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Iran Deal: Treaty or Not?

Corker has come under fire from the right for not insisting that the Iran deal be treated as a treaty. (Al Drago/CQ Roll Call)

As right-wing wolves circle Republican senators who they feel betrayed them and paved the way for the Iran nuclear deal, defenders say they are missing the point.  

Senators argue the legislation passed in April granting congressional review seized power back from President Barack Obama, and both they and the administration argue the deal negotiated with Iran isn't technically a treaty.  

But the wolves are hungry. “Obama is disgusted by our system of government,” commentator Mark Levin told Fox News’ Sean Hannity last week. “He wants nothing to do with Congress. And [Sens.] Bob Corker and Lindsey Graham and all the rest of them surrendered this power to Obama.”  

“They gave up their power as it relates to treaties; a constitutional authority they have,” Hannity said the same night.  

Their argument was that the Senate has the constitutional prerogative to ratify treaties (the Senate technically approves a resolution of ratification ) with a two-thirds majority and that senators forfeited their role in the process by passing the Iran review bill.  

Under that bill, just 34 votes will be needed to uphold a presidential veto of a disapproval resolution, just more than half of the 67 needed to ratify a treaty.  

Levin railed against Sen. John McCain, R-Ariz., to a Hill reporter  last week, after McCain told the reporter Congress has no say in whether an arrangement is a treaty.  

“The Senate could have taken up this agreement as a treaty and had a full debate on the Senate floor and involve the entire nation on what’s taking place and the Senate either ratifies or does not ratify,” Levin said. “I would suggest that Senator McCain take a few moments off from his appearances on cable TV to read the history of the treaties clause of the Constitution."  

Ouch.  

But recent precedent is squarely on McCain's side, notwithstanding the Webster's definition of a treaty as “an official agreement that is made between two or more countries or groups.”  

And the vast majority of international agreements in recent decades haven't been submitted to the Senate for approval.  

Presidents determine what kind of arrangement they are negotiating — a power that's evolved over the years. The difference is in both how the arrangement operates and how binding it is.  

“First of all, a treaty is something that lives beyond existing presidents. ... The next president can come in and undo an executive action like this," Corker said.  

In this instance, Obama is temporarily waiving existing sanctions pending certain conditions, and Congress will vote to either approve or disapprove. When the sanctions were levied, mostly in 2010, Congress gave him the authority to waive them.  

“When these people are writing about it, they are missing something, and that is what we've done with this resolution of approval or disapproval is we've taken back authority that Congress had already granted to him,” said Corker, the chairman of the Senate Foreign Relations Committee.  

When the committee learned Obama was considering temporarily waiving the sanctions (a committee staffer said no one envisioned in 2010 that the waivers would be used in this fashion), Corker began campaigning for congressional review.  

“We got wind of what he wanted to do. ... He was going to waive the sanctions temporarily,” Corker said. “But that temporarily, as we now read the agreement, is eight years.”  

“So he was going to ask Congress to give input on this eight years down the road,” Corker said. “And once I was able to argue the case that we're going to have to, at some point, waive those sanctions permanently, shouldn't we have to, on the front end, just go ahead and weigh in on this topic now?"  

Treaty is a term of art. So is "Joint Comprehensive Plan of Action," which is what the State Department has labeled the Iran deal.  

According to a State Department official, the Iran deal is similar to other initiatives — such as the 2013 negotiations with Russia to destroy Syria’s chemical weapons — and the primary difference is strength of the agreement.  

“The overriding reason to prefer a nonbinding international arrangement to a treaty is the need to preserve the greatest possible flexibility to re-impose sanctions if we believe Iran is not meeting its commitments under a Joint Comprehensive Plan of Action,” the official wrote in a statement.  

And, conveniently, it gets around that pesky constitutional requirement of getting 67 Senate votes — something hard to imagine any deal with Iran achieving.  

But if Congress wants to fight, it can pick a fight. From blue slips to lawsuits over executive overreach, the different pillars of government are not shy about telling others to step off their turf if they are so motivated.  

Some in the Senate tried that. Sen. Ron Johnson, R-Wis., pushed an amendment  to the review bill that would have required a two-thirds majority vote on the agreement. Other senators worried that amendment would sink the review legislation and voted against it.  

"I personally believe it does rise to the level of a treaty," said Sen. David Perdue, R-Ga., who voted against the Johnson amendment because he believed "we might have lost the Democratic support of this bill."  

And that could have left Congress without a say at all.  

There are congressional concerns that the White House would try to bypass Congress anyway — especially given the approval Monday of the deal by the United Nations Security Council, but Deputy Press Secretary Eric Schultz said implementation of the plan will not begin "until after the congressional review period is over.”  

Both Corker and ranking member Benjamin L. Cardin, D-Md., protested  the perceived end-around following a meeting between Vice President Joseph R. Biden Jr. and Foreign Relations Democrats.  

“I look at that as [an affront] to the American people,” Corker said, adding the council would be “agreeing to an agreement that they don’t even know they can implement.”

Related:
Senators: Congress Should Precede U.N. on Iran Deal In 2012, the Senate rejected a disabilities treaty despite the backing of former Senate Majority Leader Bob Dole.

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