How the White House Can Get Around Congress on Iran

There are ways to deliver economic relief without asking for sanctions to be lifted. One start would be to give the country access to its own money.

Iranian President Hassan Rouhani is pictured ahead of his meeting with International Peace envoy to Syria Lakhdar Brahimi in Tehran on October 27, 2013. 
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Sara Sorcher
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Sara Sorcher
Oct. 31, 2013, 5 p.m.

Chat­ter in Wash­ing­ton ahead of next week’s ne­go­ti­ations in Geneva between world powers and Ir­an re­sembles a typ­ic­al “good cop, bad cop” routine: The Obama ad­min­is­tra­tion floats pos­sible eco­nom­ic re­lief for Tehran in ex­change for veri­fi­able con­ces­sions on its nuc­le­ar pro­gram, while Con­gress saber-rattles against any eas­ing of sanc­tions, no mat­ter how mild, and threatens to im­pose even more. The tac­tic is most ef­fect­ive when mere threats from the bad cop let the good cop win con­ces­sions. But in this par­tic­u­larly con­ten­tious era, it seems un­likely Con­gress will read­ily go along with any agree­ment the White House brokers that re­laxes sanc­tions, short of com­plete ca­pit­u­la­tion by Ir­an — which is not go­ing to hap­pen.

Hawk­ish when it comes to pres­sur­ing Ir­an, Con­gress does have op­tions at its dis­pos­al to try to tor­pedo a deal. But it’s im­port­ant to re­mem­ber that the White House, as the primary ar­bit­er of for­eign policy, has av­en­ues to of­fer re­lief to the Is­lam­ic Re­pub­lic by go­ing over the heads of law­makers who might stand in its way.

(RE­LATED: How Con­gress Could Wreck an Ir­an Deal

“It’s pretty clear sanc­tions re­lief that would be offered to Ir­an would have to be meas­ures that would not re­quire con­gres­sion­al ap­prov­al, [partly] be­cause of the over­rid­ing hos­til­ity in the Con­gress to Ir­an,” says former State De­part­ment non­pro­lif­er­a­tion chief Mark Fitzpatrick, now at the Lon­don-based In­ter­na­tion­al In­sti­tute for Stra­tegic Stud­ies. Many in Con­gress con­tend, as Is­rael does, that Tehran should not be per­mit­ted to en­rich any urani­um; by con­trast, the Obama ad­min­is­tra­tion may be will­ing to con­tem­plate a deal that al­lows Ir­an to op­er­ate some type of en­rich­ment pro­gram. With these fis­sures already emer­ging, the ad­min­is­tra­tion must think about in­cent­ives for com­prom­ise that it can prom­ise Ir­an even if it’s not sure Con­gress will sign on.

Here’s how that could hap­pen. For starters, vir­tu­ally every sanc­tions bill Con­gress has passed al­lows the ad­min­is­tra­tion to sus­pend the meas­ures, usu­ally for four months, by cer­ti­fy­ing it’s in Amer­ica’s na­tion­al se­cur­ity in­terest to do so. “We be­lieve we have a sig­ni­fic­ant amount of flex­ib­il­ity with­in those laws,” one seni­or ad­min­is­tra­tion of­fi­cial says. One widely dis­cussed pro­pos­al for sanc­tions re­lief in­volves giv­ing Ir­an easi­er ac­cess to its own money from oil sales, which is cur­rently locked up in es­crow ac­counts in coun­tries pur­chas­ing the oil. Con­gress could not over­ride this. Even more eas­ily, Pres­id­ent Obama can uni­lat­er­ally res­cind or amend any ex­ec­ut­ive or­der. Ir­an could be in­ter­ested in a lift­ing of the re­cent sanc­tions im­posed by the ex­ec­ut­ive branch on those who do busi­ness with Ir­an’s auto­mot­ive in­dustry, one of that coun­try’s biggest em­ploy­ers.

An­oth­er av­en­ue is dip­lomacy. The ad­min­is­tra­tion could work with the European Uni­on to re­lax its sanc­tions. The E.U. could re­verse its ban on buy­ing Ir­a­ni­an gas, and the fin­an­cial-trans­fer group SWIFT could al­low Ir­a­ni­an banks back onto its sys­tem. Wash­ing­ton could provide de facto re­lief by com­mu­nic­at­ing that it would not re­tali­ate.

A con­tro­ver­sial op­tion would be for the ad­min­is­tra­tion to simply not en­force sanc­tions already on the books. It’s not an un­pre­ced­en­ted step. The Clin­ton and Bush ad­min­is­tra­tions did not fully en­force the pro­vi­sions of a raft of 1996 sanc­tions to pun­ish firms do­ing busi­ness with Ir­an and Libya. The State De­part­ment ne­go­ti­ated an agree­ment with European rep­res­ent­at­ives sig­nal­ing it would not sanc­tion European firms, says Patrick Clawson, dir­ect­or of re­search at the Wash­ing­ton In­sti­tute for Near East Policy. An un­happy Con­gress re­quired a re­port every six months on sanc­tions pro­gress. “Press re­ports would say com­pan­ies were in­vest­ing in Ir­an; com­pan­ies would say they’re in­vest­ing in Ir­an; Ir­an would say they’re in­vest­ing in Ir­an. But [the State De­part­ment] would say, “˜We don’t know if it’s true.’ “

The Obama ad­min­is­tra­tion could sim­il­arly stall on mak­ing de­term­in­a­tions on sanc­tions. Clawson cites Obama’s com­ments on marijuana laws last year, when he told Rolling Stone: “I can’t ask the Justice De­part­ment to say, “˜Ig­nore com­pletely a fed­er­al law that’s on the books.’ What I can say is, “˜Use your pro­sec­utori­al dis­cre­tion and prop­erly pri­or­it­ize your re­sources to go after things that are really do­ing folks dam­age.’ “ Na­tion­al Journ­al re­cently noted Obama’s tend­ency to lib­er­ally use his ex­ec­ut­ive au­thor­ity to im­ple­ment policies that Con­gress de­clined to en­dorse, on everything from im­mig­ra­tion to cli­mate to health care. Ne­go­ti­ations to end the dec­ade-long dis­pute over Tehran’s nuc­le­ar pro­gram could be no dif­fer­ent. “If the ad­min­is­tra­tion were to say, “˜It’s not our pri­or­ity to en­force the sanc­tions,’ then the sanc­tions would erode quickly,” Clawson says. Many com­pan­ies would even be will­ing to risk fines for buy­ing and ship­ping goods to Ir­an, he says, so long as they were not vig­or­ously pun­ished.

(RE­LATED: The Do-It-Your­self Pres­id­ency)

Con­gres­sion­al op­pos­i­tion to any Obama deal with Ir­an would take the form of le­gis­la­tion to lim­it or take away al­to­geth­er the pres­id­ent’s abil­ity to waive sanc­tions, says Gary Sam­ore, formerly Obama’s White House co­ordin­at­or for arms con­trol and weapons of mass de­struc­tion. But Obama’s de­cision will hold “as long as the ad­min­is­tra­tion can sum­mon enough sup­port” — that is, just over one-third of the House and Sen­ate — “to pre­vent a veto-proof bill.” If Con­gress takes no ac­tion, Sam­ore adds, it will be “im­pli­cit ac­cept­ance” that the deal is good enough, des­pite any pub­lic bash­ing of the ad­min­is­tra­tion’s con­ces­sions.

This is where his­tory holds some les­sons. White House foot­work could give mem­bers of Con­gress an out. When the tough sanc­tions against Tehran were not be­ing en­forced to the fullest in pre­vi­ous ad­min­is­tra­tions, Clawson says, the ex­ec­ut­ive branch would brief law­makers and ask if they really wanted to pick a trade fight with Europe or po­ten­tially de­rail re­la­tion­ships with the Ir­a­ni­ans, who at the time had agreed to a deal on en­rich­ment with some European coun­tries. Per­haps es­pe­cially in Wash­ing­ton, pub­lic bluster isn’t al­ways rep­lic­ated in private chan­nels. Some mem­bers may be genu­inely out­raged about an Ir­an deal. Oth­ers may end up say­ing privately, as Clawson puts it, ” “˜Thank God you didn’t force us to vote on that one.’ “

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