I wrote last week that Republicans were complicit in the Obama Iran deal. Now they have a chance to make it right.
Andrew C. McCarthy has written an excellent piece at National Review titled “Congress Must Ditch the Corker Bill and Treat the Iran Deal as Either a treaty or Proposed Legislation to be Voted Up or Down.”
Republicans in Congress now have an opportunity to make sure that the Obama-Iran deal is considered under regular order and not in a way that guarantees the deal is allowed to become operative.
McCarthy notes that the actual deal struck with Iran is different from the way the Obama Administration sold this deal, and the Corker-Cardin bill, to Congress. “Even supporters of the Corker Bill must now see that the legislation anticipated and is designed to address an international agreement that is fundamentally different from the one the Obama administration has struck with America’s enemies,” writes McCarthy. This provides the Senate with an argument that the agreement between the Obama Administration and Iran does not comply with the statutory requirements to allow Congress to consider the Obama Administration deal under the expedited procedures, fast-track procedures, in Corker-Cardin.
Senator Tom Cotton (R-Ark.) penned a letter to the leaders of Iran explaining, “First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.” Cotton provides an argument for why this agreement should be considered under the treaty process.
First, Senate Majority Leader Mitch McConnell (R-KY) should promise to have the Senate Foreign Relations Committee and public hearings in the Senate Rules Committee, conduct hearings specific to the argument that this is a treaty and should be considered as such. That would trigger a process whereby the Senate would have to make a decision to consider this agreement under Corker-Cardin, as legislation under regular order or as a treaty.
If that does not happen, when Leader McConnell schedules a vote in the Senate, under the expedited procedures mapped out in Corker-Cardin, a senator should make a motion to refer this bill to the Senate Foreign Relations Committee and to be reported back for consideration as a treaty. If that motion fails, a senator should make a motion to consider this agreement under regular order and make a point of order that this agreement is not in compliance with the letter of the Corker-Cardin bill. If that fails, then a senator should make a constitutional point of order that this agreement is, in fact, a treaty and should be considered as such.
Even if all of these motions fail, they will serve an important purpose of putting senators on record and providing procedural votes that will make it evident that this agreement is unenforceable. This will force the presidential candidates in the Senate to speak on this issue and this will make this issue, and these votes, a point of contention in the presidential election.
In the House, Speaker John Boehner (R-OH) has a chance to either refuse to consider this agreement, because the Constitution does not empower the House to consider treaties or he can treat this agreement under regular order. In other words, the Speaker will have the opportunity to craft a rule that will allow the House to conduct a majority vote on this agreement between the Obama Administration and Iran.
Short of that, Republican House members would be ignoring their constitutional duty if they voted for a rule that allowed this legislation to be considered under the Corker-Cardin fast-track procedures. Any rule that is put forth that allows the Corker-Cardin procedure to be used would not be in order pursuant to McCarthy’s analysis that the agreement is not in compliance with the letter of the law and is unconstitutional because the House is forbidden from voting on treaties.
This may be one of the hottest issues moving forward in the presidential race and if the Republican candidates trash the Obama-Iran deal, why would Iran have any confidence in the future of the deal. If Members of Congress raise points of order and fight this deal procedurally, they will be helping to scrap it and start over.
Republicans will oppose the Iran deal, but it will all be a show if they don’t fight by using the Senate and House procedures at their disposal to squash it.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.