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05/04/2015

Iran Thinks the Coming Nuclear Deal Will Be Binding -- And That Matters
Michael Ramsey

This post repeats some of what I have said before on the pending nuclear deal with Iran, but it seems increasingly important in light of (a) the recent exchange between Jack Goldsmith (Lawfare) and Andy McCarthy (NRO) and (b) Iranian Foreign Minister Zarif's remarks at NYU last week.

First, Goldsmith and McCarthy:  

To oversimplify, McCarthy argues that the pending deal fundamentally undermines the Constitution's original design by cutting the Senate out of the process; Goldsmith responds that because the pending deal is not binding under international law, and because the President has statutory authority to lift U.S. sanctions on Iran, there is no constitutional problem.  The full exchange is here:

The Corker Bill Isn’t a Victory — It’s a Constitutional Perversion (McCarthy)

Andrew McCarthy's Distortion of the Corker Bill (and the Constitution) (Goldsmith)

Responding to Jack Goldsmith on the Corker Bill & the Nature of Obama’s Iran Deal (McCarthy)

 Another Response to Andrew McCarthy on the Corker Bill Iran Review (Goldsmith)

Professor Goldsmith's bottom line (from the last post):

Yes, Obama’s aim is to permanently lift U.S. sanctions.  But that does not make the international deal he is pursuing a legally binding agreement, and it does not require Senate approval for the deal.  Such Senate approval is only necessary for (certain) agreements that are binding under international law, and this agreement with Iran is no such agreement.  I believe that McCarthy is confounding the deal’s aim to lift sanctions permanently with the deal’s status under international law.  The content of the deal will be an agreement to permanently lift sanctions if Iran meets compliance goals (that is the permanent part), but in form the deal is the functional equivalent of a handshake (that is the legally non-binding part).

I agree with Goldsmith, at least in theory.  But the facts underlying that theory look increasingly shaky.  From the Washington Post's report on Foreign Minister Zarif's talk at NYU (which was after the Goldsmith/McCarthy exchange):

“I believe the United States will risk isolating itself in the world if there is an agreement and it decides to break it,” said Zarif, who earlier this month returned to a hero’s welcome in Tehran after reaching a temporary framework agreement in Switzerland with the United States and five other world powers.

“Whether you have a Democratic or Republican president, the United States is bound by international law, whether some senators like it or not,” he added. “And international law requires the United States live up to the terms of an agreement it enters into.”

Zarif noted that most international agreements are simple executive orders that do not require Congress to ratify them.

So Iran apparently doesn't understand the pending agreement as "the functional equivalent of a handshake."  Iran (through its foreign minister) thinks (1) that the agreement will be binding under international law, and (2) that the U.S. President has independent authority to make such a binding agreement.  That fundamentally undermines Professor Goldsmith's defense of the coming deal, because Iran is likely correct on (1) and wrong on (2).

On the first point, as I understand the international law rule (and I'm not an expert on the point), a nation is bound to an agreement made by an agent with apparent authority to bind the nation, even if the nation's domestic law in fact does not grant such authority.  (It's easy to understand why international law would have that rule -- otherwise one party to an agreement could never be sure there actually was an agreement without becoming an expert in the other country's law).  So if the U.S. President acts in a way that causes Iran to believe he has authority to bind the U.S., the U.S. may be bound.  Put another way, why is Professor Goldsmith so sure the pending agreement won't be binding?  Apparently the U.S. has been sufficiently opaque on that point that its principal counterparty remains completely in the dark as to the U.S. view (assuming Goldsmith is right about the U.S. view).

This matters because Andy McCarthy is completely right (and Foreign Minister Zarif is completely wrong) on the second point.  While it may be true, in terms of sheer volume, that "most international agreements" the U.S. makes don't require Congress' (or the Senate's) approval, that says nothing about the need for approval of this particular agreement.  As I and others have argued, low-level, short-term diplomatic arrangements can, under the Constitution's original understanding, be made on the President' s independent authority.  Further, under the Supreme Court's decision in Dames & Moore v. Regan, settlement agreements -- and perhaps other kinds of agreements -- can be made by the President with Congress' implicit "acquiescence."  Thus the President does have substantial authority to make certain kinds of agreements on his own authority, and those kinds of agreements may be quite numerous.  

But the pending deal with Iran is not a low-level short term arrangement, and it is not a settlement agreement, and it does not have Congress' implicit acquiescence.  Nothing in the Constitution's original meaning or context suggests that the President has independent power to make long-term agreements on important matters such as arms control.  The Supreme Court has never approved the President's independent authority to make anything other than settlement agreements (and in Medellin v. Texas the Court indicated that it read its prior precedents on executive settlement agreements narrowly).  And practice does not support an independent presidential power to make important long term agreements: to the contrary, the practice is that such agreements are either approved by a supermajority of the Senate or (especially in the case of trade agreements) by a majority of Congress.

As a result, I am coming to think that McCarthy is right on the substance, even though Goldsmith is right on the law.  The President can enter into a nonbinding agreement on his own authority (as Goldsmith rightly says).  And the President can enter into some binding agreements on his own authority.  But he cannot (as McCarthy rightly says) entering a binding agreement on this topic on his own authority.  And crucially, if the President enters into this agreement without making clear that it is non-binding, it likely will be treated as binding -- and hence unconstitutional.