I have been wearing readers and my keyboard out for five months over the Republican strategy that abets President Obama’s aiding and comforting of Iran, rather than fighting it with every tool in the constitutional chest. These critiques of the Corker bill (enacted in May as the Iran Nuclear Agreement Review Act of 2015) have seemed unduly harsh to some GOP leaders and right-of-center pundits.
There is a purpose, however, behind my Cassandra-like lament: I have been trying to minimize the damage by persuading Congress to avoid giving the president’s atrocious deal — in particular, its erasure of the sanctions regime that had been squeezing the Iranian regime — the status of formal law.
By contrast, formal law binds our country. Laws must be faithfully executed by presidents — at least presidents not named Barack Obama.
It was clear to me that the Corker law, an authorizing statute, was Obama’s path to making the Iran deal binding law.
Alas, what I warned against is coming to pass. The Left has wasted no time cashing the GOP’s Corker check.
RELATED: How Obama Swindled America on Iran
On Thursday, Senate Democrats successfully filibustered a Republican attempt to pass a futile “resolution of disapproval” against the Iran deal. Republicans had already forfeited their power to suspend the Corker review process. They would have been justified in suspending it because Obama failed to comply with the statute’s fundamental condition — the mandate that he disclose the whole agreement to Congress, including embarrassing “side deals” the administration has withheld. (These undeniably include understandings between Iran and the International Atomic Energy Agency on the critical issue of inspections; they probably also include commitments by Obama to protect several nations from “snapback” sanctions when, inevitably, Iran violates the agreement.)
Under Corker, which not only rigged the vote in Obama’s favor but also gave Democrats the option to prevent the vote by filibuster, the failed resolution authorized Obama to relieve sanctions against Iran’s nuclear program. The mullahs will get their cool $100 billion and double down — no, quintuple down — on their promotion of jihadist terrorism.
Here’s the “I told you so” part: No sooner had the Democratic filibuster succeeded than did two well-regarded legal scholars take to the pages of The Atlantic to pronounce that Obama’s Iran deal is the law of the land. Yale’s Bruce Ackerman and New York University’s David Golove contend that the agreement cannot be unilaterally repudiated by a future Republican president, no matter how much GOP congressional leaders and 2016 hopefuls bloviate to the contrary.
This conclusion will shape bipartisan conventional wisdom in Washington and the chattering class. And guess what? The progressive professors have a strong case because of the way the Corker law was written by GOP congressional leaders (in consultation with their Democratic counterparts and the White House). Corker’s law is quite plausibly interpreted as authorizing a full repeal of the sanctions against Iran’s nuclear program — meaning they could not be reinstated absent new legislation (which the Democrats and the “international community” would vigorously oppose). Certainly the odds are good that the federal courts would see it that way. (Did I mention that Senate Republicans have already confirmed over 300 Obama appointees to the bench?)
This is why I felt obliged to fight the Corker bill tooth and nail. As Ackerman and Golove posit, when executive agreements “have their foundation in congressional statutes authorizing the president to commit the nation,” then those statutes and the agreements they have authorized become “the supreme law of the land” every bit as much as treaties are.
The professors are transparently supportive of Obama and his Iran deal, so it is unsurprising that they overstate the case. They argue that the Corker law “explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” This is an exaggeration to the extent it implies that Congress, by enacting an authorizing statute, can empower the president to make any conceivable international agreement. Statutes may only regulate what the Constitution allows Congress to regulate; executive agreements must comply with the Constitution, statutes, and ratified treaties.
There is no question that the Constitution authorizes Congress to regulate international commerce. The sanctions are regulations of international commerce.
Yet, that caveat is beside the point when it comes to the Iran deal. There is no question that the Constitution authorizes Congress to regulate international commerce. The sanctions are regulations of international commerce, and so is the Corker statute insofar as it expressly authorizes the president to grant “statutory sanctions relief.”
This fact has eluded Iran-deal dissenters who failed to grasp that the Corker bill was a blunder — such as Senator Marco Rubio (R., Fla.), the GOP presidential hopeful whose denial that Obama’s Iran deal is legally binding on the next president appears to have provoked Ackerman and Golove’s column.
Senator Rubio and other Corker supporters seem to assume that because Obama did not submit the Iran deal as a treaty, it is just a non-binding executive agreement that the next president can unilaterally renounce. That might have been true had it not been for the asinine way in which the Corker legislation was crafted.
Corker critics have justifiably hammered the point that the legislation improperly reversed the Constitution’s presumption against international agreements. But what many critics have missed (though I’ve tried to alert them, e.g., here, here, and here), is a separate problem: namely, the fact that no treaty is necessary for Congress to authorize the president to relieve sanctions.
Rather than addressing Obama’s Iran deal as an indivisible whole to be voted up or down as such, Corker foolishly broke off a single component of the deal, the statutory sanctions against Iran’s nuclear program. Yes, Corker provides for Congress to review “the agreement” as a whole — that, obviously, is why it requires Obama to disclose the full agreement (a mandate the president has ignored). But under Corker, the vote to approve or disapprove the deal relates to only one discrete aspect of the deal: whether Obama is authorized to relieve the sanctions.
On this narrow point, the failure to comply with the Constitution’s Treaty Clause is irrelevant. Again, Congress’s power to regulate international commerce is separate and apart from the Senate’s treaty power. A treaty is no more needed to repeal sanctions than to impose sanctions in the first place. Congress imposes sanctions by statute, and it can amend or repeal them by statute. Corker is a statute and it clearly authorized Obama to provide Iran with sanctions relief.
With buyer’s remorse setting in, Corker supporters are reduced to insisting that the statute did no real harm. Thus, though they grudgingly acknowledge that Corker authorized Obama to give sanctions relief, they maintain that it did not permit him to completely eliminate the sanctions. This claim hinges on a highly debatable interpretation of the Corker provision on the “Effect of Congressional Action with Respect to Nuclear Agreements with Iran” (which is now section 135(c) of the Atomic Energy Act). The argument stresses that where the statute authorizes Obama to give Iran “any measure of statutory sanctions relief,” it also says such measures must be “consistent with existing statutory requirements.” Since existing-sanction statutes allow the president only to “waive” the sanctions not repeal them, Corker apologists reason that Obama must not be authorized to repeal them.This is a dubious reading of the statute. First, a court is most unlikely to believe Congress went to the trouble of prescribing an elaborate array of potential sanctions relief if it was really just telling Obama he could not alter the status quo. Second, the provision takes pains to say that it is essential that Congress have an opportunity to review the deal and vote on any sanctions relief because “only Congress can permanently modify or eliminate” a “sanctions regime that was imposed by Congress” (emphasis added). This is reasonably interpreted as (a) a congressional recognition that Obama’s Iran deal would propose to “permanently modify or eliminate” the sanctions, and (b) a determination that the Corker review process would allow Congress to vote its approval or disapproval. Finally, the Corker statute provides a definition of “action involving any measure of sanctions relief” that it authorizes Obama to take (as long as Congress does not enact a resolution of disapproval). The definition is extensive, enabling Obama to execute a
waiver, suspension, reduction, or other effort to provide relief from, or otherwise limit the application of statutory sanctions with respect to, Iran under any provision of law or any other effort to refrain from applying any such sanctions [emphasis added].
It will be difficult to argue that this copious authorization does not green-light a permanent elimination of the sanctions — especially given that (a) the statute expressly states that the process it prescribed to review and vote on the agreement was necessary because Congress must assent if statutory sanctions are to be “permanently . . . eliminate[d]”; and (b) Congress could very easily have said, “The Iran agreement may not permanently eliminate the sanctions,” if that was what lawmakers had in mind.
Professors Ackerman and Golove thus make a persuasive case that executive agreements are binding law to the extent their terms are authorized by statute, and that the Corker law is a such a statute, authorizing the president to repeal statutory sanctions against Iran’s nuclear program.
Republican leaders heedlessly insisted on enacting the Corker law in their obsession to exhibit bipartisanship rather than be the loyal opposition intent on tending to the nation’s security. In so doing, they have paved the way for Obama’s disastrous deal to have the force of law, at least where the all-important sanctions are concerned. Why else do you figure that almost all congressional Democrats voted for the Corker bill and Obama quickly signed it?
I see only one way out of this: Republicans must abandon the Corker law. On this score, Obama has given them a gift. By failing to disclose the entire agreement by July 19, he has defaulted on the condition that triggers the Corker review process. A statute does not authorize a president to take action unless the president complies with the statute’s requirements. It is thus not too late for Senate majority leader Mitch McConnell (R., Ky.) to propose and push through a resolution declaring that Obama’s default renders the Corker review process moot. That Senator McConnell has stubbornly refused to do this boggles the mind.
If Republicans call Obama on his lawlessness, the sanctions can be preserved. If they are derelict, their Corker law will have done what I feared it would do: prevent the next president from undoing Obama’s empowerment of our enemies.
Don’t say you weren’t warned.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.