Does Congress get a vote on the Iran deal? It’s complicated.

Next week’s debate will be whether Trump’s Iran deal requires congressional approval. If Trump unblocks funds that the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA) required the President to block, the answer is arguably yes. You can count on Trump to claim, as is his habit, that Article II gives him absolute monarchical power, but Article I, Section 8 gives Congress the enumerated power to regulate commerce with foreign nations, which I would argue includes sanctions. You will also find some support for that view in the dicta of the Supreme Court’s opinion striking down IEEPA tariffs.

If Trump provides Iran with appropriated funds, yes, that should require an appropriation from the House. Only Congress has the enumerated constitutional power to appropriate funds. Trump will, of course, try to draw on some existing appropriation or find funds from a non-appropriated source.

Assuming, as no one should, that this deal survives the next week as Republican senators attack the deal as a surrender and as Trump seeks to reinterpret its terms and sequencing to appease them, things will get even harder. Although this week’s deal makes commitments to lift all U.S. sanctions as part of a yet-to-be negotiated permanent agreement, an agreement that binds future presidents and contravenes existing acts of Congress like the CISADA is arguably subject to Senate ratification under the Treaty Clause. The line-drawing argument around the Treaty Clause has been a long-standing one between Congress and the President. For now, the cease-fire deal by itself probably isn’t a treaty, but an executive agreement.

Past practice is also a guide. When President Obama signed the JCPOA, his deal went to the Senate for a vote–over his strong opposition–in the Iran Nuclear Agreement Review Act. The administration insisted that the JCPOA wasn’t a treaty and opposed the INARA, but Senate leaders agreed to assert their prerogatives through the INARA by a majority vote. A first version of the INARA failed, senators agreed on an amendment with veto-proof support, the Senate passed it, and the President signed it.

Similarly, North Korea sanctions are mandated by statute and are subject to statutory lifting conditions. The problem is that presidents of both parties refused to enforce North Korea sanctions, except for brief periods when North Korea found its way into the headlines, and were never made a serious effort to enforce secondary sanctions against China or Russia or build a global coalition to enforce them. Lifting them, however, is subject to conditions that would effectively require new legislation.