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By John Ubaldi
Contributor, In Homeland Security
President Barack Obama’s foreign policy legacy hinged on the next president keeping the United States in the Iran nuclear agreement. However, that legacy was predicated on Hillary Clinton winning the presidency. Instead, Donald Trump won and he was under no obligation to honor the political commitment of his predecessor.
If a president governs by executive order, his legacy is defined by whether the next president does or does not continue the same policy. During Trump’s campaign, he pledged to withdraw the United States from the Iran nuclear agreement. Strange as it may seem, Trump kept his word.
Political Commitment ‘Imposes No Obligation under International Law’
Curt Bradley commented in the Harvard Law Review that a political commitment “imposes no obligation under international law.” He wrote that a nation “incurs no state responsibility for its violation” and thus “a successor President is not bound by a previous President’s political commitment under either domestic or international law and can thus legally disregard it at will.”
Obama calculated that he could get a nuclear agreement with Iran by bypassing the traditional method previous presidents have used: encapsulating the deal into a treaty that required Senate ratification, thus making the deal binding upon any successor president. Had that been done, Trump would have had no option but to adhere to the treaty.
Obama Administration Made Political Miscalculation
The Obama administration knew that it would be unable to get a Republican-controlled Senate to give its approval of the deal and prevent Tehran from obtaining nuclear weapons. The Iran Nuclear Agreement Review Act of 2015 gave Congress the right to review any and all agreements regarding the multilateral talks among the U.S. and the other permanent members of the UN Security Council — China, France, Russia, the United Kingdom plus Germany (known as the P5+1 nations) and Iran.
The bill overwhelmingly passed the Senate and the House. Obama threatened to veto it, but the version placed on his desk had enough signatures to override a potential presidential veto. Obama chose to sign it.
Having failed to obtain support from Congress, Obama embarked on the only option available. He sought a political commitment, which can be easily made and equally easily broken.
Former Obama Administration Officials Complain Trump’s Decision Damages US Credibility
Former Obama administration officials have complained vigorously about Trump’s decision, citing the harm it will do to the reputation of the United States and other subsequent agreements. Former Obama National Security Advisor Susan Rice stated, “When the United States unilaterally abrogates an international agreement in the absence of any breach, we undermine international perceptions of our reliability and responsibility.”
Former Deputy National Security Advisor Ben Rhodes echoed Rice’s comment. Trump’s action, he tweeted, “severely undermines the credibility of the United States to uphold international agreements that we sign which will endure after he is gone.”
As a Constitutional scholar, Obama should have known that any consequential international agreement would need the consent of Congress as the framers of the Constitution intended, especially in the face of overwhelming opposition from Congress.
Unfortunately, the Obama administration made the agreement non-binding under domestic and international law.
Founding Father Alexander Hamilton Explains Intent of Advice and Consent
In No. 75 of the Federalist Papers, Alexander Hamilton explained the wisdom of the framers’ intent with regard to the constitutional method by which the Senate approves treaties.
Hamilton wrote that it would be “utterly unsafe and improper” to trust the “entire power of making treaties” to the president alone, since the president could not always be trusted to serve the national interest.
“The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States,” Hamilton wrote. He added, “The vast importance of the trust…plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.”
The goal of the Constitution was for the House and Senate to provide legislative advice and consent, so that any agreement serves the national interest by having enough support for its passage. Any agreement that is ratified by the Senate tends to be long-lasting and durable beyond the administration of the president who submitted it in the first place. A president would be less likely to attempt to renege on an agreement made by a prior president with the support and consent of Congress.
Obama Forgot about Using the Constitution to Secure the Iran Deal
The Obama administration did not use the constitutionally mandated method of making this agreement binding. Instead, it chose to act unilaterally, thus pledging the nation’s reputation to a non-binding agreement that never had the support of Congress.
If the reputation of the United States takes a hit from international critics for not honoring the agreement, the onus and responsibility lies solely with the Obama administration for making such a unilateral and consequential decision on its own.
President Obama made a strategic calculation that Mrs. Clinton would win the presidency and gambled that by lifting sanctions on Iran, the passage of time would be enough so that a future president could not reimpose the sanctions because the political price would be too high. Unfortunately, this tactic did not work and future generations will pay the price.
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