In USA Today, Alan Dershowitz has a surprisingly originalist assessment of the Iran deal: Mr. Obama, your Iran deal will fall apart. (Via Elizabeth Price Foley at Instapundit).
From the introduction:
The Framers of our constitution probably would have regarded the nuclear deal with Iran as a “treaty,” subject to a two thirds ratification by the Senate. At the very least they would have required Congress to approve the agreement by a majority vote. It is unlikely that it would have allowed the President alone to make so important and enduring an international agreement.
If President Obama doesn't treat the Iran agreement with more respect, all his arguments today are beside the point. The agreement won't have the force of law.
Article II, section two of the Constitution states that the president “shall have the power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur…” Although the Constitution did not provide a clear description of the types of international agreements the Framers viewed as “treaties,” there is evidence that they included significant and long-term commitments with foreign countries. Some early versions of the Constitution allocated treaty-making powers solely to the Senate, but Alexander Hamilton argued that “joint possession of the power in question, by the President and Senate, would afford greater prospect of security, than the separate possession of that by either of them.” He thought it unwise to give a single person all the power to shape the country’s relationship to the rest of the world. He believed that the public is much better protected from abuse under the Constitution than it was under the Articles of Confederation, which rested the power solely in the hands of Congress.
Bonus: citation to Vattel on the original meaning of "treaty."
Professor Dershowitz concludes:
Let us never forget that America is a democracy where the people ultimately rule, and if the majority of Americans continue to oppose the deal, it will ultimately be rejected, if not by this administration, th[e]n by the next. An agreement, as distinguished from a treaty[,] does not have the force of law. It can simply be abrogated by any future president. …
I noticed that in last night's Republican presidential debate, all of the candidates that spoke to the issue said or implied that they would terminate the deal, without any suggestion that there might be domestic or international legal barriers to doing so.
Also I noticed that President Obama, in his speech at American University, called the deal a "detailed arrangement" — which sounds like legal jargon for a nonbinding agreement. (But he also said that the arrangement "permanently prohibits Iran from obtaining a nuclear weapon." Well, if it's a nonbinding arrangement it doesn't "prohibit" anything; it only says that we will lift sanctions if Iran follows its guidelines.)
Posted at 6:17 AM