Rep. Justin Amash (R-Mich.), a second-term congressman who provides an explanation of every vote he casts, based on a constitutional perspective, announced he would be voting against the Iran deal when it comes before Congress this month.
On Facebook, he wrote:
There are at least two major constitutional defects with the nuclear deal.
First, President Barack Obama refuses to recognize the agreement as a treaty, subject to approval under the Constitution's Treaty Clause (Art. II, Sec. 2, Cl. 2). Under the Treaty Clause, the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." To avoid this higher threshold for approval, the Obama administration asserts that the nuclear deal is merely an "executive agreement" that binds only this president.
Even if we accept this dubious claim, there is a second constitutional defect that compels me to reject the nuclear deal. Under the Take Care Clause (Art. II, Sec. 3, Cl. 5), the president must "take Care that the Laws be faithfully executed." As I discuss below, the president clearly fails to fulfill this obligation.
Amash added that even setting aside his constitutional concerns, it was "unconscionable" the Obama administration didn't secure the release of three American hostages being held in Iran. The status of the hostages, as many other ongoing issues between the U.S. and Iran, were not part of negotiations between Iran and the U.S., the U.K., China, Russia, and France, a decision the Obama administration defends as necessary for negotiations to produce any results on the nuclear issue.
As to the matter of the law, Amash explained that, in his view, the undisclosed "side deals" between the International Atomic Energy Agency (IAEDA) and Iran, should have been included in the documents related to the Iran nuclear agreement submitted to Congress, per the Iran Nuclear Review Act. The Obama administration disputes that contention, saying agreements reached between Iran and the IAEA were not part of the agreement Iran, the U.S., and five other countries arrived at.
As Amash notes, the Iran Nuclear Review Act defines agreement to include "annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements." The definition, however, also limits the "agreement" to agreements "related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action". The Obama administration contends the agreements between the IAEA and Iran don't involve the U.S. or commit it to action.
Amash supported sanctions against Iran, and say it's likely they helped bring Iran to the negotiating table. Yet if Iran expected that negotiations would have to result in a treaty, with all the legal obligations that entails in every country involved, it's unlikely they'd come to the negotiating table, no matter the effect of sanctions. The demand an agreement with Iran be a treaty, which would have the constitutional force of law, seems late if the intent of supporting sanctions was to get Iran to negotiate on their nuclear program.
The Iran Nuclear Review Act, for which Amash voted in favor, ceded to the prevailing view that the negotiations with Iran were meant to produce an "executive agreement," which unlike a treaty doesn't require Senate ratification but can also be revoked by a future president. Congress gave itself the power to vote to disapprove of the Iran agreement, a disapproval the president would be able to veto. The White House appears to have enough support in Congress to prevent an override of a veto.
And it may not matter anyway, with the House and Senate looking unlikely to be voting on the same bills on the Iran deal. If the Congress is unable to pass anything on the Iran deal, it will be considered approved, per the Iran Nuclear Review Act. This despite, or because of, the deal plummeting to just 21 percent support in national polling. Instead of voting on a resolution of disapproval, as Senate Republicans are hoping to do, if they can overcome Democratic opposition, House Republicans will force a vote on a resolution of approval, and additional votes on the agreement and sanctions, meaningless votes except for the campaign trail.