NY Times gets legislative and constitutional dynamic on Iran deal fundamentally wrong

John Harwood writes in the Times today:

[T]he mechanism for congressional consideration, agreed on by Republican leaders and the White House, reverses the typical legislative imperative.  Instead of requiring an extraordinary majority to act, it requires one to stop action — which means partisanship is all President Obama needs to approve the deal.

The Republican-controlled House and Senate can pass a resolution next month disapproving the deal, as lawmakers in both parties expect they will.  Mr. Obama can then veto that resolution, as he has promised to do.  To override that veto and block the deal, Republican leaders would need two-thirds majorities in each chamber.  That would require roughly 25 percent of congressional Democrats to abandon the president on his biggest foreign policy initiative.  In 21st-century American politics, that is an exceptionally high bar.

This formula represents an unspoken attempt by both parties to dodge the consequences of gridlock on high-stakes governance issues.

In other words, according to the Times, the Corker/Cardin legislation (“the mechanism for congressional consideration, agreed on by Republican leaders and the White House”) “reverses the typical legislative imperative,” i.e., it requires supermajorities of both Houses to disapprove the deal rather then requiring a two-thirds vote of the Senate to approve the JCPOA.

This is mistaken in almost every respect, for reasons I explain in much greater detail in these two posts, and (before Corker/Cardin was enacted) in my post with Jack Goldsmith here.

Because the deal with Iran itself is not binding as a matter of international law, the President had the constitutional authority to conclude it on behalf of the United States without any Senate or congressional approval, something that Corker/Cardin, and the upcoming vote, will not change.  (Even if Congress were to override the veto, the U.S. will still be a “party” to the JCPOA.)  What the debate, and the vote, is about is whether the President should be prohibited from waiving certain U.S. sanctions against Iran, as the U.S. has (politically) committed to do in the JCPOA.  Before Corker/Cardin was enacted, the President already had the power to waive those sanctions, wholly apart from the JCPOA, because Congress had delegated him that authority.  All that Corker/Cardin did, in effect, was to delay the President’s existing power to alleviate sanctions by 60 days (and to guarantee more extensive congressional oversight).

The upcoming votes, therefore, are merely about whether Congress will retract existing statutory authority from the President.  In order to do such a thing, Congress always needs to enact a new law; and because a President will almost always veto such a bill stripping him of such an important authority, Congress would invariably need supermajorities of both Houses to alter the status quo.  This is the “typical legislative imperative”; overriding a veto is, to be sure, a “high bar,” but there’s nothing “exceptional” about it, and Corker/Cardin has not reversed it in the slightest, other than to give Congress two months of debate that it otherwise would not have had before the President can waive sanctions. 

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Marty Lederman
