On June 14, 2017, the Senate took a big step towards reclaiming its prerogatives over the application of U.S. economic sanctions, including, in particular, the decision to lift and/or ease U.S. sanctions on a target State.
Acting on a clear bipartisan basis, the Senate voted overwhelmingly in favor of a broad amendment to the Countering Iran’s Destabilizing Activities Act of 2017 (S.722). In substantive part, S.A. 232 would amend and codify existing Executive sanctions targeting Russia and impose new statutory sanctions on Russia as well. Most importantly, the amendment would establish a formal Congressional review procedure for the lifting of sanctions targeting Russia under which Congress would be informed of and guarantee itself the right to block any proposed lifting of sanctions, including any licensing action that “significantly alters” U.S. policy towards the Russian Federation.
The push for the amendment came about soon after news reports erupted showing that the Trump administration had contemplated and pushed for the unilateral termination of the U.S.’s Russia sanctions program. That effort was reportedly blocked by career State Department officials who warned of the consequences of lifting the Russia sanctions without achieving the underlying policy objectives. Following the news reports, Senate Democrats threatened to delay a vote on the Iran sanctions bill absent Republican cooperation of new Russia sanctions measures. Upon agreement with Senate Republicans, the amendment (S.A. 232) was introduced by Senate Majority Leader Mitch McConnell (R-KY), acting on behalf of Senate Banking Committee (Sens. Mike Crapo (R-XX) and Sherrod Brown (D-OH) and Senate Foreign Relations Committee leadership (Sens. Bob Corker (R-TN) and Ben Cardin (D-MD)).
The amendment is extensive in scope, codifying and expanding existing sanctions targeting Russia while also imposing new sanctions measures on Russia. In effect, the Russia amendment has swallowed the Iran sanctions bill, which, as discussed elsewhere, would add little to existing Iran sanctions programs (other than buttressing the President’s current sanctions authorities).
Most interestingly, however, Section 216 of the Senate bill, as amended, would set up a formal Congressional review process for any Executive action aimed at terminating or waiving sanctions targeting Russia or engaging in a licensing action that significantly alters U.S. policy vis-à-vis Russia. Specifically, Section 216 would require the President to inform Congress of any proposed action (i.e., an action to terminate the application of sanctions; an action to waive the application of sanctions with respect to a person; or a licensing action that significantly alters U.S. foreign policy with regard to Russia) and the reasons for undertaking that action. Following the President’s submission of a report to Congress informing it of this proposed action, Congress would have 30 calendar days to hold hearings and briefings and otherwise interrogate the proposed action. During this review period, the President would be prohibited from implementing its proposed action.
Moreover, the bill would put in place certain expedited procedures for consideration of a joint resolution of approval or disapproval. If Congress were to pass a joint resolution of disapproval within the review period and that resolution were to survive a certain presidential veto, then the President would be prohibited from undertaking the proposed sanctions-lifting. However, if Congress failed to pass any resolution whatsoever; passed a joint resolution of disapproval that fails to survive presidential veto; or passed a joint resolution of approval of the President’s proposed action, then the President would be authorized to take the proposed action on the timeline provided for in the bill. In other words, Section 216 of the Senate bill makes it incumbent on Congress to take positive action barring the President from the proposed sanctions-lifting rather than mandating Congress’s prior approval before the action can be taken. (For what it is worth, Congress, as legislator, reserves the power to block any proposed Executive action or re-impose any sanctions lifted by the Executive at any time whatsoever. S.A. 232 merely establishes more favorable conditions for Congress to block the President’s proposed action by setting up a timeline for legislative action and barring the President from undertaking any proposed sanctions-lifting until Congress has had time to deliberate on the proposed action.)
Precedent for this Congressional review process was established by the Iran Nuclear Agreement Review Act of 2015 (INARA) – a law that likewise granted Congress a formal review period to evaluate any agreement reached with Iran prior to the lifting of sanctions. Under INARA, the President was obligated to transmit the text of an agreement reached with Iran and relating to Iran’s nuclear program to Congress no later than 5 calendar days following the conclusion of any such agreement. Following the President’s submission of the text of the agreement, Congress had 30 calendar days to review the agreement, including via hearings and briefings regarding the merits of the agreement. Both during and prior to the Congressional review period, President Obama was prohibited from “waiving, suspending, reducing, providing relief from, or otherwise limiting the application of statutory sanctions with respect to Iran…or to refrain from applying any such sanctions pursuant to an agreement,” an arguably more far-reaching limitation than that contained in the current Senate bill. As with S.A. 232, however, under INARA, Congress had to take positive action to prevent President Obama from lifting sanctions pursuant to the Iran nuclear agreement – action that failed to win passage in the Senate.
If enacted into law, the Senate legislation will evidence a pattern in which Congress exhibits its concern over proposed Executive action to terminate, waive, or otherwise reduce sanctions on a target State. Will provision for a Congressional review process be an element of U.S. statutory sanctions moving forward? That much is unclear, but nonetheless likely. Members of Congress proved wary of Obama’s lifting of sanctions in the context of Myanmar, Iran, and Cuba, and were exceptionally concerned over news reports that the Trump administration had considered a significant sanctions easing with respect to Russia. It will thus be no surprise if Congress asserts its prerogatives in a more serious fashion to deter the lifting of U.S. sanctions in any number of different contexts in the future. Whether such Congressional strong-arming will serve well the policy objectives underlying U.S. sanctions programs is an entirely different matter, however.