When a couple of lawyers lecture you about your “fundamental misunderstanding of our Constitution and the relative powers of Congress and the president in foreign policy,” ask yourself this: Have they cited the provisions of constitutional or statutory law they claim you’ve misunderstood? If not, if they’re hiding the ball, you’re probably being conned. Alas, that is the case with the disingenuous defense of Senator Bob Corker’s Iran Nuclear Agreement Review Act of 2015 (INARA), offered on Thursday by Lester Munson and Jamil Jaffer, two former staffers on the Senate Foreign Relations Committee, which Corker chairs.
The senator’s nose is out of joint over a National Review editorial this week. With his name among those being floated to be appointed secretary of state in the Trump administration, the editors observed that Corker “was last seen facilitating President Obama’s Iran-deal path through Congress, in one of the prime exhibits of GOP fecklessness in recent years.”
Truer words were never spoken. Professors Munson and Jaffer try in vain to paper over this fact, replaying the sleight-of-hand their former boss has spun since first proposing the woeful INARA. They misstate both the law and the position of INARA naysayers — of whom, I am proud to say, I was among the most ardent.
Let’s deal first with the matter of misrepresenting the naysayers. Contrary to the professors’ claim, it is not true that “many people think Congress ought to have ‘forced’ the president to submit the Iran deal as a treaty.” Nor do Corker’s detractors believe “Congress should have ‘made’ the Iran deal a treaty.” Congress has no power to coerce the president to comply with the Constitution’s treaty clause (art. II, sec. 2, cl. 2), a provision the authors take pains to avoid addressing.
What we in the opposition argued is that, if Congress does not undermine it, the Constitution is plenty strong enough to foil the ambitions of a rogue president. True, Congress cannot compel the president to execute our law faithfully. But if the president is derelict in his duty to submit an international agreement to the Senate for its approval, or to the full Congress for implementation as ordinary legislation, then the agreement will not have the force of American law. It remains a mere executive agreement between the president and other chiefs of state. That means it may be rescinded at any time, by either the president who entered it or a successor president.