The Iran deal — treaty or not?

I have criticized the positive reaction to Corker-Menendez bill, arguing that the Constitution requires a two-thirds majority to have a deal like this approved, whereas under Corker-Menendez it takes effect unless there is a two-thirds majority against. However, the estimable Jack Goldsmith argues that the Constitution does not require President Obama to muster a two-thirds majority to approve an “international agreement,” which is how he characterizes Obama’s pending deal with Iraq.

Goldsmith makes this argument in response to an article by Andrew McCarthy that took a position similar to mine. McCarthy responds to Goldsmith here.

I encourage readers to check out both sides of this argument. For what it’s worth, I continue to agree with McCarthy.

Goldsmith’s main argument is that the Iran nuclear deal will not be legally binding under international law. But the Iranians don’t concede that the deal isn’t legally binding. Their chief negotiator has said that “if the next administration revokes any agreement with the stroke of a pen. . .it will have simply committed a blatant violation of international law.” As McCarthy says, U.N. Security Council approval of the accord will enable Iran and other nations to argue that the agreement binding even if it does not have binding effect under U.S. law.

Under these circumstances, and given the significance of the deal and the reality that an effective sanctions regime cannot, as a practical matter, be reimposed once the deal takes effect, I believe that it should be considered an treaty. As such, approval by a super-majority of the Senate should be required.

I agree with Goldsmith, however, that Corker-Menendez doesn’t detract from the Senate’s limited ability to oppose the Iran deal. With or without the legislation, Obama has the power to lift the sanctions, and a super-majority would be required to override him on this. As I said in my initial post on the legislation, it “doesn’t diminish Congress’ position; I’m just not convinced that Corker-Menendez meaningfully improves it.”

It is the enthusiasm over Corker-Menendez, not the legislation itself, that I find embarrassing.


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