Time to invoke the "nuclear option" to prevent nuclear catastrophe?
Republican Senate Majority Leader Mitch McConnell has been scrambling to find a way to politically embarrass the 42 senators who twice successfully blocked a floor vote on the resolution to disapprove President Obama’s disastrous nuclear deal. The Democratic-led filibusters succeeded last week and again this week. McConnell’s latest plan was to re-introduce the resolution with amendments requiring Iran to recognize Israel and release the American hostages the rogue regime is detaining before any congressionally imposed sanctions can be lifted.
“I will file on an amendment that would prevent the President from lifting sanctions until Iran meets two simple benchmarks: It must formally recognize Israel’s right to exist, and it must release the American citizens being held in Iranian custody,” McConnell said. "At the very least we should be able to provide some protection to Israel and long-overdue relief to Americans who’ve languished in Iranian custody for years."
The outcome was predictable. “Senate Republicans' last gasp,” as CNN described it, ended in failure, as once again the Democratic minority prevailed with its third filibuster. The amendment needed 60 votes just to get past the filibuster but fell short.
The 60-day congressional review period stipulated in the Iran Nuclear Agreement Review Act of 2015 ended on September 17th, when Senator McConnell’s last-ditch effort ran aground.
Senator McConnell’s Democratic counterpart, Senate Minority Leader Harry Reid, gloated in victory. "The issue has been decided," Reid said. "But instead of focusing on the critical issue of funding our government, Sen. McConnell has decided to spend the entire week on something that's already been decided, twice."
Sadly, the Republican Senate majority has allowed the Democratic minority to prevail. They committed several unforced errors.
The Republican Senate majority’s first mistake was not to insist on handling the nuclear deal agreement, known formally as the Joint Comprehensive Plan of Action (“JCPA”), as a treaty, for which the Constitution requires a two-thirds vote of the Senate to approve. The Republican majority forfeited the Senate’s treaty power in favor of the very weak Iran Nuclear Agreement Review Act of 2015. This legislation provides Obama with enormous leverage by being able to veto a resolution of disapproval and have his veto easily sustained by just over a third of the vote in either chamber of Congress. True, if the Senate majority had held fast to the treaty route, Obama would have skirted congressional review altogether. He would have contended that he did not need congressional review or approval of what he could characterize as purely an executive agreement, not a treaty. But at least there would not have been any congressional participation in the process. Future presidents would have had an easier time repudiating the deal if its status had remained solely as an executive agreement. Now, under the terms of the Iran Nuclear Agreement Review Act, Congress’s failure to disapprove the deal within the stipulated time period arguably legitimizes it and elevates the JCPA to a status somewhere above a pure executive agreement that no judicial body would be likely to invalidate.
Compounding their initial error forfeiting the Senate’s treaty advice and consent power, McConnell and the Republican Senate majority then gave the Senate Democratic minority and Obama a free pass. The obstructionists did not have to go on the record by casting their votes supporting the deal on its merits, and Obama did not even have to exercise his veto power.
McConnell inexplicably did not use the so-called “nuclear option” and adopt a procedural rule against the use of the filibuster, as Reid himself did when he was the Senate majority leader. Reid managed to scuttle the filibuster back in 2013 by changing the rules so that Obama’s nominations could glide through to a majority vote. Here we are dealing with a potential once-in-a-lifetime vote on a vital matter of national security. Using the “nuclear option” to force a floor vote on a deal that could lead to a nuclear holocaust should have been a no-brainer, whether or not Obama’s veto of a resolution of disapproval would have been sustained. At least Congress would have been on the record with bipartisan majorities against the deal.
As Senator Marco Rubio said: “We are debating an issue that’s existential to allies of our, that ultimately imperils the security of the world. And if ever there was a time where you would consider something like that, it would be this.”
McConnell also missed an opportunity to alternatively follow the lead of the House of Representatives and submit a resolution stating that a vote to disapprove the Iran nuclear deal is legally premature at this time. The Obama administration has not complied with a key trigger in the Iran Nuclear Agreement Review Act, which required it to provide Congress with all documents relevant to the JCPA before the time period for voting on the JCPA began to run. Congress has still not received the text of the so-called "side deals" between Iran and the International Atomic Energy Agency that bear directly on the inspection verification mechanisms central to the JCPA.
The test now for the Republican majorities in both the House of Representatives and the Senate is what they will do next to put Congress on the record against the deal. First, each chamber should vote on a stand-alone bill requiring Iran to recognize Israel and release the American hostages the rogue regime is detaining before any congressionally imposed sanctions can be lifted. The current sanctions legislation should be extended for at least ten years beyond its current expiration date at the end of 2016, and expanded if Iran is detected cheating or violating the arms or missile embargoes. Senator McConnell should force a floor vote by finally invoking the “nuclear option.” Defeated or not by an Obama veto, at least a bipartisan majority of Congress will be on the right side of these issues.
Second, Congress should go on record endorsing individual state government initiatives to cut off funds to companies tied with the Iranian regime as a sponsor of terrorism. These could include defense companies that do business with the Iranian regime. The Obama administration will probably push back against the states, citing the following provision in the JCPA:
“If a law at the state or local level in the United States is preventing the implementation of the sanctions lifting … the United States will take appropriate steps, taking into account all available authorities, with a view to achieving such implementation.”
If the Obama administration were to push back against the states, it would set up a battle for the courts to decide. The states would have a reasonably good chance of winning since state and local level procurement spending and investment of state taxpayers’ money are involved.
Third, the Senate majority should block any State Department nominees who would be involved in any way in the implementation of the JCPA.
Finally, Congress should look at areas relating to the implementation of the JCPA to defund. It can start by defunding any efforts by the Obama administration to cooperate with Iran, as provided for in Annex III, with respect to civil nuclear technology and “training and workshops to strengthen Iran’s ability to protect against, and respond to nuclear security threats, including sabotage, as well as to enable effective and sustainable nuclear security and physical protection systems.” Helping a country whose leaders continually chant “Death to America” is simply insane.
President Obama may now have his legacy Iran deal, but the American people will have to live with the lethal fallout. Congress at minimum should do what it can to blunt its worse effects.