It seems that the Biden Administration’s goal of an operational nuclear deal with Iran has reached a turning point. Officials involved in the negotiations have reportedly informed key members of Congress and the Senate that an announcement of an understanding with Iran is imminent. While the particular terms have apparently not been shared, the end product is said to closely resemble the 2015 agreement, the Joint Comprehensive Plan Of Action, or JCPOA. And therein lies an important tale of how sleight of hand duped the legislature of the world’s greatest democracy in the run-up to first iteration of the JCPOA. Will it be allowed to happen again with JCPOA II?
Prior to the JCPOA being adopted by the U.S., there was a debate as to whether it was a treaty, as many Senators and Congressmen contended, or merely an executive agreement as President Obama insisted. If a treaty, it required a two-thirds approval vote in the Senate. If a presidential agreement, the president could go it alone.
The problem for Obama was that there were not enough votes in the Senate for approval, yet many in Congress maintained that since it committed the U.S. to a course of action respecting one of the gravest issues of our times, it had to be handled as a treaty. The trouble was that the president was adamant on going it alone and would simply not submit it to the Senate.
So a compromise was arrived at in the form of the Iran Nuclear Agreement Review Act of 2015. In principle, INARA mandates that the JCPOA had to be submitted to both Houses of Congress for a specified time in which there would be an evaluation of the terms. During the period of the review, the president was prohibited from lifting the economic sanctions previously imposed on Iran, tying Obama’s hands and effectively putting the JCPOA on hold.
At the end of the review period, the Senate and the House would each vote to either approve or disapprove, although final disapproval would require a negative vote by both houses and a joint, formal resolution of disapproval. Absent a joint resolution of disapproval, the president would be free to lift the sanctions and the JCPOA would be, as they say, off to the races.
As it turned out, on September 11, 2015, the House voted against approval by a vote of 269-162. However, in the Senate, where there was also a majority in support of disapproval, the Democrats, supporting Obama, used the filibuster to avoid an official vote, thus not permitting both the House and Senate to go on record against the JCPOA in a joint resolution.
If the terms of the apparent new agreement are similar to those of the original JCPOA as the Biden team says, it would seem that the same game plan will be followed since majority support for the measure will still be lacking. Indeed, it could be expected that there would be even less support this time given that most of the reservations about the first agreement’s laughable inspection system and other key provisions turned out to be right on the money.
Ironically, Biden has said that there is no need for further Congressional review since JCPOA was not disapproved the first time around and the terms are similar. On the other hand, Biden simultaneously claims that JCPOA II introduces important improvements and should be supported.
At all events, 33 Senate Republicans, led by Senator Ted Cruz, last week sent a letter to Biden underscoring INARA’s requirements as to Congressional oversight relating to any new agreement with Iran. The letter says that “[w]e are committed to using the full range of options and leverage available to United States Senators to ensure that you meet those obligations, and that the implementation of any agreement will be severely if not terminally hampered if you do not.
Yet, as far as we can tell, there have not been any changes to INARA since 2015. Nor is the letter at all specific about what “options” and “leverage” were available.
So the prospect is for an outcome similar to that of the first time around and the exploitation of statute with intentionally built-in headwinds.
We continue to hope, however, that Cruz and company will be more adept, having already gone through the 2015 debacle. The stakes are too high to have the issue again decided by one man.
