« Ilya Somin on States Refusing Syrian Refugees
Michael Ramsey
| Main | The Consequences of Allowing Presidents to Ignore the Declare War Clause
Mike Rappaport
»

11/30/2015

State Department: Iran Nuclear Deal Is Nonbinding
Michael Ramsey

Per this letter from Assistant Secretary for Legislative Affairs Julia Frifield to Congressman Mike Pompeo.  Key paragraph: 

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(Via Marty Lederman at Balkinization, with additional commentary at Lawfare from Matthew Weybrecht).

Some quick thoughts:

(1) A "political commitment" is a well-accepted technical term for a nonbinding agreement.  So this letter makes clear the administration's position that the JCPOA is nonbinding (which I have previously assumed to be the case).  This is a very welcome clarification; it would have been much better to have stated it sooner, to prevent domestic and international misunderstandings.  Clarifying that point removes the most important constitutional objection to the JCPOA (as I discussed here).  In my view, the President's executive power over foreign affairs allows him, as a general matter, to make nonbinding political commitments without the approval of the Senate or Congress.  While I have some constitutional reservations about the longer term commitments in the JCPOA, the core of the deal (lifting sanctions) is within the President's power even without the JCPOA.  Thus he can undertake to lift them upon Iran taking certain actions.

(2) Because the JCPOA is a nonbinding agreement, the next President is (by definition) not bound by it, either as a matter of international law or as a matter of U.S. constitutional law.  Thus, Professors Bruce Ackerman and David Golove owe Marco Rubio an apology.  In an article earlier this year, they called Senator Rubio lawless for declaring his intention to repudiate the JCPOA if elected.  That declaration, they wrote, was "an unprecedented pledge to inaugurate his term by repudiating the constitutional command to 'take care that the laws be faithfully executed.'"  Not so.  As the State Department letter makes clear (and as I and Julian Ku argued at the time), the JCPOA -- as a nonbinding agreement -- is not part of the laws which the President must faithfully execute.  

(3) A lot of people owe Senator Tom Cotton an apology.  Last Spring he famously wrote an "open letter" to Iran's leadership (actually a post on his website) saying that the then-pending deal with Iran could be repudiated by the next President if not approved by Congress.  For this he was widely criticized, both substantively and procedurally.  But it's clear now that he was simply stating a basic proposition of U.S. law that the State Department does not contest.  If the JCPOA is a nonbinding political commitment, as the State Department now says, it does not bind the next President.  Thus, regardless of the propriety of the Senator communicating (in a sense) with a foreign government, the substance of what he wrote was exactly right and was consistent with the administration's approach the to negotiations.

RELATED:  This issue is going to recur after the pending Paris climate change conference (assuming it produces an "agreement" of some sort).  See this post from Julian Ku: A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement.  A key point: "the Senate should require the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments."