You know the drill. In post-constitutional America, when The Leader doesn’t get what he wants from Congress, he’s forced to simply take it instead. For the common good.
In a saner age, the idea that Obama might defy Congress’s will would be a talking point circulated by the congressional GOP to try to convince Democrats to join them on the Iran vote and stand up for Congress’s authority. In the insane age in which we actually live, the people who are most likely pushing this idea to Politico are Obama’s own allies. This is probably the White House’s way of threatening Democratic fencesitters in Congress who are making up their minds right now on how to vote. “Your vote will be meaningless since we’ll do what we want anyway,” the message goes. “So why not join with your president and earn the gratitude of your party’s base?” Diplomacy, caudillo style:
For starters, Obama can easily revoke sanctions that were originally imposed, with no involvement from Congress, by the executive branch. Those include restrictions on loans and credits to designated Iranian companies and individuals, for instance.
More significant are financial sanctions passed by Congress in 2013, which exile banks that do business with specified Iranian businesses from the U.S. financial system. Though he may be prohibited from waiving those sanctions, Obama can still grant crucial relief to Iranian banks and businesses by “de-listing” them as targets of the law.
Similarly, Obama has the power to “license” certain transactions that may be covered under sanctions. Until now those licenses have generally covered humanitarian needs like medicine. But Obama could expand them…
Obama could take another major — and highly controversial step on his own. In late 2011, Congress passed a law that included provisions penalizing foreign financial institutions that do business with Iran’s central bank. In a statement he issued upon signing the law that December, Obama laid a possible predicate for ignoring it: The measure “would interfere with my constitutional authority to conduct foreign relations,” Obama wrote, adding that he reserved the right to “treat the provisions as non-binding.”
That was one of those signing statements which candidate Obama swore he wouldn’t use once he became president and then began using right away, once bashing Bush’s executive excesses had served their purpose of getting him elected. As for whether he’d actually try to lift sanctions on Iran following a bipartisan vote to block his deal, which by definition would include at least 13 Democrats (one of them the next Senate minority leader), I’m torn. The basic rule of all Obama power grabs is that it’s the politics, not the law, that determines whether he’ll follow through. As noted in the excerpt, he could always argue that sanctions currently on the books aren’t binding on him because they infringe on his Article II powers. Most of the public either doesn’t care about constitutional niceties or lacks the civic education to form a confident judgment about whether that’s true or not, so he’ll catch no flak in the polls for his legal arguments.
The risk lies in him defying not just the GOP but a significant minority of his own party in Congress, which wasn’t the case on his amnesty power grab, and defying them not on some mundane matter of government spending but on whether to go soft on a terrorist enemy power. On the one hand, what does O have to lose by defying them? He’s a lame duck, he sees this Iran catastrophe as his big foreign policy “legacy,” and he can probably count on a majority of Democratic voters to back him no matter what. Hillary will have to run away from him, but that’s okay. Opposing him on this will help polish her own credentials as a hawk before the election. On the other hand, what if it’s not just Mitch McConnell but Chuck Schumer who’s on cable news every night saying that Obama’s engaged in a dangerous betrayal of the will of the people per their representatives and that he’s singlehandedly enriching a regime run by Islamist fanatics with nuclear ambitions? He can’t build a “legacy” on the Iran deal without lots of friendly pols and historians carrying his water. The more Democratic critics there are, the more compromised that legacy is. And imagine if, as we all expect, Iran cheats on the deal and/or engages in a new wave of regional terror using the proceeds from sanctions relief. Obama will bear sole responsibility for that. His own party, eager to escape blame before the election next year, will lay it squarely at his feet. And the spectacle of Obama crossing Schumer and Congress to make Iran happy will feed perceptions that, when push comes to shove, he’d rather have the approval of Tehran than the approval of Americans. It’ll look like appeasement — assuming, of course, that Iran would even agree to honor its end of the nuclear bargain in return for Obama’s unilateral sanctions relief. A deal that actually failed in Congress would be even easier for the next president to tear up on day one, in which case why would Iran agree to it? Imagine if Obama tried to lift sanctions on Iran and then was scorned by the Iranians.
I can’t tell what he’d do. But since Chuck Schumer reportedly isn’t demanding that the Democrats in his caucus join him in opposing the deal, it doesn’t matter. The GOP’s attempt to block it will fail in the Senate, just as it was designed to. Thanks, Bob Corker!