The Joint Comprehensive Plan of Action (JCPOA) intended to constrain Iran’s nuclear ambitions in exchange for a relaxation of sanctions is a “treaty” under Article II, section 2, clause 2 of the U.S. Constitution. President Barack Obama has mischaracterized the JCPOA as an “executive agreement” to avoid the necessity of Senate approval by a two-thirds majority. That consensus is beyond his political reach.
The president’s JCPOA label is both preposterous and alarming — another executive usurpation of a congressional prerogative that has reduced the Constitution’s separation of powers to an ink blot.
A treaty by any other name is still a treaty.
An analogy from Abraham Lincoln is unanswerable. When asked, “How many legs does a dog have if you call the tail a leg? Lincoln owlishly replied, “Four. Calling a tail a leg doesn’t make it a leg.”
But the Senate is doing nothing to defend its Treaty Clause role. Senate Majority Leader Mitch McConnell, Kentucky Republican, exhibits all the courage of a watchdog that retreats to its kennel when danger appears.
He disarmed the Senate’s ability to block the JCPOA by spearheading the Iran Nuclear Agreement Review Act of 2015. It permits the executive agreement to become effective unless both the House and Senate vote resolutions of disapproval and marshal two-thirds majorities to override a certain presidential veto. That negative congressional consensus unattainable. Nearly 40 senators have already announced their support for the JCPOA.
The U.S. Supreme Court, however, has refused to excuse a separation of powers violation simply because the violated branch consents to the rape. The doctrine is intended to protect the liberties of the people irrespective of a branch’s eagerness to abdicate its responsibilities. Chief Justice John Roberts has explained: “[T]he values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers therefore does not mitigate the harm or cure the wrong. “
The Treaty Clause was embraced because the president cannot be trusted on the international stage to subordinate private ambitions to the national welfare. Alexander Hamilton elaborated in Federalist 75: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” Hamilton also defined treaties as “CONTRACTS with foreign nations which have the force of law … agreements between sovereign and sovereign.”
The Vienna Convention on the Law of Treaties echoes that definition: “[A]n international agreement concluded between States in written form and governed by international law.”
Even migratory birds have been subject to treaties, for instance, the Migratory Bird Treaty of 1916 with Great Britain Agreements addressing nuclear weapons have uniformly been deemed treaties by the United States, including the Limited Test Ban Treaty, the Nuclear Nonproliferation Treaty, the Anti-Ballistic Missile Treaty, the Strategic Arms Limitation Treaty (I), the Strategic Arms Limitation Treaty (II), the Intermediate-Range Nuclear Forces Treaty, the Comprehensive Test Ban Treaty, and the Strategic Arms Reduction Treaty.
Testifying before the House Foreign Relations Committee last July 28, Secretary of State John Kerry defiantly maintained that the JCPOA was not submitted as an executive agreement because Senate would reject it as a treaty. He amplified to Republican Rep. Reid Ribble of Wisconsin: “I spent quite a few years ago trying to get a lot of treaties through the United States Senate. And frankly, it’s become physically impossible … Because you can’t pass a treaty anymore … And I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics. So I think that’s the reason why [the JCPOA was not submitted as a treaty].”
Once upon a time, such sneering contempt for the Constitution would have been deemed an impeachable offense justifying removal from office — a variation of President Richard Nixon’s counter-constitutional arrogance to David Frost: “[W]hen the President does it that means it is not illegal.”
Majority Leader McConnell should orchestrate a Senate resolution authorizing the chamber to bring suit against President Obama to enjoin implementation of the JCPOA as an unconstitutional executive agreement in violation of the Treaty Clause. Recent Supreme Court decisions concerning the political question doctrine and standing would give the litigation a fair prospect of success.
Posterity will execrate him if he acquiesces in presidential dictatorship without a fight.
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