Congress). The bill would require the President to submit the administration to submit any nuclear deal concerning Iran to Congress within three days of entering into the agreement. Corker explains:

In the event of any agreement with Iran, he said, “I do think it’s important that it is submitted, that we have the opportunity to approve it prior to the sanctions being lifted.”

Now, the President has threatened to veto a bill that would give Congress the opportunity to weigh in on the agreement.

President Barack Obama would veto a bill recently introduced in the U.S. Senate allowing Congress to weigh in on any deal the United States and other negotiating countries reach with Iran on its nuclear capabilities, the White House said on Saturday.

“The president has been clear that now is not the time for Congress to pass additional legislation on Iran.  If this bill is sent to the president, he will veto it,” said Bernadette Meehan, a spokeswoman for the White House’s National Security Council.

The United States and five other major powers are seeking to negotiate an agreement with Iran to curb its nuclear program in exchange for relief from economic sanctions.

The Iran Nuclear Agreement Review Act would require to submit to Congress the text of any agreement within five days of concluding a final deal with Iran. The bill would also prohibit Obama from suspending or waiving sanctions on Iran passed by Congress for 60 days after a deal.

Meehan said United States “should give our negotiators the best chance of success, rather than complicating their efforts.”

 

Like the National Defense Authorization Act, which required that POTUS give 30 days notice before releasing high-value detainees from Guantanamo, this bill would only require notice–not approval. The idea is that the President would not be able to quietly enter into a bad deal, without public scrutiny. But, the President will still veto this effort by Congress to limit his power. No doubt, if the veto was overturn by the Congress, the President would disregard it as an unconstitutional limit on his foreign powers–even though, in effect, it would approximate the level of support needed for ratification of a treaty (2/3 of the Senate!). (Update: Senator Graham suggests that a veto-proof majority may exist for an Iran bill).

One aspect of modern-day constitutional law that always irked me is the so-called “executive agreement.” By calling it an executive agreement, rather than a treaty, the President can avoid the requirement of advice and consent by the Senate. Of course, these agreements cannot bind domestically, in the absence of any implementing legislation, so Congress would have to be involved, but the agreement itself can be reached without input from the Senate. Once the agreement has been reached, and the Executive makes a deal with a foreign country, there are a whole host of other pressures that inhibit Congress from opposing the implementation of the executive agreement. This is why, I think, the framers put the ratification requirement for treaties as one of the few restrictions on the President’s powers over foreign affairs. The United States should not get entangled in foreign agreements unless the Senate concurs.

Here, as has become the pattern, the President openly flouts the Constitution’s structural provisions, meant to check his foreign policy powers (here the treaty ratification requirement), and then openly flouts Congress’s efforts to reassert their constitutional prerogatives (checking his ability to enter into foreign agreements) through the veto threat. This is an exact replay of DAPA, where the President bypassed his duty of faithful execution under a specious argument about prosecutorial discretion, an then threatens to veto a bill that would defund his unconstitutional actions. He did the same with a bipartisan bill in 2013 to allow people to keep their bills cancelled by Obamacare–he threatened to veto it, and then did it himself through executive power. This is a very, very disquieting pattern.

As a footnote, let me reiterate that I do not write about foreign affairs unless they implicate domestic constitutional separation of powers issues. Also, I do not have an informed opinion about how and what a deal with Iran should look like. My interests only concern how foreign policy interacts with the Constitution.