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Hanoi Redux: the Senate, the Supremes & Pompeo (also, Trump!) on the Iran deal

SAY WHAT YOU WILL ABOUT OBAMA’S DEAL WITH IRAN; what Trump signed with Kim Jong-un in Singapore makes it look like a model of clarity and specificity. For all its flaws, the Iran deal, or Joint Comprehensive Plan of Action (JCPOA), undeniably gained us something. Its inspection terms and sunset clause were serious flaws and might have proven to be fatal ones. Even so, it got Iran to surrender a big stockpile of enriched uranium and make some useful concessions that would slow (but not stop) its path to a nuclear bomb.

By comparison, a year after the Singapore Summit, Trump’s own diplomats can’t even say if Kim Jong-un agreed to denuclearize at all. Some of his own advisors don’t think there should even be another summit. When his own Director of National Intelligence said Kim most likely wouldn’t denuclearize, Trump decided to can him. Trump is freelancing this. So what if the same president who called the JCPOA the “worst deal ever” and withdrew from it makes an even worse deal with His Porcine Majesty? That now seems like a likely outcome of the Hanoi summit, where both North Korea and South Korea are directly appealing to Trump’s vanity, dangling a shiny Nobel Prize to get him to lift sanctions while Pyongyang keeps right on nuking up.

If the President the Constitution’s drafters warned us about elevates the entreaties of foreign flatterers over the advice of his own cabinet and the interests of the American people, and if the cabinet is either too afraid or too opportunistic to stand up to him, it will be up to Congress to be America’s adult supervision.

I. When Pompeo & 47 GOP Senators said Obama’s Iran deal should have been a treaty

The other day, I wrote about Congress’s power to review or stop a bad deal. Some good email feedback to that post caused me to ask more questions of my own, so I want to expand on the subject of Congress’s most obvious check on any bad deal, the Treaty Clause of article II, section 2 of the Constitution. Because two-thirds of the senators present must vote to ratify a treaty, this is a high bar. I strongly doubt, for example, that the President would get a two-thirds vote to relax sanctions or ratify a peace treaty before North Korea disarms, but if he did, a treaty (unlike an executive agreement) would have the force of law. In contrast, this President or the next one could withdraw from an executive agreement, just like Trump did with the Iran deal.

Reasonable people differed over whether the JCPOA should have been a treaty, requiring ratification by two-thirds of the Senate. I believed then that President Obama should have submitted the JCPOA to the Senate for ratification. Obama didn’t do that because he knew he didn’t have the votes. Based on the State Department criteria I linked to yesterday, I believe that a North Korea deal that relaxes sanctions or makes other significant concessions should also be submitted to the Senate for ratification. President Trump will be tempted to bypass Senate ratification today for the same reason Obama bypassed Senate ratification in 2015. In both cases, however, that’s an evasion of the Constitution’s requirements. And in this case, he’d be bypassing ratification by a Senate controlled by his own party.

It only occurred to me after I published my previous post to research what Republicans said just four short years ago about whether the JCPOA should have been a treaty. The answer was a more interesting one than I’d expected. For example, you may remember when 47 Republican Senators wrote to the Supreme Leader of Iran to inform him that the JCPOA should have been submitted to the Senate for ratification as a treaty. At the time, I criticized the Senators for bypassing the President and writing directly to a foreign head of state, despite my belief that Obama should not have bypassed the Senate. So imagine my delight when I found that former Congressman and current Secretary of State Mike Pompeo led House Republicans’ attack on the JCPOA, and wrote this in an op-ed he co-authored and submitted to the Washington Post:

The Iran Nuclear Agreement Review Act of 2015, which requires the president to submit to Congress the nuclear agreement reached with Iran, represents an exceptional bipartisan congressional accommodation. Instead of submitting an agreement through the constitutionally proper mechanism – as a treaty requiring approval by a two-thirds majority in the Senate – the act enables President Obama to go forward with the deal unless Congress disapproves it by a veto-proof margin. Unfortunately, the president has not complied with the act, jeopardizing his ability to implement the agreement. [WaPo, emphasis mine]

Pompeo wrote this after revealing that the Obama administration had withheld two key side agreements from Congress until after it agreed to pass the INARA, in lieu of ratifying it as a treaty.

“I think the president has broken the law – that is, he hasn’t complied with his obligations under the legislation allowing Congress to review the deal.”

“If Obama lifts sanctions against Iran without Congress’ approval, “the American people will be furious and properly so because they will have a president who is brazenly violating the law with knowledge and intent.” [link, HT]

Pompeo repeatedly savaged the Obama administration for inducing Congress to vote on the INARA without telling it about the side-deals, and he made a good point. The INARA required the President to submit the Iran agreement to Congress for approval, along with “all related materials and annexes.” But given Trump’s expressed intent to negotiate one-on-one with Kim Jong-un, how can Congress possibly know what it’s voting on? The only U.S. official with direct knowledge of the terms of any deal is a man who frequently forgets where he put the truth and seldom goes back to look for it.

It gets even better. Trump himself started a Twitter war with “Little Bob Corker,” who was Chairman of the Senate Foreign Relations Committee until his recent retirement, over Corker’s support for the INARA. But the alternatives to the INARA would either have been a better deal than the JCPOA—and consequently, a far better deal than Singapore—or Senate ratification under the Treaty Clause. Admittedly, Trump has never been sensitive about his own inconsistencies, but other politicians are. Their own prior statements will make it politically humiliating for many Republicans to deny that a deal lifting sanctions, withdrawing U.S. forces, or reducing U.S. commitments to its allies would also amount to a treaty, and would also require (an unlikely) Senate ratification. Like the President’s recent emergency declaration, unratified concessions of this magnitude will require Republicans to choose between the President and the Constitution. Also like that emergency declaration, Republicans should be concerned that by acceding to Trump, they would also be weakening constitutional limits on the powers of a future President Warren or Biden.

The one area where Trump has the most constitutional power would be to grant Pyongyang diplomatic recognition, but this would be immensely unpopular in Congress before Pyongyang disarms and makes significant humanitarian reforms. Rather than re-argue the importance of keeping human rights on the agenda, I’ll just link to some of the most outstanding commentary on this point, from liberal human rights activist John Sifton, conservative human rights activist Olivia Enos, and Victor Cha, the man Trump should have nominated to be his Ambassador to South Korea. All three arguments emphasize that the law requires Pyongyang to make humanitarian reforms before the President can suspend or lift sanctions.

Furthermore, diplomatic recognition is of little value to Pyongyang without a relaxation of sanctions. (Indeed, the U.S. is more useful to Kim Jong-un as an enemy than as a friend. It wants the free use of our banking system and enough disengagement from South Korea to extend its nuclear hegemony over Seoul.)

II. Democrats & Republicans both sound skeptical about Hanoi

Last week, I cited a growing body of evidence that Democrats in Congress are taking a tough-minded stance on Trump’s negotiations. And just as Senate Republicans eventually broke with Trump over the shutdown, Senate Republicans now seem prepared to check whatever deal Trump cuts with Kim Jong-un. Those who have expressed an opinion suggest that Trump should submit any deal to the Senate for ratification. Last week, I linked to an article from last year in which Senators Corker, Tillis, Cornyn, and Graham said that a North Korea deal would need Senate Ratification or some form of congressional approval. It quoted Senator McConnell as calling for ratification if the agreement is “significant.” I’ve since found a June 2018 article from The Hill, quoting Senator Jim Risch (R-ID) as insisting that “the Trump administration assured him a North Korea agreement will come to the Senate as a treaty.” He continued:

“The president of the United States and his team clearly understand the constitutional responsibility of both branches of government,” Risch said. “The president, the vice president and the secretary of State have all told me separately that their intent is to put together a treaty that will be submitted to the United States Senate under the constitution for ratification.”

And who is Jim Risch? In January, following the retirement of “Little” Bob Corker, he became the new Chairman of the Senate Foreign Relations Committee.

House Democrats have also escalated their calls for more briefings on what, exactly, Trump is prepared to concede or demand in a letter from Foreign Affairs Committee Chairman Elliot Engel (D-NY), Adam Smith (D-WA), and Adam Schiff (D-CA), accusing the administration of withholding information from Congress (Hat tip, Hamish Macdonald). It’s yet more evidence that Democrats are lining up behind a hawkish and skeptical view of Trump’s negotiations with Kim.

Now admittedly, it’s hard to say without advance knowledge of what Trump will concede whether his agreement with His Porcine Majesty will trigger the Treaty Clause legally, but politically, Republicans who try to defer the ratification of significant concessions, particularly on sanctions relief, will find their positions widely and deservedly ridiculed. I don’t expect the Republican dam to break until we see what Trump agrees to in Hanoi, and it’s obvious that it’s a worse deal than John Kerry made in Vienna.

III. How a Treaty of Hanoi gets to the Supreme Court

So how, specifically, can Congress go about holding the administration to the Treaty Clause? As it turns out, a non-binding resolution like the one co-sponsored by Senators Menendez and Gardner may be a first step. The reason for that arises from the 1979 Supreme Court case of Goldwater v. Carter, in which Senator Barry Goldwater, joined by 14 other Republican senators, sued President Carter over his unilateral abrogation of a mutual defense pact with Taiwan. A divided Supreme Court remanded the case to the District Court with instructions to dismiss it as a “political question” that was not ripe for judicial review. But there were some important differences between that case and the present situation, and deciphering the Supreme Court’s thicket of concurring and dissenting opinions makes it difficult to say with certainty just what the Court held.

Goldwater was one of those fragmented Supreme Court cases where you have to draw a diagram to guess how the Court’s ruling would control a hypothetical Treaty of Hanoi today. Four justices (Rehnquist, Burger, Stewart, and Stevens) voted to send the case back to the District Court for dismissal as a political question, but implied that they only did so because Carter’s action was the abrogation (rather than the creation) of a treaty, a procedure on which the Constitution is silent. Two justices (White and Blackmun) would have heard the case on the merits, and implied that the President did not have the power to unilaterally abrogate the treaty. Another justice (Brennan) would have heard it, and implied that the President did have the power because abrogation of the treaty was incidental to giving diplomatic recognition to China, something that is within the President’s enumerated powers. A fourth justice (Powell) would have heard the case if a majority of Congress had set up an impasse between the political branches by passing a resolution stating that the President lacked the power to abrogate the treaty without the advice and consent of two-thirds of the Senate.

Thus, if the Court in Goldwater had instead considered a case in which the President made a treaty that intruded into Congress’s enumerated powers (ie., unilaterally repealing a statute regulating foreign commerce), and Congress had expressed (even in a non-binding resolution) that the President lacked the power to effect that repeal, a majority of the justices would probably have voted to hear the case. Congress could then make a strong case that President Trump had violated the separation of powers and hold that the NKSPEA remained in force as enacted. An expression of the will of a majority of the Congress may be a necessary prerequisite to asking the Supreme Court to weigh in. That might take the form of a non-binding resolution like Menendez-Gardner.

IV. Is it still too early to count the votes? Probably.

Of course, the President could veto a resolution that passes by a simple majority. This raises an interesting question (well, interesting to me, at least). Could Trump veto this resolution to prevent the Court from hearing the case? I’d argue “no,” because in Goldwater, Justice Powell was concerned with whether a majority of the Congress had expressed a view, not whether it had enacted legislation by overriding a veto. By effectively requiring Congress to vote by a two-thirds margin, it would be turning the burdens of the Treaty Clause upside down. For the Court to say that two-thirds of both houses of Congress would have to vote for a resolution against the President’s treaty for the Court to hear a challenge that it was a treaty, requiring a two-thirds Senate ratification, would be an absurd result.

It might also take the form of new legislation codifying sanctions against North Korea, similar to the Comprehensive Anti-Apartheid Act, which passed after Congress overrode a veto by President Reagan.

It’s also a close question whether the President would have the votes to override such a resolution or a bill that legislatively re-imposes sanctions on North Korea, effectively voiding a Treaty of Hanoi. Both of the comprehensive North Korea sanctions laws passed Congress by overwhelming, veto-proof margins. The North Korea Sanctions and Policy Enhancement Act of 2016 started in the House in a slightly different form with 147 co-sponsors (including Mike Pompeo), passed by 418 to 2, went to the Senate, and passed by 96 to 0. Even Bernie Sanders issued a statement from New Hampshire, where he was campaigning, saying he would have voted for it. The follow-on bill that amended and strengthened the NKSPEA was Title III of the Countering America’s Adversaries Through Sanctions Act of 2017. It passed the House as a stand-alone bill by 419 to 1, was then combined with Russia and Iran sanctions in the CAATSA, passed the Senate by 98 to 2, and then passed the House by 419 to 3. Both bills passed with great speed. These margins are obviously veto-proof, but it remains to be seen how many Republicans would switch their votes if the White House asked them to in the middle of a raging controversy over the Mueller report and Russian influence. I don’t propose to predict anything until I see what Trump concedes, in exchange for what promise.

V. The last word

I’ll give the last word to Senators Cory Gardner (R-CO) and Ed Markey (D-MA), the Chairman and Ranking Member of the Senate Foreign Relations Committee’s Asia Subcommittee. This, by the way, is a model of bipartisan unity in the exercise of effective congressional oversight. Ironically, Trump’s embrace of Kim Jong-un may well reinforce, rather than weaken, a bipartisan consensus for a tougher and more humane North Korea policy.

“I worry a lot” about the lifting of sanctions on Pyongyang without seeing concrete steps being taken to end North Korea’s nuclear weapons and expanding missile programs, Sen. Cory Gardner (R-Col.) said at the Woodrow Wilson Center in Washington, D.C. on Thursday.

“Maximum pressure must be applied to the maximum effect” before major concessions are made on the American side, Gardner, the chairman of the Senate Foreign Relations subcommittee on East Asia, the Pacific, and international cybersecurity policy, said. China, he said, would need to play a key role in a plan going forward. China has voted in the Security Council to abide by the sanctions imposed by the U.N. Security Council.

“China and the United States are not exactly on the same page” when it comes to dealing with a North Korea remaining a nuclear power or America’s future role on the peninsula.

“Have [the North Koreans] provided us an inventory … let any [International Atomic Energy Agency] inspectors in,” Sen. Edward Markey (D-Mass.), the subcommittee’s ranking member said, “I’m not optimistic” about these talks changing the reality on the ground.

Markey and Gardner said for decades the Kim family has pursued “a rope-a-dope strategy” when it comes to dismantling Pyongyang’s nuclear and missile programs – North Korea saying it would do something but did little or nothing.

The pair also expressed concern that there had been little diplomatic groundwork laid for this second summit, leaving allies and partner, as well as the Congress in the dark, on exactly what the United States is looking for in Hanoi.

“Japan is still wondering what the objectives of the United States are” going ahead, Markey said. If it is tearing down Pyongyang’s intercontinental ballistic missile program, that leaves Tokyo vulnerable to shorter range missile attack.

The same question about future vulnerability applies to whether the North would be allowed to maintain its current nuclear stockpile or have it destroyed, as was the case with weapons the Soviet Union stored in Ukraine, in any future agreement.

These concerns over exposure to attack are shared by South Korea.

“We actually don’t know the negotiating goals of the president,” he added.

Gardner said when he visits the Indo Pacific he is asked by allies and partners, “Where are the Bob Doles, the Danny Inouyes … to help reassure our allies and friends.” The two former senators were noted for their keen interest in the region and bipartisan approach to international and security affairs.

Note, by the way, that Senator Gardner recently set up a Twitter feed called “Asia Reassurance.” It’s an interesting and obviously significant choice of a name, and well worth following.

“We have to see real action” on North Korea’s part before even considering a peace treaty with Pyongyang putting a formal end to the Korean War, Markey said. One of Kim’s goals is to sign a peace treaty, signifying his regime’s importance as a world power.

“The details matter,” Markey said. An armistice between the United Nations and North Korea has been in place since 1953.

“Even in a perfect world” where North Korea agreed to inspections of its nuclear facilities, dismantling of its weapons programs and a peace treaty were signed, Gardner would press the point that an American presence in Korea was important for stability in the region.

“Congress will fight like hell” over any proposal coming from the talks in Hanoi about withdrawing American forces from Korea, Gardner added in answer to an earlier question. He termed the idea “a massive, monumental mistake.” [U.S.Naval Institute]