Here Comes The Showdown Over The Biggest Foreign Policy Item Left On Obama's Agenda
Tuesday's wins give the Republicans a minimum of 52 and a likely 54 seats in the Senate. That's on top of a small handful of Democratic senators, like Sens. Chuck Schumer and Bob Menendez, who might oppose a deal that doesn't go as far as they'd like in rolling back Tehran's nuclear infrastructure.
The next Senate might not just include a majority of lawmakers dead set against a deal that recognizes Iran's rights to nuclear enrichment, or fails to cover Tehran's ballistic missile programs or support for terrorist groups. It could conceivably include a veto-proof majority, depending on what an eventual agreement looks like.
On Capitol Hill, it's become a guessing game as to what the final deal might look like - and whether the final product would be altered at all by the coming Republican majority. The shape of a comprehensive agreement looks different every day depending on which reports aides on Capitol Hill read. On Tuesday, for example, The New York Times reported a potential boost from Russian involvement in the talks. But Iran denied the Times' report.
"GOP will surely be less restrained, to put it mildly!" one senior Senate Democratic aide told Business Insider when asked if the Republican takeover changes the situation.
Whatever the case, a deal with Iran would not be a treaty, and would not have to be submitted to the Senate for ratification. The Obama administration has signaled it might attempt to maneuver around Congress and avoid allowing a vote on any final agreement with Iran, the deadline of which is set for Nov. 24.
But if the White House signs a deal with Iran after the next Senate is sworn in on Jan. 3, 2015, it could have to contend with a number of legislative challenges to its implementation.
The Senate could force every member of the Congress to go on record about their support for or opposition to the deal. This provision is the center of the Iran Nuclear Negotiations Act of 2014, a bill proposed by Sen. Bob Corker (R-Tennessee) with 11 current co-sponsors, including Sens. John McCain (R-Arizona) and Marco Rubio (R-Florida). Incoming Senate Majority Leader Mitch McConnell could allow a vote on the measure to proceed even before a deal with Iran is signed.
A "joint resolution of disapproval" envisioned under the law won't reverse the deal. But Mark Dubowitz, executive director of the Foundation for Defense of Democracies, says it could affect the dynamic of the debate surrounding it.
"If the majority of the House and Senate vote against it, it could be a significant blow to the political legitimacy of the deal," Dubowitz says.
And that blow could lead to other, more tangible measures. "That lays a political predicate for lot of the things that Congress can do to defeat a deal," he says.
For instance, the Republican-led Senate could refuse to lift existing sanctions legislation after a deal is signed, forcing Obama to implement the agreement through a series of sanctions waivers that the next president can simply decide not to continue.
Existing sanctions laws, signed in 2010 and 2012, include provisions stipulating that the sanctions will not be repealed until a number of criteria are met, including the dismantling of Iran's ballistic missile program and its removal from the state sponsors of terrorism list. A Republican Senate can leave the sanctions on the books, forcing the White House to affect the agreement by decree - something the next president could choose not to continue, which would effectively scuttle the agreement.
David Rivkin, a partner at Baker Hostetler, LLP, who served in the Department of Justice and White House Counsel Office under Presidents Reagan and George H. W. Bush., said that he believes Obama does not have the legal authority to suspend sanctions by fiat - but that it's up to Congress to determine how to counter such a move.
"The president would be in effect suspending the statutes for a period of years without any basis in law. He would be acting extra-constitutionally," Rivkin told Business Insider. "The question isn't whether it's constitutional or unconstitutional. It's what Congress can do about it."
Congress could use appropriations riders, refusing to fund programs or offices in the federal government involved in implementing an Iran agreement. Or it could pass entirely new sanctions, or require the administration to disclose the full content of the agreement to Congress - something that hasn't happened with the Joint Plan of Action (JPOA), the interim nuclear agreement signed in Geneva on November 24, 2013.
The JPOA includes an "implementation agreement" that was never officially classified, but that only individuals with a secret-level federal security clearance are currently allowed to see. Congress could make the administration apprise them of the the entire contents of an agreement, even if it's only through testimony in a closed-door hearing.
And a Republican-led Congress could pass legislation that forces the White House into a harder negotiating position before a deal is reached.
"By quickly passing the bipartisan Menendez-Kirk legislation, Congress can prevent a bad deal that fails to eliminate Iran's illicit nuclear program, and increase the chances for a strong deal that irreversibly prevents Iran from ever getting nuclear bombs," Sen. Mark Kirk (R-Illinois) told Business Insider by email.
That measure, which would have passed provisional sanctions that would have gone into affect if Iran violated the JPOA, didn't make it to the floor, even with as many as over 60 cosponsors. But it would under a Republican majority leader.
For his part, Obama reiterated during a press conference on Wednesday that he'd rather have "no deal than a bad deal."
"What I want to do is see if we, in fact, have a deal," he said. "If we do have a deal that I have confidence will prevent Iran from getting a nuclear weapon, and that we can convince the world and the public will prevent Iran from getting a nuclear weapon, then it will be time to engage in Congress. And I think that we'll be able to make a strong argument to Congress that this is the best way for us to avoid a nuclear Iran; that it will be more effective than any other alternatives we might take, including military action."
US Secretary of State John Kerry also said Wednesday he was still optimistic the US would remain "joined together with a strong voice" on matters of foreign policy.
"I don't believe that changes either side. I honestly don't," he said of working toward a deal before Republicans control Congress.
"I believe that the same substantive issues would be there regardless of who is in control of the United States Senate. And remember, the United States Senate is still going to be subject to 60 votes to pass anything. So while it may be Republican or Democrat, it's still subject to 60 votes. And as we have learned in the last few years, the minority has enormous power to stop things from happening, so this really is going to depend on other things."