Iran Deal: Could a Concerned Congress Hinder Negotiations?

If a comprehensive deal is to be reached, Obama and Congress will need to work together.

As the complex interplay of issues and actors that will determine the outcome of the ongoing negotiations between Iran and the P5+1 heats up, many questions still remain unanswered. One of the important actors, whose role has been relatively underanalyzed and is often not properly acknowledged or understood, is the United States Congress. Congress enjoys a unique foreign-policy role in the American political system and, in the case of the current Iran talks, essentially has the power to make or break a potential final agreement. While observers often tend to focus on the actions of American presidents alone, it is not just the president who determines U.S. foreign and national security policies. Congress enjoys tremendous constitutional foreign-policy prerogatives as well and its backing is crucial in determining the fate of the president’s foreign-policy objectives. Mastering the challenges and prospects of the current negotiations with Iran will be no different and highly depend on the successful cooperation between the American executive and legislative branches.

What is the foreign-policy role of Congress?

The American foreign-policy mechanism is marked by an intricate interaction between different branches of government that were intentionally designed to keep each other in check. The framers of the American Constitution, having fought the British king in the revolutionary war, were reluctant to create an all-powerful presidency. Instead they envisioned a government based on a partnership between the executive and legislative branches. Accordingly, the Constitution divides defense and foreign-policy-related powers between both the president and Congress, creating, in constitutional scholar Edward Corwin’s famous words, “an invitation to struggle for the privilege of directing American foreign policy.”

Article I, Section 8 of the Constitution grants Congress the power to declare war, appropriate funds, fund the military, regulate commerce with foreign nations, and give advice and consent in the ratification of treaties as well as the appointment of ambassadors and other officials (incl. the secretaries of state and defense). In comparison, the president actually enjoys a shorter list of powers. Article II, Section 2 names him Commander-in-Chief of the armed forces and empowers him to make treaties (“by and with the advice and consent of the Senate”) and appoint ambassadors and senior officials (“by and with the advice and consent of the Senate”). Former Supreme Court justice Arthur Goldberg, who also served in the Kennedy and Johnson cabinets, even went so far as to state that "at best, the executive's role in the foreign affairs of this nation is a shared role with Congress” and even though “the President leads our foreign relations,” “it is Congress that ultimately determines foreign policy."

From sanctioning to negotiating with Iran

Congress can assert its foreign-policy role through a number of ways. One of them is the imposition of economic sanctions. It can do so based on its constitutional power to “regulate commerce with foreign nations” (the president can impose economic sanctions under a separate authority provided by federal laws). In the case of Iran, a large number of sanctions have been imposed both by congressional acts as well as presidential executive orders. The first sanctions were imposed in the aftermath of the 1979 takeover of the U.S. embassy in Tehran. Many sanctions have been added since based on a number of issues such as support for terrorism, human-rights abuses, and the pursuit of its nuclear program. As a result, the collection of Iran-related sanctions has developed into a highly complex and multilayered legal minefield today.

While Iranian government officials have in the past often mocked the effectiveness of sanctions, both the president and Congress are in agreement that more recent sanctions that dramatically reduced Iran’s sale of oil, its main source of foreign currency, and restricted its access to the international banking system have created unprecedented pressure on the Iranian government and caused it to change its negotiating stance. Strengthened by an EU boycott of Iranian oil in 2012, they cut the Iranian government’s revenues to their lowest level in 25 years. President Rouhani has complained that when he assumed office last year, the state coffers of the country possessing the world’s largest combined oil and natural gas reserves were virtually empty. Facing severe cash problems, Iran’s current pursuit of a comprehensive nuclear deal is therefore fueled by an eagerness to obtain comprehensive sanctions relief. Congress’s role looms large over this issue, because it is the only body that can modify or repeal the sanctions it has codified into law.

The road to the interim nuclear agreement (Joint Plan of Action)