Making Useless Trouble

There’s no point in talking about this anymore. In the end, forty-two Democratic senators came out in support of the Iran deal, our part of the international agreement to lift the world’s sanctions as Iran dismantles its nuclear weapons program, with everyone watching. Forty-two votes were enough to block a vote formally disapproving of the deal, enough to keep it from coming to the floor of the Senate. The House vote wouldn’t matter. Obama won’t have to veto anything – but a few hours before the Senate vote, to decide to not vote on anything at all about this Iran deal and thus let Obama proceed, there was the massive rally where Ted Cruz and Donald Trump and Sarah Palin and Glenn Beck and Mark Levin pretended that, somehow, the vote would go the other way. That was lively – and pointless. The crowds booed the Republican leaders of the House and Senate, John Boehner and Mitch McConnell, far more loudly than they booed Obama when he was mentioned. What good is holding the majority in the House and Senate if you can’t stop Obama from doing stupid stuff?

John Boehner’s job was in jeopardy, so he agreed to a new tactic – Republicans shouldn’t bother voting to disapprove of the Iran nuclear deal. They should vote for a resolution that would delay a disapproval vote because Obama had not disclosed some elements of the deal. Obama hadn’t provided the text of the side agreements between the IAEA and Iran on some logistical matters. Those weren’t part of the deal but they should have been. The Republicans wouldn’t do anything until they get that stuff, and thus Obama couldn’t do anything either. The deal would be dead.

That was the House plan. Mitch McConnell thought it was stupid, perhaps because the only Republican senator who loved the idea was Ted Cruz, the troublemaker all the senators of both parties hate. McConnell scheduled the Senate vote anyway. What happened next was inevitable. Those forty-two Democratic senators refused to vote for cloture, where everyone stops talking and actually votes, and the Republicans didn’t have the sixty votes to force cloture, and an actual vote. There could be no vote of disapproval. It was over.

All that was left were meaningless gestures:

The US House of Representatives defeated a resolution on Friday backing the nuclear agreement with Iran in a symbolic vote engineered by congressional Republicans who object to the deal. House members defeated the measure 269 to 162 in a strongly partisan vote, part of an effort by Republicans to underscore their objections to the international accord despite a vote on Thursday in the Senate that blocked a Republican-led effort to kill it by passing a resolution of disapproval.

It was all they could do:

After a rebellion by some of the most conservative Republicans, party leaders abandoned plans for a House vote on a disapproval resolution, opting for votes on three measures to send a stronger message that a majority of Congress objects to the pact. …

In a second vote on Friday, the House voted 247 to 186 to pass legislation that would bar Obama from waiving, suspending or reducing sanctions under the nuclear agreement.

That’s cool, but useless:

To become law, that legislation would have to be passed in the Senate and then survive a likely veto. There are no plans now for the Senate to vote on the House measures.

Oh well, there’s now this:

A federal court ruling Wednesday that found members of Congress had standing to sue the administration over the Affordable Care Act has empowered some Iran deal opponents to suggest lawmakers could also bring a lawsuit against the administration over the Iran deal.

In a press conference Thursday morning, House Speaker John Boehner (R-OH) entertained the idea, telling reporters legal action was “an option that’s very possible.”

Here’s the idea:

Eugene Kontorovich, a Northwestern University School of Law professor and writer for the Washington Post legal blog The Volokh Conspiracy, further laid out the idea… Like the conservative representatives who successfully derailed a House vote to disapprove the deal, Kontorovich’s argument depends on the idea that the president withheld certain details about the Iran agreement – namely the so-called “side deals” between Iran and the International Atomic Energy Agency – from Congress and thus the period lawmakers had to review the agreement under compromise legislation worked out by Sen. Bob Corker (R-TN) and Sen. Ben Cardin (D-MD) was never triggered. As a result, Kontorovich said, Obama does not have the power to lift the congressionally-imposed economic sanctions on Iran, a key element of the nuclear deal.

By not complying with the terms of the Corker-Cardin compromise, Obama would be infringing on Congress’ ability to regulate foreign commerce, specifically with regard to Iran sanctions, the argument goes.

“By not transmitting the relevant materials, the president is preventing Congress from exercising its legislative authority,” Kontorovich wrote.

And there’s more:

He also laid out a path for states to sue the Obama administration over the deal, as the lifting of the federal sanctions under the Iran deal could impede states’ sanction regimes and open states up to lawsuits, he said.

That’s curious. Kansas may have decided to do no business with Iran. Now the federal government will. What about Kansas? The courts will have to decide whether each state gets to run its own foreign policy. The Constitution says no, but this is not quite state-level foreign policy, unless it is. This should be fun, or not:

At least one Republican moderate has thrown cold water on the idea of taking legal action.

“I’ve talked to a number of attorneys, and all the folks I’ve talked to on that legal strategy [say] that we will not be successful in court,” Rep. Charlie Dent (R-PA) told reporters Thursday after the Boehner press conference.

He added that pursuing a lawsuit would “take a hell of a long time to get a resolution.”

This would be making useless trouble. The damage is done here, and not just to the Republicans. There’s the American Israel Public Affairs Committee (AIPAC) – the lobbying group. M. J. Rosenberg used to work for them – he lobbied Barack Obama when Obama was a senator – and he sees what has happened here:

It’s hard to exaggerate the damage inflicted on AIPAC by the congressional defeat of its efforts to torpedo the Iran nuclear deal. It is not as if AIPAC won’t live to fight again, because it will, but this defeat has ruptured the status quo, possibly forever.

The extent of its efforts to defeat the deal was unprecedented even for a lobby known for its no-holds-barred wars against past White House initiatives it considered unfriendly to Israel, going all the way back to the Ford administration. AIPAC, and its cutout, Citizens For A Nuclear-Free Iran, reportedly budgeted upwards of $20 million for a campaign that included flooding the airwaves with television spots; buying full-page newspaper ads, arranging fly-ins of AIPAC members to Washington, organizing demonstrations at offices of AIPAC-friendly members of Congress who were believed to be wavering, and ensuring that problematic legislators were officially warned by precisely the right donor. Rank-and-file AIPAC members were largely irrelevant to the process. Money did the talking, and also the yelling and the cursing when necessary. As one congressional staffer put it to me, “Taking money from AIPAC is like getting a loan from the mob. You better not forget to pay it back. They walk into this office like they own it.”

That’s just who they are:

AIPAC is not a mass-membership organization. It claims 100,000 members, which probably means it has fewer than that. But no matter, it is, or was until now, viewed as speaking for all 6 million American Jews. In fact, whenever it testifies on Capitol Hill, it says it is speaking for the entire organized community. The truth, however, is that 82 percent of American Jews belong to no Jewish organizations at all, meaning not only that there is no organization that speaks for them, but that no organization even knows exactly who they are.

Legislators believe that AIPAC is the Jewish voice because (again, until now) that is what they heard from their Jewish donors. Although only 4 to 6 percent of American Jews cast their votes based on Israel policy, and even though Jews have voted consistently Democratic since 1928 (about 70 percent voted for Barack Obama in 2008 and 2012), the donor class led by AIPAC has convinced politicians both that Jews are primarily interested in Israel and that their votes are in play, when, in reality, Jews are the most unwavering of Democrats, second only to African-Americans. And much the same dynamic is at play when it comes to Iran. In fact, the one scientific poll of Jews on attitudes toward the Iran deal showed 49 percent for it, with 31 percent against.

That ended up putting them in an awkward position:

Starting as far back as 2008, when the Israeli leadership first had to consider that Barack Obama would likely win the election, it did not take kindly to the president. Media reports told of Israelis being immune to the Obama mania that had seized the planet. Maybe it was his middle name or maybe something else. In 2012, Netanyahu all but endorsed Mitt Romney, allowing his associates to denigrate the president.

Netanyahu’s animus came to a head when his ambassador to the United States arranged for him to speak to a joint meeting of Congress about Iran this past March, without even letting the White House know that the prime minister was planning a visit. Netanyahu came and – how else to put this? – dissed the president of the United States in his own capital.

At that moment, the battle against the Iran agreement became a partisan battle: Likud and the Republicans against the American president and the Democrats. That never changed.

And that ruined everything:

AIPAC’s power is built on the belief that it cannot be challenged with impunity, a belief that is on the verge of being exposed as illusory. When Senator Chuck Schumer, AIPAC’s Senate enforcer on Israel-related issues, cannot even deliver his and New York’s junior senator, Kirsten Gillibrand, it is clear that the bad old days of lobby intimidation may be passing. When as stalwart an AIPAC supporter as Congresswoman Debbie Wasserman Schultz defects because she fears that choosing AIPAC over a Democratic president could cost her the post she holds as chair of the Democratic National Committee, the power dynamic has clearly changed. When Congressman Jerry Nadler, who represents more Orthodox Jews than any other member of Congress, tells AIPAC that he won’t be with them this time, it is impossible not to sense a political earthquake.

And meanwhile, in Israel, the Jerusalem Post reports these numbers:

A very large majority of Israeli Jews – 78.4% – said they do not believe Iran would uphold the deal, compared to 15.3% who said they think Iran will uphold the deal and only 1.5% who said they were sure the Islamic Republic would abide by the agreement. The rest said they did not know or declined to answer.

Nevertheless, 27.9% of Israeli Jews said Obama’s administration is very committed to Israel’s security and 38% said it is moderately committed. Only 6% said the US administration was not committed at all to Israel’s security and 26.3% said it was moderately committed. The percentage who said they did know or declined to answer was 1.8%.

A large majority of the Israeli public was proved correct when the struggle Netanyahu waged in Congress against the nuclear deal with Iran failed. Some 64% said they believed his efforts had a small or no chance of succeeding. Only 28% said they thought the prime minister had more than a small chance of success.

When asked about the impact of Netanyahu’s efforts on US-Israel relations, 48% of Israeli Jews said they thought Netanyahu’s campaign would damage relations, while 37% did not think it would affect them one way or another.

Only 8% believed it would positively impact relations.

There were a lot of miscalculations here, and Slate’s Jamelle Bouie argues the Republican Party itself actually helped Obama win this:

When the deal was still just a negotiation Republican senators, led by Tom Cotton of Arkansas, sent an “open letter” to Iran’s leaders urging them to dismiss talks. Shortly afterward, Republican leaders joined with Israeli Prime Minister Benjamin Netanyahu to slam the negotiation as a deadly threat to Israel. In the following months, Republicans would say the deal was “akin to declaring war on Israel”; that Obama was “march[ing]” Israelis to the “door of the oven”; and that the president was siding with “the oppressors.” The apex of this criticism came Tuesday, when former Vice President Cheney slammed the agreement in the fiercest words possible. “I know of no nation in history that has agreed to guarantee that the means of its own destruction will be in the hands of another nation, particularly one that is hostile,” he said.

None of this scared Democrats into voting against the deal. Instead, it was evidence that this fight was irreducibly partisan – with no chance of a compromise or détente. Cautious Democrats – like Sens. Ron Wyden of Oregon or Cory Booker of New Jersey – had two options: They could sign on with Cheney and the GOP, or they could bolster the president. They chose the latter, and handed Obama a victory that wasn’t guaranteed.

Bouie is not surprised:

Change a few details, and you have the dynamic of early 2010, when a desperate Democratic Party wanted bipartisan support for a health care bill, and would take any compromise to pass a law. In that moment Republicans were primed to win the substance; they could deny the Democratic goal of universal health insurance and show their concern for the least fortunate with a piecemeal and limited health reform law. Instead, they wouldn’t budge, which forced Democrats into a choice: They could save the Affordable Care Act and pass it as written, or they could end the fight with nothing. They chose the former, and gave Obama the law that may define his legacy. Likewise, if House Republicans could just compromise and accept the presidential “grand bargain,” the party would have won cuts to major retirement programs, entrenching a new, conservative status quo. Now, four years later, it stands against an emerging liberal consensus for expanding Social Security and the welfare state.

The Republican Party does this to itself again and again:

Its intransigence might win elections – Obamacare helped the GOP win the 2010 midterms, and Republicans hope that Iran will do the same for 2016 – but it comes at a cost: policy that’s more liberal than the alternative.

Joshua Keating, however, thinks Obama may have pulled off a power grab here:

Back in April, when President Obama agreed to allow Congress to vote on the then-still-under negotiation nuclear accord with Iran, it was widely covered as a surrender by the White House. In retrospect, it was a great move by the White House. The congressional review process, which effectively came to an end Thursday when Senate Democrats blocked a resolution disapproving of the Iran deal, gave the appearance of congressional debate on the agreement, but the deck was always stacked heavily in the White House’s favor. In fact, the way the deal was orchestrated sets a precedent for expanded executive power that should concern even those who support this president and this deal.

His reasoning is this:

The U.S. has two major ways of entering into international agreements: treaties and executive agreements. Treaties are legally stronger but harder to pass, because they require a two-thirds majority in the Senate in order to ratify. For that reason, executive agreements, which don’t require congressional approval, have become far more common, though generally for less consequential agreements than the Iran deal.

And that’s the problem:

The White House never sought to make the Iran deal a treaty. Was this a legitimate move? Republican senators certainly don’t think so, and the lesser status of an executive agreement was the major point of Sen. Tom Cotton’s infamous open letter to the government of Iran back in March. But the law is frustratingly ambiguous on which agreements are important enough to rise to treaty level. According to the Congressional Research Service: “As a matter of historical practice, some types of international agreements have traditionally been entered as treaties in all or nearly every instance, including compacts concerning mutual defense, extradition and mutual legal assistance, human rights, arms control and reduction, environmental protection, taxation, and the final resolution of boundary disputes.” Then-Sen. Joe Biden objected in 2002 when President George W. Bush tried to make a handshake deal on nuclear arms reduction with Vladimir Putin rather than submitting it to the Senate as a treaty. As President Obama has frequently pointed out, the Iran deal differs from past deals with Russia because it does not require the U.S. to cut its own arsenal. But still, given its economic and national security implications, the deal is at least the kind of agreement that has been negotiated as a treaty in the past.

Unfortunately, that’s no longer possible:

The last major treaty approved by the Senate was the New Start arms control agreement with Russia, narrowly passed in 2010. That feels like a long time ago. In today’s political context, it’s hard to imagine two-thirds of Congress voting to ratify a treaty on anything more controversial than fisheries management. (The White House is planning a similar end run around Congress for the upcoming U.N. climate agreement.)

Now everything is ambiguous:

Within the category of executive agreements, there are gradations. There are “congressional-executive agreements,” in which Congress authorizes the president to negotiate an agreement – trade deals like NAFTA, for example – and “sole executive agreements” backed only by the president’s executive authority. Which is the Iran deal? It’s not exactly clear. Some legal scholars argue that the Iran Nuclear Agreement Review Act, which set up the review process, was a NAFTA-like authorization to negotiate. Others say it was nothing of the sort, and that the Obama administration has consistently said the deal is “nonbinding.” The distinction matters as it could determine whether the next president actually has the authority to tear up the deal “on day one,” as several Republican candidates have promised.

Either way, the review process that Congress agreed to muddied the waters significantly, giving the White House the appearance of winning a vote in Congress that never had to be held in the first place…

And here’s what we have now:

Instead of two-thirds of the Senate having to agree to a deal on the table, two-thirds of both the Senate and the House had to disagree in order for it not to go into effect. Nothing done was illegal. As the conservative legal scholar Jack Goldsmith wrote, the administration “cleverly stitched together the president’s authority to lift domestic sanctions, his authority to make political agreements, and his authority to vote for the United States in the Security Council, in order to make sure the Iran Deal would stick unless super-majorities of Congress reject it.”

But this new category of agreement, which seems to have more political and legal authority than one the president negotiates alone, stacks the deck heavily in the White House’s favor. It seems likely that future administrations, faced with agreements on major issues of war and peace, will seek to replicate the model.

That is a worry, but the immediate worry for Republicans is that once again they’ve been reduced to doing no more than making useless trouble. They couldn’t block the Iran deal. All that’s left are empty gestures – perhaps another government shutdown that cannot possibly get them what they want. What would that prove? They have become the party of empty gestures. Iran is the least of their worries.