The Obama administration’s determination to take the Iran deal to the UN Security Council before Congress votes on the agreement has set off a firestorm on Capitol Hill, with leading Democrats joining Republicans in calling on the President to wait. On Tuesday, Secretary of State John Kerry boasted that by having the Iran deal incorporated in a UN Security Council resolution, President Obama could tie the hands of future presidents, legally obligating them to abide by the Council’s resolution. From Foreign Policy:

“If Congress were to veto the deal, Congress — the United States of America — would be in noncompliance with this agreement and contrary to all of the other countries in the world. I don’t think that’s going to happen,” U.S. Secretary of State John Kerry told reporters Tuesday.

Congress isn’t happy. Late Thursday, Senator Ben Cardin of Maryland, the highest ranking Democrat on the Senate Foreign Relations Committee joined the Republican chair of the committee, Senator Bob Corker, in calling on the White House to hold its horses at the UN until Congress votes. As The Hill reports, Cardin told the press that:

“Acting on it at this stage is a confusing message to an independent review by Congress over these next 60 days. So I think it would be far better to have that vote after the 60-day review, assuming that the agreement is not effectively rejected by Congress,..”

On Friday, the House leadership spoke up as well. Democratic Whip Steny Hoyer (also of Maryland) issued the following statement:

I agree with Senators Cardin and Corker that the U.N. Security Council should wait to move ahead with a resolution implementing parts of the Joint Comprehensive Plan of Action until after Congress has completed its review of the agreement with Iran. I believe that waiting to go to the United Nations until such time as Congress has acted would be consistent with the intent and substance of the Iran Nuclear Agreement Review Act. 

Neither Cardin nor Hoyer is considered part of the liberal wing of the Congressional Democrats, and the President can still count on significant Democratic support. But if the Administration decides to press forward at the Security Council before the 60 day review period mandated in the carefully crafted bipartisan compromise that Cardin and Corker worked out last spring, the White House could face a serious revolt.

Dissing Congress is a risky move for American presidents. There have been widespread reports that many Democrats on Capitol Hill would like to support the President’s Iran policy, but are worried about the political fallout among voters back home. In the end, many of these waverers would probably support the President on the Iran deal in a straight up Congressional vote, but if the President does an end run to the Security Council, the waverers could—and many will—oppose him on procedural grounds. Both the Senate and the House are jealous of their Constitutional prerogatives, and voting to uphold the powers of Congress is a much easier vote for Democrats than voting against the President on an important foreign policy issue.

This is not likely to end well. President Obama was stretching both his Constitutional powers and his political mandate when he decided to short circuit the treaty process for one of the most important decisions that American foreign policy has taken in many years. There is precious little doubt that the Founders would have considered this a threat to the system of checks and balances they wrote into the Constitution. In modern times, presidential authority has expanded, largely because American foreign relations have become so complex and the world moves so quickly that it would be impractical to subject every significant agreement between the United States and other countries to the treaty process. But given the length of this negotiation process and the enormous stakes involved, the Iran agreement really ought to have been framed as a treaty. The President, to be fair, knew very well that he could never get a two thirds vote in the Senate for this agreement, and, believing as he does that this step is necessary to the safety of the United States, he framed the deal as an executive agreement to avoid exactly the scrutiny and vote that the Constitution requires.

Congress grudgingly went along with that, passing the Corker-Menendez law as a way of regularizing the President’s irregular choice. This tilted the playing field toward the President, as opponents would need a two thirds majority in both houses (instead of only a one third majority in the Senate) to block the deal for good.

That the President is blowing off this concession by Congress is a serious matter—more serious perhaps than the White House realizes. He is really requiring Congress to accept a permanent and significant diminution in its power for the sake of an Iran deal that few members view with enthusiasm. The precedent he is setting changes the Constitution, essentially abrogating the treaty power of Congress any time a President can get a Security Council resolution to incorporate the terms of an executive agreement.

Regardless of the merits or demerits of the Iran deal, this is the wrong way to proceed. If President Obama chooses to go this route, he is provoking a constitutional crisis in order to get sanctions relief to Iran sixty days faster than would otherwise happen. The Congressional Democrats calling on President Obama to refrain from this mischievous and foolhardy course are quite right; this is a bridge too far.