By John R. Bolton & John Yoo
Thursday, January 7, 2021
The first great conflict of Joseph Biden’s presidency
could erupt on the field of national security. In his most significant
foreign-policy achievement, President Donald Trump withdrew from Barack
Obama’s 2015 Joint Comprehensive Plan of Action, which traded limits on Iran’s
nuclear program for immediate financial relief (an estimated $120–$150 billion)
and the lifting of Western economic sanctions. Signaling a knee-jerk return to
failed Obama policies, the president-elect has promised he will immediately rejoin the JCPOA in a hopeless quest for a
peaceful settlement with Tehran’s mullahs.
New presidents feel the need to score policy wins in the
first months of their term. Democratic down-ballot failures in 2020 mean Biden
will have little maneuvering room to advance his domestic issues, and will
instead have to turn to foreign policy for any early successes. Despite gaining
the presidency by a healthy Electoral College margin (and winning the popular
vote), the Democrats have seen their advantage in the House of Representatives
shrink to a 222–212 majority (depending on two possible challenges), their
narrowest since 1942. The Senate outcome is even closer, with the majority
turning on the January 5 Georgia runoffs. Biden could be the first new
president since George H. W. Bush 32 years ago to enter office without a Senate
controlled by his party.
While the executive enjoys vast power in foreign affairs,
Republicans can put up a stiff fight through a combination of constitutional
strategy, congressional tactics, and political infighting. (We wrote on this
subject for National Review six years
ago, in “Advice on ‘Advice and Consent,’” December 31, 2014, without
noticeable effect on the Senate; but we decided to try again under new
circumstances.) They should refuse to accept the JCPOA as an international
agreement because of its failure to undergo the treaty process required by
Article II of the Constitution. If Biden emulates Obama and withholds JCPOA 2.0
from Senate consideration, Congress should deploy its own constitutional powers
by imposing mandatory sanctions on Iran, beefing up military spending in the
region, withholding appropriations to the State Department and other agencies,
and refusing to confirm nominees to national-security positions or cooperate
with the White House on other elements of its agenda.
The JCPOA is not the only international agreement the
incoming administration intends to revive. “The United States will rejoin the
Paris Agreement on day one of my presidency,” Biden promised in December,
referring to the global climate-change agreement. Biden also envisions
reentering the World Health Organization, from which Trump withdrew for its
cover-up of the COVID-19 pandemic’s China origins. The JCPOA, though, raises
the most immediate and profound constitutional problems.
The multilateral JCPOA reflected Obama’s misbegotten
notion that, with the nuclear-weapon issue “resolved,” Iran under the mullahs
would begin behaving like a normal nation. Rather than using Iran’s financial
bonanza to benefit its impoverished people, however, the mullahs funded
terrorists in Lebanon and Iraq, Assad’s regime in Syria, and Yemeni rebels.
President Trump wisely pulled the U.S. out of the agreement in May 2018 and
imposed even harsher sanctions that have pushed Iran to the brink of economic
collapse. The ability of Iran to foment terrorism and employ conventional
forces to undermine our allies in the region, such as Israel, Saudi Arabia, and
Egypt, has suffered, but it remains deeply threatening.
Nevertheless, Biden announced in December that, “if Iran
returns to strict compliance with the nuclear deal, the United States would
rejoin the agreement as a starting point for follow-on negotiations.” So doing
would only reward Iranian malevolence. The mullahs have never given up their
nuclear ambitions; they lied repeatedly to conceal their covert nuclear-weapons
program and greeted European efforts to save the JCPOA by building up Iran’s
enriched-uranium stockpiles beyond approved limits. According to media reports,
Iran is demanding that the incoming administration immediately rejoin the deal
and lift all sanctions unconditionally, without any corresponding freeze in
Iranian uranium enrichment. Tehran also intends to seek compensation for the
economic losses caused by the Trump-administration sanctions, making Iran the clear
favorite for 2020’s “Chutzpah of the Year” award.
Republicans should attempt to thwart Biden’s plan by
demanding adherence to the Constitution. In one of many demonstrations of his
disregard for the separation of powers, President Obama refused to submit the
JCPOA to the Senate as a treaty. Article II of the Constitution, however,
recognizes only a single manner in which the United States may enter
international agreements: The president “shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties,” but only if “two thirds of
the Senators present concur.” Article II’s plain meaning and history require
that any agreement that restricts the nation’s sovereignty must undergo Senate
approval by a two-thirds supermajority.
Joe Biden himself used to believe that the Senate’s
consent was required for all significant international agreements — at least
when Republican presidents made them. “With the exception of the SALT I
agreement, every significant arms control agreement during the past three
decades has been transmitted to the Senate pursuant to the Treaty Clause of the
Constitution,” Senators Biden and Jesse Helms declared about the 2002 Treaty of
Moscow, in which the U.S. and Russia agreed to deep reductions in their nuclear
arsenals. “No constitutional alternative exists to transmittal of the concluded
agreement to the Senate for its advice and consent.” In the 1980s, Biden even
attacked President Reagan’s missile-defense programs because they went beyond
the terms of the Anti-Ballistic Missile Treaty with the Soviet Union and
therefore required a new amendment to the treaty. He went so far as to pen a
scholarly article declaring the treaty power to be “a constitutional
partnership” between the president and the Senate.
Unfortunately, the Senate over nearly a century has
allowed its treaty role to be frittered away, as “sole executive agreements”
have become the overwhelmingly dominant mode of U.S. international agreements.
While there is no “bright line” that establishes what must be considered a
treaty rather than an executive agreement, JCPOA 2.0 clearly qualifies as a
treaty. And for senators seeking to begin the long-term project of restoring
their body’s authority, the Iran nuclear deal is an excellent starting point.
Senate Republicans should force President-elect Biden to
live up to his own words. The Constitution’s requirement of supermajority
consent to treaties was meant to guarantee that they would be backed by the
highest levels of political consensus. As Alexander Hamilton explained in Federalist No. 75, “The vast importance
of the trust, and the operation of treaties as laws, plead strongly for the
participation of the whole, or a portion, of the legislative body in the office
of making them.” Allowing a single man to make international agreements, he
warned, would not just risk unwise decisions but also invite the possibility of
the personal corruption of a president who might be tempted by either avarice
or ambition.
The Biden administration is sure to resurrect Obama’s
claim that the JCPOA did not amount to a treaty because it did not constitute a
legally enforceable agreement. The JCPOA was not even “a signed document,” the
Obama State Department under John Kerry explained, but just a series of
“political commitments.” But in 2015 congressional hearings, the administration
more candidly admitted that it simply could not persuade two-thirds of the
Senate. Asked by a member of the House Foreign Affairs Committee why the JCPOA
was not considered a treaty, Kerry (who will join the incoming administration
as Biden’s “climate czar”) replied, “Well, Congressman, I spent quite a few
years trying to get a lot of treaties through the United States Senate, and it
has become physically impossible.” He went on: “That’s why. Because you can’t
pass a treaty anymore.”
Obama refused to submit the JCPOA to the Senate, which
meant the Senate had nothing on which to vote. Republicans responded by
enacting the 2015 Iran Nuclear Agreement Review Act, which not only was
toothless but unfortunately gave the JCPOA the patina of having survived
congressional scrutiny. Reversing the Constitution’s presumption against
entering international agreements, INARA required Congress to pass a law to reject the JCPOA, subject to
presidential veto. Unsurprisingly, the JCPOA sailed on.
In 2015, senators effectively accepted defeat. This time,
if Biden flouts the Senate’s constitutional treaty role, the Senate should
retaliate asymmetrically. Most important is Congress’s appropriations power,
perhaps its strongest constitutional sword. Threatening to defund large parts
of the State Department would certainly get the new administration’s
attention. Former Connecticut Republican senator Lowell Weicker, for example,
once forced action on a nomination for U.S. attorney by obtaining a rider
barring any use of appropriated funds for travel by the attorney general. Talk
about getting someone to wake up! The appropriations power also allows Congress
to earmark funding in military programs for those it considers priorities, such
as increased capabilities to deal with Iran’s threat. Mandatory statutory
sanctions against Iran reflect another possible front in the struggle against
Biden’s appeasement.
Similarly, if the Senate isn’t afforded an opportunity
for advice and consent on JCPOA 2.0, it can easily withhold advice and consent
on everything else, starting with the nominee for secretary of state. This is a
test of constitutional wills rather than a matter of the Senate’s proper role
in confirmations — on that front, both parties have been overdoing it for
decades. Fixing the specifics of the confirmation process, now badly out of
sync, is a subject for another day.
Make no mistake, we are proposing Senate (and House) hardball here. As in 2015, JCPOA opponents in the legislative branch may not want to play. But if that’s the case, let’s hear no more complaints about the continuing decline of congressional influence in national-security affairs.
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