What profits it a man to gain the world but lose his soul? About the same as it profits the Senate to gain a chance to advise the president on his nuclear agreement with Iran, but surrender its prerogative to consent.
That is the self-emasculating effect promised by the current version of the Iran Nuclear Agreement Review Act before the Senate this week. Born of Senate Foreign Relations Committee Chair Bob Corker’s (R-Tennessee) noble and constitutionally inspired intention to subject to Senate approval any lax agreement the Obama administration brokers with Iran, the bill’s current version unfortunately trades actual Senate oversight for the mere appearance of oversight.
As an executive agreement rather than a formal treaty, the Iran deal Obama is negotiating can proceed without the two-thirds Senate approval the Constitution requires for treaties. That technicality, combined with the president’s infamous executive action quick-draw, threatens to exclude the Senate altogether. By giving Congress a voice on the agreement (on which even the United Nations will get to vote), the Corker-Menendez bill attempts to preserve the spirit of Article II, Section 2, along with the letter.
Let Me Count the Giveaways
To do so, however, the bill drastically lowers the threshold of meaningful congressional oversight. For instance, ordinarily the burden of whipping 67 Senate votes falls to treaty proponents, but the proposed bill shifts that burden to opponents.
Under the bill, stopping an Iran deal would entail Congress first passing legislation (with a simple majority) rejecting the proposed agreement; the president would then veto this bill, meaning the agreement would stand; then opponents must cobble together supermajorities of 67 percent in both houses to override the veto (which, the president knows, they cannot).
This means that to secure a deal with truculent Iran, the president would no longer need to persuade a vast majority of the republic; he need only cajole a thin 34-senator minority to turn nuclear diplomacy’s red lines into red ribbons. That became a piece of cake “once the president laid down the law to liberals on Iran,” according to Commentary’s Jonathan Tobin:
…the president made it clear to Democrats that he considered support for his Iran policy as a litmus test of party loyalty. That was first illustrated by the White House’s attempt to orchestrate a boycott of Israeli Prime Minister Netanyahu’s address to a joint session of Congress on the issue. But even after that effort flopped, the administration worked hard to twist the arms of wavering Democrats in order to persuade them to oppose a tough Iran sanctions bill that would have put more heat on Tehran to make concessions as well as the Corker-Menendez proposal.
Thus, if the Corker-Menendez bill passes as is, the president could execute the same weak Iran agreement that he was going to enter unilaterally—but now through a legitimized process whose threshold of legitimacy is so low that the process may as well not exist. But it will exist, and therefore so will the president’s upcoming narrative: that when Defender of the Constitution Obama submitted his Iran deal to the Republican-controlled Senate, the latter did not stop it, ergo the latter approved it.
Remember, Republicans: Congress Isn’t a Rubber Stamp
This is why Corker’s insistence that “this bill is about the process,” not about “the content of any deal,” loses steam. Many Republicans regard the proposed legislation as better than nothing because it forces the president to include Congress. Except it really does not. The process to be instituted risks turning Congress into a rubber stamp for future deals the executive brokers even when 60-plus percent of both chambers object. The result is an example of what Tocqueville called “accidental causes that can increase the influence of the executive power. … This makes one see well that the practice of government must not be judged by the theory.”
No one, of course, thinks the bill is perfect. But proponents who wish to see the current, weakened version pass unharangued by amendments that could spook Democrats will argue: Would it not be better to pass a bill that forces the president’s Iran agreement closer to constitutional congressional oversight, instead of just letting him run rogue?
No doubt. But Corker-Menendez does not bring treaties or executive agreements closer to oversight—only closer to Congress. The former implies a reasonable chance for Congress to exercise its authority. The latter implies only that Congress was given a chance to voice the empty protest of its powerless majority. Unamended, the bill provides no more oversight than parents who say, “We know we can’t stop you from going God knows where to get high, so ask to use our basement, and if we say no, use it anyway. Thanks.”
There’s only one thing worse than fighting a war with a president who ducks the Constitution and Congress at every turn: giving him cover while he does it.