How Obama Can Bypass Congress and Ease Sanctions on Iran

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.

“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.

(Related: Unwinding 34 Years of Sanctions on Iran Won't Be Easy)

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.

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.’ ”