The U.S. Capitol Building in Washington D.C. Photo: U.S. Chamber of Commerce.

Now that both Houses of Congress are under the control of Republicans, will President Obama have as free a hand in making a deal with the Iranian mullahs regarding their nuclear weapons program?

Many members of Congress, in both chambers and on both sides of the aisle, believe that President Obama is willing to allow Iran to become a threshold nuclear weapons power, as long as they don’t actually develop a nuclear bomb during his watch.  Israeli leaders, both in the majority and in opposition fear the same thing. Nobody wants to see a nuclear-armed Iran and few want to see a military attack on Iran’s nuclear weapons program, except as an absolute last resort. Everyone would like to see a good deal that assures the world that Iran will never develop nuclear weapons, and in return for that assurance ends the crippling sanctions against the Iranian people.  The questions are what sort of a deal will bring us closer to this desirable outcome, and are the United States and its European allies demanding enough from Iran to assure compliance with a commitment not to weaponize its “civilian” program.

The newly elected Congress would like to play a role in addressing these questions, but the White House insists that the constitution empowers the executive branch alone—the president, his cabinet and his staff—to conduct the foreign policy of the United States. The White House is wrong.

The constitution divides the conduct of foreign policy between the executive and legislative branches, depending on the issue. For example, Article I expressly empowers Congress to “regulate commerce with foreign nations”; to “define and punish” crimes committed “on the high seas” and “against the law of nations”; to declare war; and to make rules governing “land and naval forces.”

Even when it comes to making treaties, the Senate must approve presidential decisions by a two thirds vote, and it must approve the appointment of ambassadors by a majority vote.

The framers intended this division of authority as part of its insistence on checks and balances, to assure that important decisions—including those affecting foreign policy—had to achieve the support of both the executive and legislative branches.

Its purpose was not to assure gridlock, but neither was it to allow one branch alone to make all important foreign policy decisions. Its purpose was to try to achieve a modicum of agreement, through negotiation and compromise, between the branches.

How does this constitutional division of power impact the current negotiations with Iran over its nuclear program, especially in light of the current partisan division between a Democratic president and a Republican-controlled Senate and House?

The answer depends on whether Congress chooses to assert its constitutional power to participate in foreign policy decisions. It is arguable that any deal with Iran will be enough like a treaty to warrant Senate approval, but even if that were not the case, any deal would necessarily require the removal of sanctions enacted by Congress. And Congress plainly has the power to refuse to reduce sanctions and indeed to strengthen them.

So President Obama will not have a completely free hand in making a deal with Iran. Nor should he. A president’s term is fixed by the constitution, and there is a danger that a president may be somewhat shortsighted in his view of foreign policy, and willing to kick the can down the road in order to preserve his legacy.  Congress, on the other hand, is a continuing institution with overlapping terms and significant responsibility in assuring that the short term interests of any given administration do not endanger the long term interests of the country. That is why Congress should demand a role in the ongoing negotiations with Iran.

The president may, however, insist that he and he alone has the authority to make a deal with Iran. This may create a constitutional conflict between the popular branches that may have to be resolved by the third branch of our government, namely judges appointed for life. It is unclear how the Supreme Court would resolve such a conflict. Indeed a case currently pending before the justices poses the issue of which branch gets to make foreign policy decisions in the context of a dispute between the executive and the legislature over whether Jerusalem is part of Israel for purposes of the passport of an American child born in Jerusalem. Although this issue is both narrow and highly technical, and involves passports which are administered by the executive branch, the High Court may render a decision using broad language that implicates the Iranian negotiations. So we have to wait and see what the Supreme Court does and says. In the meantime Congress should not abdicate its responsibility to advise the president on this important foreign policy issue.