Iran Deal May Bind Next President
Scholars say the nuclear agreement could be binding under domestic and international law.
Iranian Foreign Minister Mohammad Javad Zarif smiles in Vienna on Friday.
Can the next American president scrap the nuclear deal the U.S. and other world powers reached with Iran? It's a surprisingly complicated question, and the answer depends on whom you ask.
Many Republican candidates for president oppose the deal, saying it comes with too few strings attached for the theocratic and strategic rival, but some legal scholars say a President Jeb Bush or Donald Trump wouldn't be able to repudiate the U.S. commitments very easily.
Consideration touches on principles of international and domestic law, and on legislation members of Congress passed saying they can review the compromise, arguably transforming it from a nonbinding political commitment into one with greater legal heft.
The more than 100-page agreement announced Tuesday outlines various actions that participants will either take or attempt to take. Sanctions would be lifted in exchange for Iran consenting to limits on its nuclear program, which it insists is for peaceful purposes, and to inspections of it.
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As negotiations unfolded, nervous lawmakers in May passed the Iran Nuclear Agreement Review Act, granting themselves 60 days to pass a resolution disapproving of the deal. With President Barack Obama pledging to veto any such measure, the resolution needs two-thirds support in both chambers, or the deal can take effect.
That review legislation didn't grant Congress greater power than it already had, says New York University School of Law professor David Golove. But what it did do was make the deal – absent veto-proof opposition – an executive-congressional agreement.
By essentially granting pre-emptive assent to a deal that could survive a proposed resolution of disapproval, he says, lawmakers locked the president and future presidents into abiding by it.
"The president can't ignore commitments he has made in congressional-executive agreements without congressional authority to do so," Golove says.
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"Presidents do not have the power to repudiate congressional-executive agreements without strictly following the procedures laid out by Congress in its original authorizing legislation," agrees Yale Law School professor Bruce Ackerman, who believes "Congress' decision was very unwise."
Treaties are better-known instruments for international dealmaking and require a two-thirds vote in favor of ratification by senators. Congressional-executive agreements are similar and often used as a substitute, requiring only a majority vote in both chambers.
Had Congress not passed the review legislation, Golove and Ackerman say, the deal would have had less legal weight as an agreement to which only the administration consented.
The wording of the deal itself appears to perhaps offer wiggle room if U.S. politicians turn against it.
[TRANSCRIPT: President Obama's Statements on Iran Deal]
The deal says "the U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing" sanctions and "will refrain from imposing new nuclear-related sanctions." But it also says the U.S. "will make best efforts in good faith to sustain this [deal] and to prevent interference with the realisation of the full benefit by Iran" of lifting sanctions.
"It is binding the U.S. to eliminate sanctions, which is something Obama already has power to do under existing statutes, but it is not promising in an ironclad way to avoid reimposition," Golove says. "So Congress isn't bound in the future by the agreement if it wants to reimpose what the president has already removed, but this president and future U.S. presidents are bound to withdraw any existing sanctions and not to reimpose them on executive authority … or something like that."
Not everyone's convinced the deal, assuming it survives with Iranian compliance, would tie the hands of future presidents.
"Express congressional approval seems very unlikely," says Michael Ramsey of the University of San Diego School of Law, who disagrees the review act essentially ratified the deal. "Assuming Congress won't expressly approve, the deal can only be a nonbinding one, which this president can implement to the extent of his statutory and constitutional authority [and] future presidents can refuse to follow."
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But even if the deal is a nonbinding executive agreement under domestic law, Ramsey says, it's possible that it's binding under international law.
"You can't claim domestic invalidity to get out of an international deal," he says. The key to evaluating if the deal is binding internationally, he says, is the intent of parties, which can partially be gleaned by the strength of written commitments.
But Ramsey, who says the parties' intent is not currently clear, says there's no obvious U.S.-recognized venue for Iran to lodge a hypothetical legal challenge against backtracking.
Golove, asserting the primacy of textual analysis, says the deal is binding under international law unless it contains a provision saying otherwise – regardless of White House declarations. The deal appears to include no such language.
Still, he adds it's conceivable a future president would say: "Good, I don't care. International law, what's that?' I've never heard of it."
