United States: Senate Adopts Iran Nuclear Agreement Review Act
Bill Heads To House

On May 7, 2015, the US Senate voted 98-1 to adopt the Iran Nuclear Agreement Review Act of 2015 (the "Act").¹ The Act is the culmination of months of legislative maneuvering and a debate over foreign policy and separation of powers issues that has cut across ordinary political and partisan lines—notwithstanding the final vote. Legislative focus on the Act—and the underlying debate about a potential nuclear agreement between the "P5+1"² and Iran—now turns to the House of Representatives. We analyze below the key elements of the Act.

Key elements of the Act

Submission to Congress for review

The Act³ requires the President to submit to Congress, no later than 5 days after the US reaches an agreement with Iran⁴ on its nuclear program: (1) the agreement itself; (2) a verification assessment report; and (3) a certification.

In the verification assessment report, the Secretary of State must assess the extent to which the US will be able to verify Iran's compliance; the adequacy of safeguards ensuring Iran will not be able to "further any nuclear-related military or explosive purpose"; and the capabilities of the International Atomic Energy Agency (IAEA) to verify Iran's compliance.⁵

The certification is two-part. By its terms, the Act requires that the President certify that the agreement:

• includes "the appropriate terms, conditions, and duration of the agreement with respect to Iran's nuclear activities", as well as "provisions describing any sanctions to be waived, suspended, or otherwise reduced" by the United States and any other nation or entity, including the UN; and
• meets US non-proliferation objectives, does not "jeopardize" common defense and security, provides an "adequate framework" ensuring Iran's nuclear activities will not present an "unreasonable risk" to the common defense and security and ensures Iran's permitted nuclear activities will not "further any nuclear-related military or explosive purpose".

Congressional review and freezing of statutory sanctions

After the President has submitted the agreement, Congress will have 30 calendar days to review it.⁶ This window is extended to 60 calendar days, however, if the President transmits the agreement anytime between July 10, 2015, and September 7, 2015. This additional 30 days is noteworthy because under the current Joint Plan of Action, the P5+1 has until June 30, 2015 to reach an agreement with Iran. But the P5+1 may once again require additional time, just as it did when the "headline agreement" was reached a few days after its original deadline of March 30, 2015.⁷

During the congressional review period, the Act prohibits the President from waiving, suspending, limiting or otherwise refraining from applying statutory sanctions with respect to Iran.⁸ There are two express exceptions. First, the Act permits the President to impose statutory sanctions relief during the period of congressional review if Congress adopts a joint resolution stating in substance that it favors the agreement. Second, the Act permits the President to impose statutory sanctions relief, if after the period of congressional review, Congress has not adopted any joint resolution.

If Congress adopts a joint resolution expressly disapproving of the agreement, however, then the prohibition on sanctions relief automatically extends for potentially up to 22 calendar days. After a joint resolution of disapproval, the President is prohibited from waiving, suspending, limiting or otherwise refraining from applying Iran sanctions for 12 calendar days. The prohibition is then further extended for 10 calendar days following a Presidential veto of such joint resolution of disapproval. After that 10-day period, however, there are no further extensions of the prohibition provided under the Act, meaning that the President would then be free to provide sanctions relief.

Ongoing certification; Reinstatement of statutory sanctions

The Act requires the President to keep Congress informed of "all aspects of Iranian compliance" and any breach of the agreement. Specifically, the President must inform Congress within 10 calendar days of receiving "credible and accurate information" relating to a "potentially significant" breach or "compliance incident." Within 30 calendar days after submitting such a report, the President must determine whether the breach or incident constitutes a "material breach" and whether Iran has since "cured" that breach.⁹ While "material breach" and "noncompliance" are both defined under the Act, "compliance incident" is not; this may result in some disagreement as to what constitutes a reportable event.

The President must then certify every 90 days whether Iran is "transparently, verifiably, and fully implementing" the agreement, that no material breaches have occurred or have otherwise been cured, that Iran has not advanced its nuclear weapons program, and that sanctions suspensions are proportional to Iran's compliance and vital to US security. If the President does not provide the 90-day certification, or in the event of a breach, the Act enables Congress to expedite legislation reinstating statutory sanctions.¹⁰

Implications

As passed by the Senate, the Act would temporarily bind the President from enacting any sanctions relief under an agreement with Iran, during which time Congress could review and pass judgment on the agreement by means of a joint resolution. But the Act ultimately does not bar the President with going ahead with an agreement and related sanctions relief. Moreover, although the Act has a number of provisions regarding what Congress expects from any change to the sanctions regime under an agreement—i.e., that sanctions on Iran for terrorism, human rights abuses and ballistic missiles will remain in place—the Act does not impose conditions on an agreement.

The House may make amendments, which in turn would require adoption by the Senate before the Act goes to the President. But even if the House passes the Act as it stands now, and even if the Act becomes law, the tussle between legislative and executive prerogatives with respect to the Iranian sanctions regime will require active monitoring. This is not only because of the potential for further changes without advance notice, but also because the Act as it stands now contains a number of ambiguous terms and accords significant discretion to the President. Further changes could occur, moreover, in light of the details that emerge from the ongoing negotiations between the P5+1 and Iran.

Footnotes

1Senator Tom Cotton (R-AR) voted against the bill; Senator Barbara Boxer (D-CA) did not vote.

2 The P5+1 comprises China, France, Germany, Russia, the United Kingdom and the United States.

3 The Act amends the Atomic Energy Act of 1954 (42 USC 2011 et seq.) by adding new Section 135.

4 Although it is the six countries of the P5+1 that are negotiating an agreement with Iran, the Act defines "agreement" to be any agreement that makes commitments on the US, not commitments on the P5+1.

5 The Act provides that in preparing the verification report, the Secretary of State "shall" assume that Iran could "use all measures not expressly prohibited" by the agreement to conceal violations and "alter or deviate from standard practices" to impede verification.

6 The Act provides that the Senate Foreign Relations Committee and the House Foreign Affairs Committee will hold hearings.

7 See Dentons' Client Alert "Parameters on Iran nuclear deal reached, offers path for sanctions relief".

8 Although "statutory sanctions" is not a defined term, it appears they refer to those sanctions imposed by the President pursuant to specific authorization under laws such as the Iranian Sanctions Act, the Comprehensive Iran Sanctions, Accountability, and Divestment Act, the Iranian Threat Reduction and Syrian Human Rights Act, the National Defense Authorization Act of FY2012 (Section 1245), and the Iranian Freedom and Counterproliferation Act.  "Statutory sanctions" would thus seem to exclude those sanctions adopted by the President solely pursuant to the President's authority under the International Economic Emergency Powers Act (IEEPA) and under the Constitution."

9 The President must also submit a semi-annual report to Congress on Iranian compliance with any agreement, detailing among other things any delays or other acts of noncompliance, the military aspects of Iran's nuclear program, Iranian financial institutions' engagement in money laundering or terrorist finance activities and human rights violations.

10 The Act would expedite by, among other things, limiting the motions which may be made, and significantly restricting the time for debate.

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