The Corner

How to Oppose Iran Deal — a Response to Paul Mirengoff

My weekend column posited that Congress can still derail President Obama’s catastrophic Iran deal by simply following the unambiguous terms of the Corker law – the Iran Nuclear Agreement Review Act of 2015, sometimes called Corker-Cardin, after Senate sponsors Bob Corker (R., Tenn.) and Ben Cardin (D., Md.).

On Saturday, Powerline’s Paul Mirengoff  posted a characteristically thoughtful response. Much of Paul’s analysis is sound, but I believe he gets a few important things wrong.

Paul writes (the italics are mine):

Andy suggests that if Corker-Cardin is followed, there will be a reasonable legal argument in 2017 that Congress repealed the (dormant) sanctions in 2015. However, I don’t see any merit in an argument that the Corker-Cardin process is sufficient to repeal an act of Congress (just as it isn’t sufficient to modify the NPT). In any event, Congress could pass a resolution affirming that it intends no such repeal.

There are several problems with this analysis.

1. It is the Corker law, not the Corker process, that repeals the anti-nuke sanctions.

To begin with, Paul misstates my argument: The sanctions are not being repealed by the Corker process; they were already conditionally repealed by the operative terms of the Corker law, which did much more than prescribe the futile “disapproval” process on which everyone is now hyper-focused.

I’ve addressed the common confusion between the law and the process in a new column today on the “Surrender … Then Fight” template that Republican leadership (in cahoots with senior Democrats and the White House) used for the Corker bill. Suffice it to say that the Corker law is an authorizing statute that conditionally repeals the congressional sanctions against Iran’s nuclear program. By contrast, the Corker review process is a provision of the Corker law that permits Congress to attempt to enact a “resolution of disapproval” against Obama’s Iran deal – an illusory process because there was never any chance that Democrats would allow such a resolution to be enacted over Obama’s certain veto.

I do not contend that this farcical process would have the effect of repealing the anti-nuke sanctions. I argue that the sanctions would be repealed because Congress already approved the repeal in the Corker authorizing statute back in May (subject to the condition that Obama disclose the entire Iran deal). The process scheduled to occur this month is just theater that was never going to result in a disapproval resolution and thus was never intended to have any real legal effect.

2. The statutory anti-nuke sanctions are conditionally repealed, not merely made “dormant” by the Corker law.

Many conservative commentators contend that because the Iran deal has been neither submitted by Obama to the Senate as a treaty, nor treated by Congress as a treaty, it is just an executive agreement and its terms have no binding legal force.

Paul does not exactly say that, but he comes close. He argues, for example, that if, under Corker, Congress does not vote to disapprove the Iran deal, the sanctions would become “dormant” – in contrast to my conclusion that Corker operates to repeal the sanctions. To describe them as dormant is to suggest that the next president could legitimately begin enforcing them again in 2017. That implies that Paul sees Obama’s deal as a mere executive agreement and that no part of Corker gives any part of the deal binding legal force. (Similarly, Paul maintains that, taken together, Obama’s Iran deal and the Corker law’s provisions are insufficient to amend the Nuclear Non-Proliferation Treaty (NPT). This again implies that Paul sees Obama’s Iran deal as an executive agreement that is not made binding by Congress’s Corker law – a conclusion with which I agree as it relates to the NPT.)

To the contrary, we cannot safely analyze Obama’s Iran agreement as if it were an undifferentiated whole all provisions of which can be summarily renounced as parts of a non-binding executive agreement between Obama and Iran. After all, Congress itself has not done this – though I wish it had.

When we parse the Iran deal’s separate components, we quickly see they are different in nature and have different legal ramifications. Varying provisions of Obama’s Iran deal address, for example, U.N. international-law sanctions, inspection and verification standards, new U.S. international obligations (such as the mind-blowing duty to protect Iran’s nuclear activities from sabotage), and so on. Most significantly for our purposes, some address U.S. statutory sanctions.

Reciprocally, Congress’s Corker law narrowly targets only the U.S. statutory sanctions. In fact, Corker is even narrower than that: it focuses only on the lifting of sanctions against Iran’s nuclear program. The Corker law explicitly states that other sanctions Congress has enacted against Iran’s terrorism and weapons activities must remain in place (notwithstanding that Obama’s deal purports to lift them, too).

Thus, especially with Congress’s Corker law having confined itself to a conditional repeal of the statutory anti-nuke sanctions, we must of necessity sort out the Iran deal’s separate terms. In particular, we need to recognize that statutory sanction statutes can legitimately be repealed by a subsequent statute – in this case, by the Corker law.

In Corker, Congress voted to authorize Obama to repeal the statutory anti-nuke sanctions as long as (a) Obama disclosed the entirety of the Iran deal, including all side deals, by July 19, and (b) Congress does not enact a certificate of disapproval. The first of these conditions is real but it is up to Congress to assert Obama’s default. The second has always been meaningless because there was no chance it would ever happen.

Consequently, since no resolution of disapproval can be enacted, to preserve the anti-nuke sanctions, Congress must call Obama on his failure to comply with the condition that he disclose the full agreement. Otherwise, the statutory sanctions will be deemed repealed by operation of the Corker authorizing statute. They will not merely be dormant. They are already dormant because Obama was waived them. But if Congress fails to call Obama on his default, the sanctions will be repealed and, to be revived, they would have to be enacted by new legislation.

3. A statute cannot be repealed by a resolution.

As an act of Congress signed by the president, the Corker law’s repeal of sanctions cannot, as Paul suggests, be undone by a simple Congressional resolution explaining that Congress did not intend to repeal the sanctions. Again, if the sanctions are repealed, it would take an new act of Congress signed by the president to reinstate them.

As a practical matter, there could be no such new act of Congress until 2017 – and even then, only if (a) a Republican is elected president and (b) the Republicans are willing to reinstate the sanctions despite huge international criticism that doing so would violate international law and commercial arrangements with Iran that countries made in good faith reliance on the Corker law. (I wouldn’t hold my breath on that one.)

Paul is a very fine lawyer, so I am confident he is well aware that a congressional resolution can no more repeal a statute than can an executive order. I thus assume that when he claims Congress could pass a resolution disclaiming an intention to repeal the sanctions, he is regarding Obama’s Iran deal as a mere executive agreement and Corker as having done nothing to give it binding legal effect. I just don’t agree with that interpretation. In my view, the Corker law authorized Obama (conditionally) to lift the anti-nuke sanctions; and, because Corker was a subsequent statute, it could legitimately repeal statutory sanctions.

Of course, you’ll note that I myself am suggesting that Congress pass a resolution holding that Obama has failed to comply with Corker’s conditions. If I am now arguing that a resolution cannot amend a statute, why, you might ask, am I urging Congress to pass a resolution? Because the resolution I am calling for would not be an attempt to amend the Corker law; it would be a determination to follow the Corker law.

The resolution would explain that Congress is not proceeding with the Corker review process because Obama has not complied with the condition – disclosing the full agreement – that triggers the review process. Again, it is important to do this because (a) Congress must refrain from conducting the review process and eventual “resolution of disapproval” vote lest it be deemed to have forgiven Obama’s failure to disclose the full agreement; and (b) Corker says that if Congress conducts the review process and fails to enact a resolution of disapproval, Obama’s Iran agreement is deemed approved by Congress – which would effectively repeal the anti-nuke sanctions. Thus, Congress must elucidate that it has not conducted the Corker review process because Obama failed to comply with the Corker conditions necessary to trigger that process.

Paul’s insistence that the Corker law can be amended by a resolution, leads him to conclude as follows:

Andy also believes that Congress will send a stronger message of disapproval to Iran by not adhering to Corker-Cardin [i.e., the review process]. It seems to me, however, that the message is the same however Congress proceeds — Republican legislators hate the deal; the vast majority of Democrats will go along with it.

No. I was not talking about merely sending a message. I was talking about paving the way for the next president to renounce Obama’s Iran deal and immediately revive enforcement of the anti-nuke sanctions.

If the sanctions have been repealed by the Corker law, the next president will be boxed in legally and practically. Legally, the problem would be that the sanctions would have to be reinstated by newly enacted law. Realistically, the problems would be that (a) the repealed sanctions would have been off the books for two years, so Iran would already have gotten its financial windfall and could easily withstand reinstated sanctions; and (b) other countries would very loudly complain that they lifted their sanctions and made new commercial arrangements with Iran in reliance on the Corker law – they’d undoubtedly accuse the U.S. of violating international law.

This is a matter of legal consequences, not messages. If Congress proceeds with the otherwise pointless process of voting on the Iran deal, Obama’s failure to disclose the entire deal as the Corker law requires will be deemed forgiven and the sanctions will be repealed. If Congress resolves not to proceed with the review process because Obama has not complied with his disclosure obligation, then the anti-nuke sanctions will not be repealed (even if Obama declines to enforce them) and the next president can immediately begin enforcing them.

If the latter course is followed, it goes without saying that countries would complain. But they could not credibly claim that they relied on the Corker law – especially if Congress follows up a resolution calling Obama on his default with a unilateral Senate procedure that deems Obama’s Iran deal as a treaty and decisively votes it down.

4. The fact that the Corker law cannot alter the NPT does not mean it cannot repeal statutory sanctions.

Relatedly, Paul errs in equating the statutory anti-nuke sanctions with the NPT (the Nuclear Non-proliferation Treaty), a ratified international agreement.

It is true that, in terms of legal force, treaties and statutes are both the law of the land. But they are very different in form and substance. A treaty is an agreement between governments; it creates no judicially enforceable rights and it cannot be amended by a statute that would alter the agreement. By contrast, a statute is an act of Congress; it usually does create judicially enforceable rights and, as we’ve seen, it can be amended or repealed by a subsequent statute, regardless of how that may affect other countries.

Thus, it is a mistake to suggest, as Paul does, that because the Corker legislation is incapable of changing the NPT, it must also be incapable of repealing the sanctions. The sanctions are federal laws that punish actors (including private actors) who do business with Iran; the NPT is a treaty that spells out Iran’s obligations under international law regarding nuclear energy activity. While related, the two are distinct in nature and purport. The Corker law cannot change Iran’s treaty obligations but it can certainly repeal Congress’s anti-nuke sanctions.

Congress should do what it can to prevent such a repeal by passing a resolution making clear that Obama has not complied with the Corker law’s conditions, and therefore that Congress will not review and vote on the Iran deal under the Corker formula. The Senate should further deem Obama’s Iran deal a treaty and vote it down under the Constitution’s treaty process.

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