The first great conflict of Joseph Biden’s presidency will erupt on the field of foreign policy. In his most significant foreign policy achievement, Donald Trump withdrew from Barack Obama’s Joint Comprehensive Plan of Action (JCPOA), which traded limits on Iran’s nuclear program for billions of dollars and an end to Western economic sanctions. In his knee-jerk rejection of all things Trump, the former Senator and Vice President has promised that he would immediately re-join the JCPOA in his hopeless quest for a peaceful settlement with the mullahs in Teheran.
Re-entering international agreements terminated by Trump sits at the top of the Biden agenda. “The United States will rejoin the Paris Agreement on day one of my presidency,” Biden promised in December 2020, referring to the global climate change agreement. Biden envisions the same for U.S. participation in the World Health Organization, dismissed by Trump for its coverup of the COVID-19 pandemic’s origins in China, and the JCPOA. Agreed upon by China, France, Germany, Russia, the U.K., the European Union, and the U.S. in April 2015, the agreement codified Iran’s promise not to develop nuclear weapons in exchange for an end to Western economic sanctions. Rather than use the billions in released dollars to the benefit of their impoverished people, the mullahs in Tehran sent the cash abroad to fund terrorists in Lebanon, its government allies in Syria, and rebels in Yemen. President Trump wisely pulled the U.S. out of the agreement in May 2018 and imposed, with congressional acquiescence, even harsher sanctions that have pushed Iran to the brink of economic collapse. Iran’s ability to foment terrorism and undermine our allies in the region, such as Israel, Saudi Arabia, and Egypt, has suffered as a result.
Despite these gains from Trump’s Middle East strategy, Team Biden has announced its intentions to re-enter the JCPOA. This would only reward Iranian malevolence. The mullahs have never given up their nuclear ambitions; after hiding a covert nuclear weapons program, it greeted European efforts to keep the JCPOA alive by building up its enriched uranium stockpiles beyond approved limits. Nevertheless, Biden announced in December, “If Iran returns to strict compliance with the nuclear deal, the United States would rejoin the agreement as a starting point for follow-on negotiations,” Biden has announced. According to media reports, Iran is demanding that the incoming administration immediately rejoin the agreement and lift all sanctions unconditionally, without any corresponding freeze in Iranian uranium enrichment. It also intends to seek compensation for the economic losses caused by the Trump administration sanctions. Chutzpah apparently is not just an Israeli concept.
Republicans can attempt to stop the JCPOA first by demanding adherence to the Constitution. In yet another demonstration of his disregard for the Constitution, President Obama refused to submit the agreement to the Senate as a treaty. Article II of the Constitution, however, recognizes only a single manner for the federal government to enter international agreements: the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” but only if “two thirds of the Senators present concur.” Article II’s plain meaning and history requires that any agreement that restricts the nation’s sovereignty must undergo Senate approval by a two-thirds supermajority.
Joe Biden himself used to believe that the Senate had to consent to all significant international agreements, at least when Republican presidents made them. “With the exception of the SALT I agreement, every significant arms control agreement during the past three decades has been transmitted to the Senate pursuant to the Treaty Clause of the Constitution,” Senators Biden and Jesse Helms declared about the 2002 Treaty of Moscow, in which the U.S. and Russia agreed to deep reductions in their nuclear arsenals. “No constitutional alternative exists to transmittal of the concluded agreement to the Senate for its advice and consent.” In the 1980s, Biden even attacked President Reagan’s missile defense programs because they went beyond the terms of the Anti-Ballistic Missile Treaty with the Soviet Union, and therefore required a new amendment to the treaty. He went so far as to pen a scholarly article declaring the treaty power to be “a constitutional partnership” between the President and Senate.
Republicans in the Senate can force President Biden to live up to his own words. The Constitution requires that treaties receive supermajorities to guarantee that they are backed by the highest levels of political consensus. “The vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole, or a portion, of the legislative body in the office of making them,” Alexander Hamilton explained in Federalist No. 75. Allowing a single man to make international agreements, he warned, would not just risk unwise decisions, but also open the possibility of the personal corruption of a President who might be tempted either by avarice or ambition.
The Biden administration is sure to resurrect Obama’s claim that the JCPOA did not amount to a treaty because it did not constitute a legally-enforceable agreement. The JCPOA was not even “a signed document,” the Obama State Department explained, but just a series of “political commitments.” But in 2015 congressional hearings, the administration more candidly admitted that it did not comply with the Constitution’s treaty process because it could not persuade two-thirds of the Senate of the JCPOA’s merits. “Well, Congressman, I spent quite a few years trying to get a lot of treaties through the United States Senate, and it has become physically impossible,” Secretary of State John Kerry told the House Foreign Affairs Committee. “That’s why,” he added. “Because you can’t pass a treaty anymore.” Kerry has joined the Biden administration as “climate czar.”
Republicans responded to the Obama administration’s constitutional delinquency by enacting the 2015 Iran Nuclear Agreement Review Act. While INARA unfortunately reversed the Constitution’s presumption against entering international agreements—it required Congress to pass a law to reject the JCPOA, subject to presidential veto—it at least forced all members of the House and Senate to vote on the record on whether to support such a flawed agreement. Republicans in Congress could rightly demand that Biden submit a renewed JCPOA to Congress for another up-or-down vote, or risk mandatory sanctions on Iran that would doom any fresh nuclear deal.
