The INARA statute that presidents use to flout the Constitution’s treaty clause prohibits the Iran sanctions waivers called for by Trump’s MOU.
Not that anyone will do anything about it, but President Trump’s capitulatory memorandum of understanding (MOU) with Iran is the predicate for what is about to be an extortion payment of about $24 billion to Tehran that is illegal under federal law.
Regrettably, on the subject of appeasing the Death to America regime, Congress has been an aider and abettor for over a decade. The legislation that renders illegal the president’s imminent release of sanctioned funds is the Iran Nuclear Agreement Review Act (codified in Section 2160e of Title 42, U.S. Code).
As I’ve pointed out a number of times (see, e.g., here and here), INARA is itself unconstitutional to the extent that it seeks to nullify the Constitution’s treaty clause. A constitutional provision may not be amended or repealed by a mere statute. The INARA nevertheless inverts the treaty clause, which requires a two-thirds’ Senate supermajority to approve an international agreement for ratification; the INARA purports to require, in effect, supermajorities in both the House and Senate to disapprove an international agreement as binding law. (I say “in effect” because, while the bicameral resolutions of disapproval need not be by supermajority votes at first, a president is certain to veto a congressional resolution disapproving an international agreement he has made; under the Constitution, such a veto can only be overridden by two-thirds’ supermajorities of both houses.)
In sum, because the Framers were wary of foreign entanglements that might disserve vital American interests, the Constitution’s default position is that a president’s international agreement is not binding absent overwhelming Senate assent. Yet, the INARA’s default is that a president’s international agreement is binding, no matter how appalling, unless there is overwhelming, bicameral congressional dissent.
The INARA is not unconstitutional for all purposes — just on the matter of countermanding the treaty clause. Its provisions restricting the president’s ability to waive sanctions are entirely lawful. After all, a president has no constitutional authority to impose economic sanctions — which mainly work against Americans and other third parties that do business with sanctioned nations and entities — unless Congress delegates such authority to the executive branch. Since the sanctions are statutory, Congress can amend or repeal them by statute. Here, the 1977 International Emergency Economic Powers Act delegates to presidents the authority to impose sanctions that has been invoked against Iran, and the INARA restricts presidential authority to waive sanctions when it comes to international agreements related to Iran’s nuclear program.
(Note: The IEEPA is codified in Sections 1701 et seq. in Title 50, U.S. Code. The recent controversy over the IEEPA involved President Trump’s imposition of tariffs under the IEEPA, which the Supreme Court invalidated earlier this year in Learning Resources v. Trump. There is no similar controversy over the imposition of sanctions under the IEEPA. They are clearly lawful and have been liberally imposed for decades.)
While the occasion for the INARA’s enactment was President Obama’s Iran nuclear deal (the Joint Comprehensive Plan of Action (JCPOA)), it applies to any international agreement reached by a president that somehow “relat[es] to the nuclear program of Iran.”
The Trump administration appears to claim that its MOU is not such an agreement, rationalizing that it is just an understanding that the United States and Iran will negotiate a future agreement relating to Iran’s nuclear program. That’s specious. The “understanding” is patently an international agreement (the MOU is the administration’s basis for, among other things, ending hostilities and granting sanctions relief, and it requires Iran reciprocally to open of the Strait of Hormuz, at least temporarily). The MOU also relates to Iran’s nuclear program: Iran reasserts what it disingenuously purports to be its commitment not to procure or develop nuclear weapons; the MOU also commits the U.S. to negotiations over Iran’s nuclear program, including the disposition of its stockpiles of enriched uranium.
Under the INARA, the president is required to submit any covered agreement with Iran to Congress within five days. Apparently conceding this statutory mandate (or at least indulging it), the administration reportedly transmitted the MOU to Congress yesterday (Thursday). The INARA gives Congress 30 days to conduct hearings on the agreement. During that period of 30 days after the transmission of the agreement to Congress, “the President may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran.” The suspension of the waiver authority continues further if Congress moves on to a vote to approve or disapprove the agreement.
Again, I don’t believe the approval/disapproval provision is constitutional. My view on this is, of course, irrelevant. Obama got away with imposing the JCPOA even though the Senate never approved it as required by the Constitution and, even under the wayward INARA, Congress never completed a vote on it (it was disapproved by the House but Democrats succeeded in a Senate filibuster to prevent passage of a disapproval resolution). The adoption of an international agreement is principally a political issue, not a legal one; courts are not going to intervene unless and until a person or entity can establish a concrete harm caused by the flouting of the Constitution’s treaty clause by the executive and legislative branches. It is thus up to Congress to prevent a bad Iran deal from becoming binding, and the 2015 enactment of the INARA, under GOP congressional control, indicates Congress is not up to its constitutional duty in that regard.
Nevertheless, the INARA does prohibit the president from waiving sanctions while the MOU is under congressional review. Under the MOU, Trump has agreed to have the Treasury Department “immediately” issue waivers of sanctions, with an eye toward terminating all sanctions in the anticipated final agreement. The INARA makes such immediate waivers illegal.
To my mind, it would be an impeachable offense for a president to willfully give the world’s leading state sponsor of anti-American terrorism access to billions of dollars in direct contravention of a binding statutory prohibition on sanctions relief. But then again, Congress would have to do something about it. I presume that a combination of Trump Republican allies and Democratic supporters of Obama’s JCPOA (which President Biden tried to revive after Trump renounced it in 2018) will actually support the suicidal folly of sanctions relief for Iran.
Ergo, expect that nothing will be done about any illegal sanctions relief despite noncompliance with the INARA statute, and that President Trump will impose the MOU and any subsequent capitulatory agreement with Iran despite the Constitution’s treaty clause.