Since this is not a treaty, is it binding on future administrations?
Treaties are binding. In fact, the U.S. government still has more than a dozen treaties on the books with Iran, having brokered various agreements on agricultural commodities, aviation, and even military matters dating back to the 1950s.
But treaties are also trickier to come by, because they need Senate approval. That is one reason why presidents in recent decades have opted for executive agreements, which typically don’t require congressional input. But they carry a major drawback: they can be reversed by the next president.
A 2009 study published by the University of Michigan found that 52.9% of international agreements were executive agreements from 1839 until 1889, but from 1939 until 1989 the ratio had risen to 94.3%.
The founding fathers designed the international agreement system with a lot of flexibility, or, depending on your perspective, ambiguity, because even they couldn’t agree on which branch of government should have the dominant say in how the U.S. reached deals with foreign governments.
In recent decades, presidents have entered into thousands of executive agreements with foreign governments, on a range of issues, both controversial and relatively basic.
“Diplomacy is a lot more complicated now than it was in 1789,” said Michael Ramsey, a professor at the University of San Diego Law School.”The president has a lot more things now that he has to just get done on a daily basis than he used to. If all those agreements had to be brought back to the Senate to be approved, there’s no way it would be done.”
Executive agreements have their weaknesses, however, and make for easy political targets.
First of all, they can lead to immense squawking from members of Congress, which is what happened when the Clinton administration cut a deal with North Korea over its nuclear program in 1994.
A number of GOP lawmakers, including Sen. John McCain of Arizona, went ballistic, saying a deal of that magnitude should have been brought before Congress. The agreement was never ultimately implemented, in part because of how little political support there was for it back in the U.S.
Robert Einhorn, a senior fellow at the Brookings Institution, said the Obama administration could structure the deal it is negotiating with several foreign countries and Iran as an “executive agreement” to bypass the Senate, but ultimately Congress would get its say. That is because the White House is trying to lure Iran into a deal by suggesting that long-standing sanctions would be rolled back. The White House has the power to temporarily suspend sanctions, but not eliminate them. Only Congress could do that.
“The agreement will provide for the eventual removal of sanctions, and that can only be done by the Congress,” Mr. Einhorn said. “So the Congress will get a vote, but it will be down the road.”
If the Iran talks were structured like a treaty now, the White House could try and push for a formal agreement with Congress over a way to phase out the sanctions. But the White House isn’t pushing for such a treaty, in part because senior officials know it would never pass.
Congress approved more than 1,500 treaties in the first 200 years of the U.S. government’s existence, a number so large that some White House officials might be tempted to test their luck with the Iran talks.
But the White House has made clear it will instead seek an executive agreement, or something like it. This approach will draw heat from Congress, and legal experts will watch the proceedings closely to see the constitutional implications.
“One way to spin this is: ‘Presidents do this all the time, there are thousands of executive agreements out there. Why is Congress worked up about this one?’” Mr. Ramsey said. “But the answer is, typically, the executive agreements you see are routine, low-level, ‘how-to-get-along’ things, whereas this agreement is a pretty big deal.”
He added the GOP’s case rests on choices, not requirements: “Their argument isn’t that the president can’t make executive agreements. But, rather, that the president can’t make an executive agreement on an issue of this importance.”
Treaties vs. Executive Agreements: When Does Congress Get a Vote?