What began as the quoted view of “experts,” who just happened to be found by the New York Times, and migrated onto an Iranian state Web site and then got repeated in the Lawfare blog has not gone unnoticed by savvy Republicans and conservative observers of the Obama administration’s Iran antics. As Jack Goldsmith said, the idea — bizarre as it may seem — is that the administration would go to the United Nations Security Council to pass the Iran agreement and thereby boost its status as enforceable international law.
As Goldsmith notes, the State Department refused to rule out the end run around the Senate and the Constitution. (“State Department spokesperson Jen Psaki said on Tuesday: ‘I’m just not going to get ahead of how this would be implemented at this point in time.'”)
There are multiple, serious problems with such an approach. For one thing, Secretary of State John Kerry confirmed in testimony to the Senate Foreign Relations Committee that it was a non-binding deal that the next president could demolish with “a stroke of the pen.” Was he misleading the Senate, or is he willing to rule out the end run around the Senate?
Second, the entire legal theory is dubious at best. To believe it could work is to assert the president can unilaterally supersede the dictates of the Constitution. The Supreme Court already has held that international law does not trump Congress or Congress’s refusal to act. In Medellin v. Texas, the court refused to stay the execution of a convicted murderer who claimed the Vienna Convention guaranteed him an appeal to the International Court of Justice (ICJ). Even though that treaty had been ratified — in the case of Iran, the deal would not be — Congress had not passed legislation to implement it as a matter of criminal law. The court held, “The point is that the particular treaty obligations on which Medellín relies do not of their own force create domestic law.” As Kerry has pointed out in the case of Iran, Congress would have to implement changes in sanctions law. Lyle Denniston explained:
The Court, in its decision March 25, ruled against Medellin, and against the President’s arguments. It found that only Congress could act, by the normal legislative route, to turn the World Court ruling into domestic law, and concluded that it had not done so.
It rejected an argument by the President’s lawyers that, while Congress had not directly legislated the Vienna Convention into a binding law in the U.S., Congress had acquiesced in the President’s action. “Even if we were persuaded that congressional acquiescence could support the President’s asserted authority…, such acquiescence does not exist here,” the Court concluded.
In short, an unratified treaty does not get to be binding law in the United States without Congress.
But the most important reason such a scheme would never pass muster is the political reaction to such a move. In a statement to Right Turn, Sen. Mark Kirk (R-Ill.) declared, “As U.S. diplomats try desperately to wrap up what’s looking to be a flawed nuclear deal with Iran, they must resist Iranian Supreme Leader Ali Khamenei’s demands for the White House to bypass Congress and go straight to the United Nations. For the United States, the ultimate legitimacy of any international agreement depends on the Constitution, U.S. laws, and our nation’s elected lawmakers, not on unelected foreign bureaucrats.” Imagine the Democrats trying to defend the proposition that the U.N. trumps Congress. As a former Democratic staffer told me, “It would reinforce the worst stereotypes about Democrats preferring global legitimacy to national sovereignty to bypass the congress in favor of the UN. It is truly delusionary to believe that a UN resolution would confer legitimacy to a bad deal.”
Former Texas Gov. Rick Perry also has weighed in. In a statement provided to Right Turn he asserted, “The robust debate between Congress and President Obama over the Iran nuclear deal is important and necessary as part of our democratic system of checks and balances. While the president shapes and directs American foreign policy, the Senate deserves a say on major arms control agreements — especially one of this consequence dealing with Iran’s nuclear weapons program.” He added, “I am increasingly concerned that President Obama will cut out Congress and take his Iran agreement to the UN Security Council. President Obama should assure the American people that he won’t transform what Secretary Kerry said is a ‘nonbinding’ political agreement into international law through the UN. If he wants a binding deal, President Obama should seek the approval of the United States Senate, not the United Nations.”
Well, if the idea is far-fetched legally and politically unattainable, why does the State Department not rule it out? It should. The administration made a decision to go it alone and pursue an executive agreement. That has consequences. If it wanted a binding deal, it should have included Congress and been prepared to submit it for ratification. It cannot have it both ways — even by screaming at Sen. Tom Cotton (R-Ark.) for exposing the non-binding nature of the deal.