REVIEW OR NOT REVIEW

Will the Biden administration allow Congress to review the new Iran deal?

Senate Foreign Relations Committee Chair Bob Menendez said he plans to hold hearings on the deal regardless of whether it meets the terms of INARA

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Sen. Robert Menendez (D-NJ) questions Treasury Secretary Janet Yellen and Federal Reserve Chairman Jerome Powell during a Senate Banking, Housing and Urban Affairs Committee hearing on the CARES Act, at the Hart Senate Office Building on September 28, 2021 in Washington, DC.

Senate Foreign Relations Committee Chair Bob Menendez (D-NJ) said on Tuesday that he wants the Biden administration to submit any new nuclear agreement with Iran for congressional review “if it does meet the obligations” of the 2015 Iran Nuclear Agreement Review Act (INARA) — but said he plans to hold hearings even if it does not.

The legislation mandates a review period — during which time no sanctions can be removed — for Congress to review any nuclear deal with Iran.

“I will check to see what the agreement is and look to apply INARA,” Menendez told reporters on Tuesday. “If it doesn’t meet the obligations under INARA, then no. Although I still would want to have hearings. If it does meet the obligations of INARA, then yes, it should be pursued under INARA.”

The debate over the applicability of INARA has taken on increasing prominence in recent days as talks on Iran’s nuclear program in Vienna progress, and has been listed as a top issue by House and Senate Republicans, as well as a bipartisan House group — including a dozen Democrats — that recently expressed concerns about the negotiations to the Biden administration.

A congressional staffer familiar with the deliberations said that the administration has confirmed both publicly and privately that they will submit the deal to Congress for INARA review if a deal is finalized.

Menendez said he would “have to see what the specific agreement is” before deciding whether INARA applies, and would not speculate about what sort of deal could be exempt. The language of the legislation is broad, applying to “an agreement with Iran relating to the nuclear program of Iran.”

But he said a direct reentry into the deal as it previously existed is no longer possible, given that new sanctions have been imposed since then, Iran has advanced beyond the limits of the original deal and Iran has blocked International Atomic Energy Agency inspections of its sites.

“I cannot imagine a simple, straight reentry,” Menendez said.

The Biden administration declined to specifically guarantee in a statement to JI on Tuesday that it will submit any agreement to Congress under INARA. 

A State Department spokesperson told JI, “the administration will carefully consider the facts and circumstances of any U.S. return to the JCPOA [Joint Comprehensive Plan of Action] to determine the legal implications, including those under INARA.  We are committed to ensuring the requirements of INARA are satisfied.”

The spokesperson also said that administration officials have been in touch with lawmakers and their staffs about the issue and that lead U.S. negotiator in the Vienna talks, Rob Malley, “remains deeply committed to close engagement with Congress.”

Menendez said he hasn’t “found [Malley’s] briefings to be very significant or insightful.”

Although a majority of House and Senate members — including a handful of Democrats — appear to oppose the deal as it has been outlined publicly, it is unlikely that opponents of the deal would be able to muster the full 60 votes in the Senate to block it from going into effect, much less the two-thirds of each chamber necessary to override a presidential veto.

“At the end of the day, if there is an agreement, it’s not going to be blocked,” Dennis Ross, the William Davidson Distinguished Fellow at The Washington Institute for Near East Policy who has served in multiple Democratic and Republican presidential administrations, told JI.

Ross said he heard initially that the administration was planning to argue that it is only reentering the 2015 agreement, which was already reviewed by Congress, making a new review unnecessary. But he has “heard conflicting things since then.” 

The administration now may believe that “rather than in effect be seen as stonewalling the Congress, it makes more sense to go ahead and allow it to be reviewed again,” he explained.

“The only issue” with submitting the deal under INARA “is that you’re kind of conceding that this is an agreement that’s actually different than the [Joint Comprehensive Plan of Action],” contrary to the administration’s position, Ross continued. “If you concede that point then you’re already acknowledging that this is something different than what you’ve said it is.”

Joel Rubin, a deputy assistant secretary of state for legislative affairs in the Obama administration, told JI he has heard that INARA review is predicated on the contents of the final deal — which has not yet been completed — and that if it is the same as the original JCPOA the administration sees another review as unnecessary.

David Makovsky, the Ziegler distinguished fellow at The Washington Institute said that he thinks it is “inevitable that there will [be] Hill hearings” if a deal is reached, “given the gravity and consequences of returning to the JCPOA.”

Some skeptics of the original deal insist that the administration is seeking to dodge congressional scrutiny. Sen. Ted Cruz (R-TX) claimed at a press conference last week that “there’s some creative lawyers at the State Department that are trying to find ways around that law.” 

Rich Goldberg, a senior advisor at the Foundation for Defense of Democracies (FDD) and a former National Security Council and Hill staffer who co-hosts JI’s “Limited Liability Podcast,” said that the administration’s “very strict, disciplined messaging” that the deal is a reentry into the 2015 agreement rather than a new agreement leads him to believe that they are “preparing legal arguments to avoid submitting this agreement to the Congress.”

Blaise Misztal, the vice president for policy at the Jewish Institute for National Security of America, said he “absolutely” thinks the administration will try to dodge Congress both to avoid the “dirty laundry” of the deal being aired and vetted as well as to protect congressional Democrats from having to take tough votes on the deal.

He pointed to Senate Majority Leader Chuck Schumer (D-NY) as potentially of particular concern — Schumer voted against the deal, but is now in Democratic leadership and it “would look particularly bad for him to break with the president but might not want to be on the record supporting the deal either.”

Matthew Zweig, a senior fellow at FDD and longtime former staffer on the House Foreign Affairs Committee, said it’s difficult to predict how the administration will proceed, but said that the administration would likely prefer to avoid a situation in which opponents of the deal can say that a majority of Congress opposed it, as happened previously.

Should the administration seek to sidestep congressional review, there’s “not a whole heck of a lot” Congress can do to stop the agreement from going into effect, Misztal said. 

Members of Congress could sue the administration, a longer process that would not stop initial implementation of the deal and that is not guaranteed to be successful, Mizstal suggested. They could also seek to pass legislation reimposing sanctions the administration lifts or compelling the administration to take other actions in the event of Iranian violations of the deal.