With more specifics available on the emerging deal between the U.S. and Iran, it’s possible to have some less-speculative constitutional thoughts.  Here are mine:

(1)  The “deal” announced last week is itself clearly constitutional.  Despite the speculation beforehand, it is obviously a non-binding arrangement, and indeed is expressly a preliminary framework for an agreement to be reached in the future.  As the State Department’s “Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program” describe:

These elements form the foundation upon which the final text of the JCPOA will be written between now and June 30, and reflect the significant progress that has been made in discussions between the P5+1, the European Union, and Iran. Important implementation details are still subject to negotiation, and nothing is agreed until everything is agreed. We will work to conclude the JCPOA based on these parameters over the coming months.

In short, it is a step in the negotiations, nothing more.  Similar outlines of future agreements are common in negotiations, variously called terms sheets or memorandums of understanding, and often leaving not only details but sometimes major points open.  (Thus, the fact that the U.S. and Iran appear to have different views on when sanctions would be lifted under the agreement is — contrary to some commentators — not remarkable).

As a result, the announcement of “parameters” for a future deal is easily within the President’s power to negotiate treaties and otherwise conduct diplomacy for the U.S.  Some scholars have argued that, as an original matter, the Senate should be more closely involved in treaty-making during the negotiation stage, but as I argue here (pp. 138-141) that view is not consistent with the Constitution’s text or with the historical meaning of “advice and consent,” a requirement which can be satisfied by after-the-fact review and approval.  So in fact the President isn’t under any obligation even to announce the current status of the negotiations, much less to involve the Senate at this point.

(2)  The more difficult question is whether Senate approval is required once a final deal is reached.  The President has indicated he will not seek Senate approval on the ground that even the final deal will be non-binding.  The State Department “parameters” strongly suggest that course by calling the proposed deal a “Joint Comprehensive Plan of Action” rather than a word that connotes a binding agreement such as such as “Convention” or “Compact.”

In general, as sketched here, my view is that the President may enter into non-binding agreements on his independent constitutional authority (so long as he is unmistakably clear that the agreement — or “joint plan of action” — is truly non-binding).  The requirement of clarity arises because if the U.S. position is ambiguous and the other party wrongly understands the agreement as binding, international law might treat the agreement as binding despite the U.S. intent.   And a binding agreement of this duration and magnitude would clearly require Senate approval, as it meets the eighteenth-century definition of a “treaty.”

(3) Despite my general view that the President can make non-binding agreements, I have increasing reservations about his authority to make this particular agreement.  As presented in the State Department parameters, it has two troubling attributes.

First, the U.S. would undertake very specific commitments — principally to lift sanctions in the event Iran complies with a set of specific obligations.  As the parameters state:

Sanctions

  • Iran will receive sanctions relief, if it verifiably abides by its commitments.
  • U.S. and E.U. nuclear-related sanctions will be suspended after the IAEA has verified that Iran has taken all of its key nuclear-related steps. If at any time Iran fails to fulfill its commitments, these sanctions will snap back into place.
  • The architecture of U.S. nuclear-related sanctions on Iran will be retained for much of the duration of the deal and allow for snap-back of sanctions in the event of significant non-performance.

These commitments are phrased in binding language (Iran “will” receive sanctions relief after completing its obligations; the sanctions “will be suspended.”).  Further, the statement that the sanctions will “snap back into place” if “Iran fails to fulfill its commitments” heavily implies that the sanctions will not come back into place (by snapping or otherwise) if Iran does fulfill its commitments.  Even worse (from the perspective of claiming a non-binding agreement), the parameters indicate that:

A dispute resolution process will be specified, which enables any JCPOA participant, to seek to resolve disagreements about the performance of JCPOA commitments.

To be sure, a dispute resolution process can accompany a non-binding agreement, but it is more commonly associated with binding agreements.

Even if the President makes clear to everyone that the obligations (on both sides) are non-binding, the degree of specificity is problematic because of the second key feature: the agreement is for a long term (10 and in some cases 15 years).  Again, this term is not only for Iran’s undertaking regarding its nuclear program, but also for the U.S. forbearance on sanctions so long as Iran remains in compliance.

The combination of specific undertakings and a long term is troublesome because the term extends far  beyond the President’s term in office.  As a result, it is hard to explain the theory of the “plan of action.”  Where the term is short, it makes sense for the President to undertake (in a non-binding way) certain specific actions (so long as they are within the President’s independent power), because the President can personally assure that they occur.  So, for example, assuming the President has delegated power to lift the sanctions on Iran, I have little doubt that the President can assure Iran he will exercise his power to lift the sanctions if Iran takes certain actions.  This makes perfect sense as a non-binding “joint plan of action.”  There’s no need for it to be binding on the U.S. because the President puts his own credibility at stake.

Likewise, where the U.S. undertakings are vague, open-ended or insubstantial, a non-binding agreement makes sense as an aspirational statement even if given a long term.  The President in that case is not really promising anything he cannot personally deliver because he is not promising anything specific.

The problem comes when specific undertakings are combined with a long term, as in the contemplated deal with Iran.  In this situation, the President is promising something he cannot deliver.  He is promising that sanctions will not be reimposed after he leaves office so long as Iran remains in compliance.  But the President alone cannot make this promise on behalf of the United States (that would require a binding treaty), and it’s pointless to make this promise on behalf of himself personally.

Is making the promise in these circumstances unconstitutional?  Perhaps.  It is not clear why the President would think it appropriate to promise something he cannot deliver.   One argument might be that the President is in fact trying to create a binding agreement without saying so.  Another more plausible one is that the President is trying to create the effect of a binding agreement by making it practically difficult for his successor to depart from it.  As argued above, the former is plainly unconstitutional.  The latter, it seems, requires further thought.  Maybe it is part of the President’s diplomatic power; Presidents have various ways to create conditions that are hard to change, and it’s not obvious all or any of them are unconstitutional.  But maybe it infringes the Senate’s treaty power by creating something that is too much like a treaty.  In any event, I am least persuaded that the deal’s constitutionality is not assured merely if it is non-binding.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution.  This article originally appeared at:  http://blog.tenthamendmentcenter.com/2015/04/the-constitution-and-the-iran-deal/