It’s game-over on the Iran deal until at least 2017

This week, as expected, support in the Senate for President Obama’s nuclear deal with Iran reached the level required to sustain a veto if the Senate votes the agreement down under the procedure established by the Corker-Cardin legislation. There’s also a good chance that Obama’s Senate support will be sufficient, in the end, for Democrats successfully to filibuster Senate consideration of the deal.

Andy McCarthy argues, however, that it is not “game-over” on the Iran deal — not if the Senate frees itself from the Corker-Cardin process.

[T]he preliminary step that must be taken is a resolution by Congress stating that (a) the Corker review process cannot proceed because the Obama administration has failed to comply with the Corker legislation’s express conditions; (b) therefore, under the legislation’s terms, Congress cannot proceed with an up-or-down vote on the Iran deal; and (c) the sanctions remain in effect, even if they are temporarily dormant because Obama won’t enforce them.

McCarthy is right that Obama failed to comply with the express conditions of Corker-Cardin. The legislation required him to transmit to Congress “the agreement. . . . including all related materials and annexes.” He was obligated to do this “not later than five days after reaching the agreement.”

Obama did not meet this obligation. To this day, he has not provided Congress with materials — the Iran-IAEA side deal — that not only relate to the agreement but are an integral part of it.

Thus, because Obama hasn’t followed a key condition precedent to a vote under Corker-Cardin, Congress has the right, and indeed the duty, not to conduct such a vote.

In addition, as I discussed here per an article by Harold Furchtgott-Roth, we learned subsequent to the enactment of Corker-Cardin that the Iran deal effectively amends the Nuclear Non-Proliferation Treaty (NPT). This can only be done by another treaty or an act of Congress. Since the Corker-Cardin procedure is insufficient to ratify a treaty or enact a statute, it should not be used to consider the Iran deal.

The problem, as Andy recognizes, is that in the absence of the Corker-Cardin procedure, Obama will proceed to implement his deal as if it had survived that procedure. U.S. sanctions will become dormant. Congress can complain about not having seen the side deal and about modification of the NPT, but our courts won’t resolve a dispute between the president and Congress over foreign policy.

Andy argues aborting the Corker-Cardin process and passing a resolution would increase the likelihood that the next president won’t adhere to Obama’s deal. I disagree. The next president’s decision will be governed entirely by his or her policy preference.

Andy suggests that if Corker-Cardin is followed, there will be a reasonable legal argument in 2017 that Congress repealed the (dormant) sanctions in 2015. However, I don’t see any merit in an argument that the Corker-Cardin process is sufficient to repeal an act of Congress (just as it isn’t sufficient to modify the NPT). In any event, Congress could pass a resolution affirming that it intends no such repeal.

Andy also believes that Congress will send a stronger message of disapproval to Iran by not adhering to Corker-Cardin. It seems to me, however, that the message is the same however Congress proceeds — Republican legislators hate the deal; the vast majority of Democrats will go along with it.

Corker-Cardin permits Congress to send this message (for what it’s worth). If Obama is forced to veto congressional disapproval of the deal, there’s a message in that. If Democrats are forced to prevent Senate consideration of the deal because they know it can’t muster majority support, there’s a decent message in that to.

As for domestic politics, the difference between the two political parties is also plain for all to see under Corker-Cardin. Thus, I see no political advantage in departing from it.

I don’t mean to say that Republicans shouldn’t depart from Corker-Cardin. They should. Obama didn’t follow this legislation and therefore it should be treated as a nullity.

But any way you slice things, it’s game-over on the Iran deal until at least January 2017, with no advantage gained at that point by congressional maneuvering in 2015.