Congress’ Path Forward in a Post-JCPOA World

U.S. Secretary of State Antony Blinken leaves after speaking during a briefing at the State Department on August 2, 2021, in Washington, D.C.

The Biden administration’s plan to revive the 2015 Joint Comprehensive Plan of Action (JCPOA), also known as the Iran nuclear deal, no longer appears realistic, even if negotiations resume. But what comes next is far from obvious. The JCPOA may be on thin ice, but that does not mean the Biden administration is done pursuing some deal—any deal—with Iran. Congress should prepare accordingly.

For starters, when it comes to Iran, the Biden administration is in a tricky position. Tehran continues to tempt the administration with yet another round of potentially fruitless talks in Vienna (this would be the seventh round). Furthermore, following the recent presidential election of U.S.-designated terrorist Ebrahim Raisi, Tehran has signaled that no future deal will occur with the United States without more sanctions relief than that which was afforded in the 2015 agreement.

And it seems that message has been received. On Monday, U.S. Special Envoy to Iran Robert Malley stated that attempts to revive the JCPOA remained in a “critical phase” due to Tehran’s continued expansion of its nuclear program—meaning that despite Iran’s return to negotiations, a JCPOA revival remains uncertain (and unlikely).

If the Biden administration is forced to abandon the JCPOA, it has several paths it could take. The administration may seek to structure a new “maximum-pressure” campaign that is multilateral in nature (as opposed to the unilateral campaign waged by former President Donald Trump), or it may craft a new arrangement entirely (some sort of limited sanctions relief in exchange for a freeze on certain aspects of Iran’s nuclear program). Direct military pressure appears to be off the table, especially given our withdrawal from Afghanistan and the administration’s general desire to “exit” the Middle East (a notion we at JINSA highlighted in a recent report).

Given the administration’s emphasis on reviving engagement and diplomacy with Tehran, combined with an aversion to pursuing Trump-era policies, some form of “JCPOA-lite” seems likely. The contours of such an arrangement are not yet apparent, given that the Biden administration neither foresaw nor planned for a “plan B” backup to the JCPOA, despite encouragement from JCPOA skeptics to do precisely that.

Misplaced optimism crippled its approach. The Biden administration’s assumption that it could, in its own words, swiftly put Iran’s nuclear program “back in the box” through easily rejoining the JCPOA and then negotiating a “longer, stronger” deal was naïve, at best.

Whichever agreement the Biden administration ends up pursuing with Iran, Congress will have a brief window for action. Congress should prepare itself for action in the coming months—not only out of its purported interest in oversight vis-à-vis Iran, but because it has an affirmative statutory duty to do so, thanks to the Iran Nuclear Agreement Review Act of 2015 (INARA).

INARA is the only immediate arrow in Congress’ quiver. Under INARA, Congress has the right to review any arrangement the Biden administration negotiates with Iran on nuclear-related matters. Given talks with Tehran have stalled, Congress should be vocal about asserting its right to review all relevant materials. It can do so via public statements, floor speeches and direct communications with the administration.

Congress should also gird itself for what comes after a negotiated deal emerges. INARA demands that congressional review begin within five days of an agreement’s conclusion, with the onus on the administration to submit the deal for review in a timely fashion. Members should be prepared to schedule hearings with lead negotiators within the Biden administration and to call for briefings—both classified and open—upon the conclusion of the deal.

Given that the president cannot offer sanctions relief during INARA’s 30-day review period, the Biden administration may try to sidestep INARA and avoid congressional review out of a desire to conclude a deal more rapidly and assuredly. Congress should be prepared to push back publicly if that happens, for such avoidance would amount to sheer negligence.

There are some missteps Congress should avoid in its pursuit of oversight, as well. It has been suggested that Congress exercise INARA’s “legislative snapback” mechanism, which would guarantee a vote in both the House and the Senate to stop sanctions relief for Iran. However, this tool is available only during the 60-day window after the president fails to certify Iran’s compliance with the JCPOA—a certification that INARA requires to be performed every three months.

There are a few problems with this proposal. The United States is no longer an active member of the JCPOA, so there’s a non-trivial argument to be made that periodic certifications are no longer actually required under INARA. Furthermore, and more important, there are currently no sanctions to “snapback”—they were already “snapped back” during the Trump administration’s maximum-pressure campaign and have remained in place during the Biden administration. While Biden mulls whether to lift such sanctions, a resolution proposing a snapback before the sanctions have actually been lifted would look like grandstanding.

Congress should wait for a deal to be reached, but it should also actively remind the administration of its right to review once a deal is concluded. While it’s still unclear whether a deal would survive congressional review, thus far Democrats have refrained from mentioning INARA. However, it’s not a “done deal” that compliance certifications could be made every 90 days following the conclusion of an agreement, or that Congress would exercise the “legislative snapback” in response. Again, those concerned should use all mechanisms at their disposal to voice concern.

In short, those wary of future arrangements with Iran—and eager to provide substantive input—should use the tools available while avoiding ones that amount to mere political stunts. The overconfident assurances of an Iran nuclear deal revival, combined with the lack of any plan B to a failed revival, arguably evince a larger unpreparedness within the administration’s Iran bench—one that Congress would be smart to protect the country from within the confines of its constitutional powers.

Furthermore, given that a great deal of the discussion surrounding re-engagement with Iran has centered on criticisms of Trump, it is certainly worth examining whether re-engagement is actually in the best interests of U.S. national security or is instead simply reflective of a common political reflex to undo the work of an unpopular predecessor.

A weak deal with Iran is not a fait accompli, but Congress must get the order of operations right on any attempt at oversight. INARA is an imperfect piece of legislation, but it’s the only tool Congress has to review the successor to the potentially dead JCPOA. The Biden administration may not yet have a “plan B,” but Congress must.

Erielle Davidson is a senior policy analyst at Jewish Institute for National Security of America (JINSA). Follow her on Twitter: @politicalelle.

The views expressed in this article are the writer’s own.

Originally published in Newsweek