On Thursday, 42 Senate Democrats voted to filibuster a resolution of disapproval of the Iran nuclear deal. That unprincipled partisan move not only deprived the Senate of a vote on the deal that the body had granted itself by a 99-1 vote earlier this year. It also seemed to close off any chance that Congress could block the implementation of the pact championed by President Obama. Indeed, the filibuster engineered by the Democrats ensured he would not even have to veto the resolution that was passed by the House on Friday. Understandably that has caused most observers to stop talking about the failure of the deal’s critics to stop it and instead to start discussing exactly how quickly Iran will start getting the money and sanctions relief President Obama has promised it. But some opponents are not giving up.
In Politico, Senator Ted Cruz writes that the fight isn’t over. Cruz echoes the defiance of House Republicans who correctly point out that as long as the text of a side deal between Iran and the International Atomic Energy Agency is kept secret, the administration hasn’t complied with the Corker-Cardin bill and it can’t be put into effect. He says that means any implementation of the agreement will be illegal and that Congress can act in such a way as to make that position stand up. That raises two questions. The first is whether his stance is correct. The second is whether opponents of the president’s policy believe further resistance is not only futile but also counter-productive. Though Congressional leaders are inclined to view anything Cruz says as ill-advised, he might not only be right but his plan of action could lay the foundation for Obama’s successor to throw the deal out.
Let’s concede up front, as Cruz does himself, that nothing the House or the Senate does at this point will prevent President Obama from putting the deal into effect. The administration doesn’t concede that the Iran-IAEA agreement is part of the actual deal and will, on the strength of the Senate filibuster treat it as if Congress has approved it.
Yet as I noted last week, House Republicans such as Rep. Mike Pompeo, who have raised the question of the side deal, are exactly right. The text of the Iran Nuclear Review Act of 2015 put forward by Senators Bob Corker and Ben Cardin, was clear that every aspect of any nuclear deal signed by the West with Iran had to be disclosed to Congress before the 60-day review period, during which a resolution of disapproval might be put forward and could be triggered. Since the Iran-IAEA deal about inspection of the Parchin military site has not been divulged to Congress, the review period did not begin when the Joint Comprehensive Plan of Action embraced by the president was presented to Congress in July.
A majority of the House has embraced this stand, and Cruz asks House Speaker John Boehner and Senate Majority Leader Mitch McConnell to jointly endorse that position. He also would like McConnell to schedule a symbolic sense of the Senate resolution that would state that the deal would not have been ratified had it been presented, as it should have been, as a treaty and had to follow the Constitutional process that would have required 67 votes for approval.
Lastly, Cruz wants the Congressional leadership to issue a formal warning to banks that are currently holding the billions in frozen Iranian assets that the deal would have to release to Tehran. They would be told that if they listen to President Obama and let the funds go to the Islamist regime they risk being hauled into court and face onerous civil and perhaps even criminal penalties once a new administration is sworn in.
Some Republicans – especially Boehner and McConnell – are inclined to view anything Cruz says as self-serving and a recipe for endless and pointless strife. He has made a lot of enemies on his own side of the aisle since entering the Senate in January 2013. McConnell is still angry over Cruz calling him a liar in July during their dispute about the renewal of the Export-Import Bank. Nor has the GOP leadership forgiven him for helping to push Congress into the 2013 government shutdown or his threats about another one this year about defunding Planned Parenthood.
Yet in spite of their hard feelings, they should be listening to him on this issue.
While Congress can’t actually stop Obama from acting as if the deal is legal, it should be taking all appropriate steps to defend its rights as it fights a rear-guard action against a nuclear agreement that is a dangerous act of appeasement. Congress can sue the president over this and should. As it happens, earlier this week a Washington D.C. federal judge ruled that the much-mocked Congressional lawsuit against the president for rewriting the ObamaCare law without proper legislative authority can move ahead. That means a similar suit that might be pursued about the illegal implementation of the Iran deal is also theoretically viable.
The president gained a victory when Senator Corker foolishly allowed himself to be gulled into writing a bill that created a reverse ratification process that let the deal be passed with only 42 Senate votes rather than Constitution’s mandate of 67. But that also means that it does not have the force of law and can be thrown out with legal impunity by his successor. Even if it takes years to win in court, a suit that points out the illegal nature of the implementation will make it easier for a Republican president to do that. That will make the threats of legal consequences for the banks that deliver money to Iran even more credible. Congress should also move ahead with legislation toughening the sanctions on Iran and making it difficult if not impossible for Obama to move forward with his goal of détente with the Islamist regime.
Though it feels like the fight over Iran is over, Cruz is right that it doesn’t have to be that way. For now, Obama will have his way but by not conceding the battle, Boehner and McConnell will be preparing the way for this appalling betrayal of principle by the president to be eventually discarded, as it should have been had not Congressional Democrats valued partisan loyalty over their responsibility to defend the U.S. and its allies. Establishment Republicans can roll their eyes at Cruz, but he’s right about this. Democrats now own Iran and its crimes for the foreseeable future and the GOP as well as friends of Israel should not be shy about pointing who are the guilty men and women who backed appeasement. Not giving up isn’t a waste of time. It’s actually the prudent and the politically smart thing to do.
Previous posts have discussed the jurisdictional and statutory questions involved in possible judicial challenges to sanctions relief pursuant to the Joint Comprehensive Plan of Action. Here I will sketch what seems to me the most effective way of ensuring prompt judicial review of these issues – a two-pronged litigation strategy involving both Congress and the several states. At the end, I’ll return to some questions about congressional standing in response to insightful comments by Prof. Josh Blackman.
The first step would be for the House to challenge any sanctions relief declared by the President. Such a case raises novel and complex standing questions. While a recent D.C. Federal court decision opens the door to such suits, it is not clear how wide, and the House may be found to not have standing. Yet even in such a situation, the suit could be important.
Even if a House suit fails on standing grounds – and there is no disgrace in a case not being judicially revieable – it would help shape judicial perceptions of the equities of subsequent suits involving states, where standing will not be in question. That is, the House’s vigorous assertion in court of a separation of powers violation, even if not ruled on, could give added credibility to subsequent separation of powers claims in litigation involving the states. If Congress tried but failed on a jurisdictional issue, it still gives the substantive issue the dimension of a major dispute between co-equal branches about federal statutes and foreign trade legislation, rather than states questioning Executive decisions.
For example, when the Line-Item veto act was passed, some congressmen who opposed it challenged it in court. They were found not to have standing (this does not weaken congressional standing in our case, where it would be the House in its institutional capacity, not simply a few members on the losing side of a vote bringing the suit). However, subsequently, when New York City and private groups affected by the Line Item Veto brought suit, their justiciable and ultimately successful case may have seemed more serious in light of the prior legislative challenge.
The states’ role
Dozens of states currently have Iran sanctions in place. Many of these are tied to the federal sanctions scheme, such that the state sanctions automatically terminate when the federal ones do. The simplest strategy for states is to insist on the ongoing validity of their sanctions even after President Obama purports to order sanctions relief.
The states can follow the House’s lead, and say they do not regard Corker-Cardin as having been complied with, and thus their sanctions remain in place. Indeed, the non-compliance with Corker-Cardin will protect state laws from preemption, as even the robust version of “executive policy” preemption in Giaramedi does not apply when the executive policy is blocked by express legislation.
(So far I, have assumed the the Executive will argue that Corker-Cardin gives him broad new sanctions cancellation power that he will purport to use; obviously, the existence power depends on compliance with that authorizing statute. If the Executive merely purports to be using previous waiver authority, which I doubt he will be content to do, then there is a reasonable argument, though no slam-dunk, that such authority is frozen pending Congress’s review of the full deal.)
State sanctions offer many routes to judicial review. First, the state can itself bring enforcement actions. State and lower federal court rulings in enforcement suits would also give courts an opportunity to rule on the legality of sanctions relief, but would not immediately bind the federal government.
However, the ongoing enforcement of such sanctions will put the Administration in a bind. On one hand, it will want the Justice Department to bring a prompt preemption challenge against the state laws. On the other hand, that would squarely expose the Administration’s Corker-Cardin compliance to judicial review, and a judgement would be fully and generally binding on the Executive. Even if the odds were against such a ruling, that would be a huge risk for the Administration to take with one of its signature accomplishments, especially right before an election.
On the other hand, the Administration would not be able to sit back and watch states enforce their sanctions. Indeed, President Obama seems to have promised Iran to not abide by such a scenario. The regulatory uncertainty of ongoing state sanctions would have a significant deterrent effect on companies, while the ongoing legal uncertainty over the sanctions relief would itself tend to destabilize the deal. And the President would have to worry that a possible successor could refuse to defend the deal in court, without having the expressly repudiate it, much as Obama declined a few years ago to defend the constitutionality of a federal law in United States v. Windsor.
Faced with this dilemma, and generally confident of the strength of its position, the Administration will most likely bring a preemption challenge, or intervene in a state proceeding, allowing for quick judicial review of the issues.
Congressional standing is now a real possibility because of the D.C. District Court’s ruling in House of Representatives v. Burwell. Josh Blackman argues that the House’s claims about the Iran deal would not meet the test set up by Judge Collyer in the case, while at the same time criticizing the distinction that test is based on. I am sympathetic to those criticisms. In the broader picture, the D.C. Circuit Court of Appeals’ ultimate decision on the institutional legislative standing will not depend on the precise test articulated by the District Court, and if it arrives at the same result, it may be based on somewhat different reasoning. Thus a broad qualification is in order – the analysis of House standing is quite speculative as the entire doctrine of such standing is at this point quite uncertain.
Judge Collyer required the House to assert a constitutional injury for itself, not a statutory one, or a complaint about the Executive’s improper enforcement of the law. However, as Judge Collyer understands, constitutional claims are typically embedded in a statutory matrix, not floating around in the legal ether. Indeed, typically private citizens cannot sue to enforce constitutional rights directly, without a statutory cause of action. The question the House would raise is not simply whether the president complied with Corker-Cardin, but whether subsequent sanctions relief violates the separation of powers.
The most fundamental point is that Congress could not exercise its legislative powers – the power to make binding votes on things – without the relevant materials. In effect, the non-transmission prevented congress from exercising its legislative function within the relevant legal framework. This is an issue of the president not just nullifying Congress’s vote, but precluding it.
Furthermore, characterizing the House’s injury depends in part on how the Executive characterizes its subsequent sanctions relief actions. If, as some argue, Corker-Cardin does not merely authorize the president to use preexisting waiver and suspension authorities, but rather to actually cancel existing sanctions legislation, the constitutional issues loom particularly large. In this view, Corker-Cardin effectively delegates a retroactive veto power to the president to cancel existing pieces of legislation. While sanctions and trade laws typically contain provisions for suspension or termination by the president upon certain contingencies, that authority is typically for the restrictions within the authorizing piece of legislation itself. In other words, each law has its own suspension provisions.
It would be fairly novel, I believe, for Congress to give the president cross-statutory nullification authority, not triggered by any particular executive findings – that is for a statute to authorize the president to cancel provisions of other statutes. This has some echoes of the line-item veto (yes, of course there are differences). But one need not say the delegation is impermissible to say that there is a separation-of-powers problem.
Delegated power to strike down duly enacted statutes is a fairly vast grant of legislative power; in this case, without any apparent limiting principles. Such broad delegation could only be done pursuant to explicit legislative authorization. If that authorization is conditional, i.e. conditioned in Corker-Cardin on reviewing the full agreement, then whether those conditions have been met becomes a very important separation of powers question.
Even if Corker-Cardin merely authorizes the president to use preexisting sanctions relief authority, rather than grant new ones, that authority is now modified by Corker-Cardin itself. Thus sunsetting sanctions without providing for the required prior congressional review could be cast as a legislative act by the president – permanently changing the effect of existing laws in a way not pursuant to law.
To paraphrase Judge Collyer’s standing ruling in Burwell into Iran deal terms:
Properly understood, the Non-Cancellation Theory is not about the implementation, interpretation, or execution of any federal statute. The Executive has cancelled existing statutory provisions regarding sanctions without congressional legislation – not merely in violation of any statute, but in violation of U.S. Const. art. I, § 7, cl. 2, requiring bicameralism and presentment for such action.
Of course, the Executive would then argue that the cancellation was pursuant to congressional authorization in Corker-Cardin, and the House would respond that Corker-Cardin does not apply because the review period was not triggered. So non-compliance with the transmission requirements regarding deal documents would certainly be a big part of the issues in the case, but it would not be injury claimed by the House.
Again, to put it in language of Judge Collyer’s opinion:
The House of Representatives as an institution would suffer a concrete, particularized injury if the Executive were able to cancel duly enacted federal legislation without a valid congressional authorization.