The greatest obstacle to returning to the Iran deal isn’t Iran — it’s Congress

Since assuming office, President Biden has been attempting to negotiate a return to compliance with the Iran nuclear deal known as the Joint Comprehensive Plan of Action (JCPOA), which President Trump walked away from in 2018. For months, press reports have signaled that a return to the deal was close at hand, and then not, and then close to happening again. 

The opaqueness of the process, and uncertainty about what Tehran ultimately wants or can agree to, has fed skepticism about whether an agreement is forthcoming. Beyond the details of the deal being negotiated, it’s hard to imagine what lasting benefit there is for Iran in agreeing to return to a deal that has become so politicized in U.S. politics that any hypothetical Republican successor to Biden — who is currently polling around 40 percent approval — is likely to tear it up on day one of his or her presidency.

But if we suspend our disbelief that the negotiating teams can succeed in overcoming doubts and disagreements, what legally must follow in Washington further complicates a return to the deal: Congress gets a say. While the Obama administration was negotiating the original deal in 2015, Congress passed and the president signed into law the Iran Nuclear Agreement Review Act (INARA). The law gave Congress oversight of the JCPOA. 

INARA included a host of periodic reporting requirements and certifications that the executive branch would have to provide on Iran’s compliance with the deal. Additionally — and of little consequence since the deal was originally inked — is a provision within INARA that requires the president to submit any agreement made with Iran that relates to its nuclear program to Congress for a 30-day period of review. During that period, were Congress to pass a Joint Resolution of Disapproval (JRD), it would nullify the president’s ability to lift any sanctions on Iran associated with the deal. INARA essentially gave Congress veto power over the JCPOA, or any new or amended deal with Iran.

What remains legally uncertain is, what happens if the United States and Iran both return to compliance with the original JCPOA — would that constitute a “new deal,” requiring submission to Congress? Legally, it’s not clear. Politically, it’s hard to imagine the Biden administration dodging congressional oversight on a matter of such intense political dispute. In May, Biden’s lead negotiator, Rob Malley, testified to the Senate Foreign Relations Committee that any deal the administration reached would be submitted to Congress under INARA, initiating the 30-day review period and potentially enabling Congress to pass a JRD and kill the deal.

Providing that a deal is reached, and is submitted to Congress for review, would it survive? The short answer — and an evergreen one when dealing with the legislative branch — is probably, but it’s going to be painful. 

Any senator can introduce a JRD, though it would require 60 votes to pass. The “no” votes may not be there, but any vote certainly could be closer than the original vote against JCPOA in 2015, in which the Republican-led Senate could not muster the necessary 60 votes to approve the resolution. Sen. Bob Menendez (D-N.J.), chairman of the Senate Foreign Relations Committee, is a longtime skeptic of the deal and has been openly critical of the negotiations process to return to the deal. 

A growing public perception that Iran is stalling for time or is attempting to hide undeclared nuclear activity could drive anti-JCPOA sentiment. And if it passed the Senate, it would be privileged in the House, meaning the House would be compelled to vote on it too.

So, hypothetically, if it passes the Senate, what sayeth the House? In an election year, in which many centrist seats in the House are up for grabs, the House conceivably could pass a JRD against the deal. In April, 18 House Democrats signed a letter expressing concerns about returning to the JCPOA; five of them felt strongly enough to hold a press conference to talk about it. Eighteen Democrats voting with Republicans is more than enough to pass a resolution in the House, where only a simple majority is needed. 

Yet, if a JRD passed in the House and Senate, the president could veto it. A veto override requires a two-thirds majority of both chambers of Congress: 67 senators and 290 representatives. It’s at this stage that Congress almost certainly does not have the votes to override a veto, enabling the United States to return to the deal. A similar situation occurred in 2015, when 25 Democrats voted against the deal but ultimately did not have the numbers to override a potential veto.

After much legislative gnashing of teeth and continued politicization of our Iran policy (echoing 2015), the United States could re-enter the JCPOA. The political pain associated with the process would exact a cost, though. Good politics is corrosive to good policy. The continued polarization of Iran policy in U.S. domestic politics further constrains the U.S. foreign policy toolkit, limiting Washington’s ability to address the underlying problem: how to prevent Iran from obtaining a nuclear weapon.

There can be little doubt now that we’ve arrived at this moment because of decisions made in the last administration — decisions that will reverberate well beyond domestic political considerations. Though a return to the deal is politically unpalatable, it still remains the best option for preventing Iran from building a nuclear weapon in the near term. The “maximum pressure campaign” policy instituted by President Trump following his 2018 withdrawal from the JCPOA failed to drive Iran into making more concessions. 

It had every opportunity to succeed and was even abetted by chance: the COVID-19 pandemic was a force multiplier that brought Iran economically to a fever-pitch crisis, and through it all, Tehran continued to advance its nuclear program, its ballistic missile and drone development, its support to terrorists and regional proxies, and threats to freedom of navigation in the maritime domain. 

Leaving the JCPOA may have cost us the most precious commodity: time. And now, out of time, out of options, it’s hard to see how we’re better off. Let Congress consider that.

Jonathan Lord is a senior fellow and director of the Middle East Security program at the Center for a New American Security (CNAS). He previously served as a staff member for the House Armed Services Committee; as the Iraq country director in the Office of the Under Secretary of Defense for Policy; and as a political military analyst in the Department of Defense. Follow him on Twitter @JonathanLordDC.