Biden may be plotting to keep Congress out of the Iran nuclear deal

Negotiators from Iran, the United States and the European Union have once again nearly concluded indirect talks over the “final text” of a nuclear deal. Like the 2015 deal formally known as the Joint Comprehensive Plan of Action (JCPOA), the new deal imposes temporary restrictions on the Iranian nuclear program in exchange for broad sanctions relief.  Though the talks appear to have reached another impasse, they could rapidly conclude in the coming weeks if Iran decides to show flexibility.

As it prepares to market the deal to a skeptical Congress, the Biden administration has hinted that negotiations in Vienna did not result in a new agreement, but merely all sides returning to compliance with the JCPOA. This may seem likely a purely semantic point but may actually be a calculated effort to avoid a congressional vote after a review of the nuclear deal, as required by the Iran Nuclear Agreement Review Act of 2015 (INARA).

In May, the State Department Special Representative for Iran Rob Malley pledged to submit any prospective agreement with Iran for congressional review. INARA specifies that within five calendar days after reaching any agreement with Iran relating to its nuclear program, the president must transmit the full agreement to Congress. INARA also lays out procedures for congressional review and an expedited process for voting on the deal if Congress so chooses.

The Biden administration may still be hoping to avoid a congressional vote by claiming that it is merely returning to the JCPOA, which went through the INARA review process in 2015. Thus, the White House may try to argue that, while they are submitting the text of an agreement for review there is no need for Congress to vote on it again. Democratic leadership in Congress may be tempted to indulge in such an argument and use their majority positions to avoid a tough vote as the midterms approach. That would be a dereliction of Congress’ important oversight role.

The authors of INARA anticipated chicanery from the executive branch. Congress enacted the law in 2015 while the JCPOA was in the final stages of negotiations. Once the Obama administration made clear its intent to circumvent Congress and not submit the agreement as a treaty, lawmakers of both parties demanded a say, noting the scale of U.S. commitments under the deal. An overwhelming majority of Congress — 98 senators and 400 House members — ultimately voted to pass INARA, thereby ensuring their ability to review the agreement. Crucially, Congress took pains to define the term “agreement” broadly to prevent the Obama administration from circumventing lawmakers.

Under INARA, the term “agreement” means an agreement “related to the nuclear program of Iran that includes the United States, commits the United States to act, or in which the United States commits or otherwise agrees to act, regardless of the form it takes.” The president must transmit that agreement regardless of whether it is legally binding or merely a political commitment. Finally, the administration must transmit additional materials related to any agreement, including annexes, appendices, codicils, side agreements, implementing materials, documents and guidance, technical or other understandings, and any related agreements.

The terms of the new agreement with Iran are not yet public, but reportedly involve substantial amendments to the JCPOA. That should not be surprising. The Trump administration pulled out of the JCPOA more than four years ago, so Washington and Tehran cannot just flip a switch and go back to the way things were.

From a statutory point of view, reentering a substantially amended agreement effectively amounts to “reaching an agreement” under INARA, thereby triggering the law’s transmittal and review requirements. 

During the period in which Congress reviews and votes on the new agreement, the administration cannot provide sanctions relief from measures imposed by Congress, which greatly curtails the administration’s flexibility in providing Tehran immediate, unobstructed benefits. That is one reason the administration wants to get around INARA. They have apparently found another way: according to leaked audio from the lead Iranian negotiator, prior to submitting the deal to Congress the Biden administration will simply lift or suspend three executive orders relating to Iran.

We reconstructed the details using other public Iranian and U.S. government documents and found that this would result in the lifting of over 170 sanctions on critical Iranian banks, terrorists and foreign sanctions evaders. This includes sanctions relief for Iran’s Supreme Leader Ali Khamenei, Iranian President Ebrahim Raisi, and senior IRGC generals responsible for the 1983 Beirut Barracks bombing and the 1994 AMIA bombing.

If the Biden administration enters the deal without due consideration and action by Congress, House and Senate members could initiate a lawsuit against the president. According to the Congressional Research Service’s 2014 study, based on the Supreme Court’s guidelines in Raines v. Byrd, individual members of Congress have legal standing against the executive branch when they have suffered an “institutional injury” that amounts to vote nullification in the past or future. Since INARA lays out the procedure for voting on nuclear agreements and provides an expedited vote, a court may find that evading the law amounts to vote nullification.

If members of Congress filed suit against the administration for injunctive relief, it could delay further sanctions relief, would raise the profile of the JCPOA’s deficiencies and draw attention to provisions in the deal that the Biden administration may be hesitant to publicize. It could also prove as a useful dilatory tool to permit a full accounting of the hidden concessions and side deals rumored to come, such as a widely-reported $7 billion hostage payment for the release of 4 American citizens — a rumor the administration has denied.

The Iranians pay close attention to the sentiments of Congress — in fact, Iranian officials frequently cite objections from Congress as reasons against rejoining the JCPOA. Even if the effort fails, this vote would send an extraordinary message to the regime and the international business community that any deal struck would not survive by any future Republican administration. Ultimately, it is risk-averse businesses and their leadership, not politicians, who make investment decisions.

This vote and its message would severely temper any economic investment in Iran (having a similar effect to sanctions), could prove to be a death knell for these misguided negotiations and would set the stage for the next administration to take a stronger approach.

Matthew Zweig, former senior advisor at the U.S. State Department’s Office of the Special Representative for Syria Engagement and senior professional staff member at the House Foreign Affairs Committee is a senior fellow at the Foundation for Defense of Democracies, a nonpartisan research institute focused on national security and foreign policy. Gabriel Noronha is a fellow at the Jewish Institute for National Security of America (JINSA) and previously served as the State Department’s special advisor for Iran from 2019-2021. He also served in the Senate Armed Services Committee from 2017-2019.