I've got a newsflash for a bunch of folks here:
If the president signs a deal with Iran, it qualifies as a treaty under US law, and it must be ratified by the Senate. However, Obama can also enter into an executive agreement with Iran which would essentially do an end run around Congress. The catch there is that it is legal. Why? Because there is precedent, in WWII, FDR went around Congress to send arms and assistance to Britain.
One of two things will happen:
1) Let's say he signs a deal, that makes it a treaty that must be ratified by the Senate:
In Reid v. Covert 354 U.S. 1 (1956) the court held that our Constitution must be be regarded above a negotiated or finalized treaty between the United States and a foreign nation.
In this ruling, the Reid court stated:
"No agreement with a foreign nation can confer power on the Congress, or any other branch of government, which is free from the restraints of the Constitution. Article VI, the Supremacy clause of the Constitution declares, "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all the Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land...’
"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution nor is there anything in the debates which accompanied the drafting and ratification which even suggest such a result..."
"It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights – let alone alien to our entire constitutional history and tradition – to construe Article VI as permitting the United States to exercise power UNDER an international agreement, without observing constitutional prohibitions. (See: Elliot’s Debates 1836 ed. – pgs 500-519).
"In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and Senate combined."
2) Obama enters into an executive agreement, which has the force of an executive order, and legal as far as article 2 is concerned. However, the first paragraph in the above scenario applies here also, the key word is "agreement." The ruling mentions both treaties and agreements made by any branch of government with foreign nations.
More from the Reid ruling:
"There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty For example, in Geofroy v. Riggs, 133 U.S. 258, 267, it declared:
The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.
This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument."
