The pending Corker-Menendez bill has been described as requiring Congress' approval on the proposed deal with Iran. This article quotes Cornell law professor Michael Dorf (Dorf on Law) as raising a question whether it is constitutional.
My first reaction was: yes, it's unconstitutional. Congress cannot require the President to obtain its approval on an international agreement. The Constitution provides two ways for the U.S. to make international agreements: (1) through the advice-and-consent of a supermajority of the Senate, as prescribed in article II, Section 2; and (2) in some cases — principally for short-term agreements and nonbinding arrangements — by the President alone, under the President's Article II, Section 1 executive power. It's true that in modern practice, approval of Congress can sometimes (especially in the case of trade agreements) substitute for Senate supermajority approval (though I deny that that is part of the original understanding). But in no circumstances does the Constitution or practice provide for Congress' approval as the exclusive route. As a result, if Congress purports to make its approval a condition of entering into an agreement, it infringes the constitutional power of either the Senate-plus-President or the President alone (depending on the circumstances) to make international agreements.
But on further reflection, I come to the opposite conclusion. The Corker-Menendez bill does something different. The prospective deal with Iran contemplates that the President will lift U.S. sanctions on Iran. That in turn depends on the President having statutory discretion to lift the sanctions, as conveyed in prior sanctions legislation. As I understand it, the Corker-Menendez bill simply removes the President's discretion to lift sanctions for a 60-day review period after finalization of a deal (and permanently thereafter if Congress passes additional legislation). Thus the bill is about implementation of the agreement, not approval of the agreement.
That seems comfortably within Congress' power. I assume the original sanctions legislation is within Congress' power to regulate commerce with foreign nations. Congress is not obligated to give the President discretion to lift the sanctions without Congress' approval. As a result, Congress should also be able to remove the President's discretion if it changes its mind. That's all Corker-Menendez does.
It's possible that matters would be different if the Iran deal took the form of a treaty. Arguably Congress is obligated to implement a treaty, because by Article VI a treaty is the supreme law of the land. But it appears that the arrangement with Iran is not even going to be a binding agreement. At most it is a commitment by this President to lift sanctions to the extent that is within his power. Obviously such an arrangement imposes no Article VI obligation on Congress to give (or allow the President to retain) power to implement his commitment.
In sum, Congress cannot require its approval as a condition of entering into an international agreement. But, so long as Congress acts within its enumerated powers, it can refuse to give the President authority to implement an agreement (temporarily or permanently). There may be doubt in the case of a treaty, which is the supreme law of the land and so might impose implementation obligations on Congress. But an agreement that is not part of the supreme law of the land imposes no such duties.
(To be clear, I'm not disagreeing with anything Professor Dorf is quoted as saying; I'm just trying to answer the question he poses).
Posted at 6:59 AM