by Jerry Gordon (August 2015)
Secretary of State Kerry testifying before House Foreign Affairs Committee, July 28, 2015
Source: AP/Andrew Harnik
July 28th, Secretary Kerry was asked at a House Foreign Affairs Committee hearing by Wisconsin, Rep. Reid Ribble (R-WI) why the Iran nuclear deal wasn’t subject to advice and consent by the Senate as a treaty. Kerry suggested emphatically “that you can’t pass a treaty anymore.” As evidence that you could, it was pointed out that Kerry himself, acting as Senate Foreign Relations Committee Chairman in 2010, secured the approval of the Start 2 nuclear treaty with Russia. Testimony, both at last week’s Senate Foreign Relations Committee hearing on the Iran Nuclear Agreement Review Act (INARA) and at the House Foreign Affairs Committee INARA hearing, raised questions about several options to overturn the Iran nuclear pact. We refer to proposals raised by former US prosecutor Andrew C. McCarthy, Caroline Glick, David Rivkin and Lee Casey as well as Robert Sklaroff.
McCarthy and Glick suggested Congress reassert its review prerogatives, ditch INARA and pass a resolution to treat the JCPOA as a treaty and schedule a vote. Rivkin and Casey further suggest asserting individual state Iran sanction laws to effectively nix the deal, should the President successfully override a vote under INARA. Sklaroff suggests that the Congressional intent under INARA was violated due to the dropping of sanctions on conventional arms. He cites as a precedent the 1912 B. Altman v US case which allowed for direct SCOTUS appeal if there is any possibility an agreement is a “treaty.”
Let’s review what happened at the House Foreign Affairs Committee hearing. A CNSNews.com, report on the Hearing by Patrick Goodenough, reported the Administration’s justification for treating this as a political agreement, Kerry: Iran Deal Not a Treaty ‘Because You Can’t Pass a Treaty Anymore’. Witness these exchanges between Kerry and Republican Ribble and Democrat Brad Sherman (D-CA):
Rep. Reid Ribble (R-WI) recalled Kerry saying earlier in the hearing that if Congress rejects the JCPOA, other countries will in the future not trust the U.S. since rather than negotiating with an administration they will in effect be doing so with 535 members of Congress.
“For 228 years the Constitution provided a way out of that mess by allowing treaties to be with the advice and consent of 67 U.S. Senators,” he said. “Why is this [Iran deal] not considered a treaty?”
“Well Congressman, I spent quite a few years ago trying to get a lot of treaties through the United States Senate,” Kerry replied. “And frankly, it’s become physically impossible. That’s why.”
“Let’s say Congress doesn’t take your advice, and we override a veto,” Rep. Brad Sherman (D-CA) put to Kerry. “And the law that’s triggered then imposes certain sanctions. Will you follow the law, even though you think it violates this agreement clearly, and even if you think it’s absolutely terrible policy?”
Kerry said he would need to consult with President Obama before answering such a question.
“So you’re not committed to following the law?” Sherman asked.
“No, no, I said I’m not going to deal with a hypothetical, that’s all,” Kerry retorted.
Watch this MRC video of Kerry’s remarks at the House Foreign affairs Committee Hearing:
Now let’s review briefly the various proposals suggesting means by which Congress and others might endeavor to overturn the Iran Nuclear pact.
Andrew C, McCarthy in a July 17th, NRO Corner article suggested:
While the administration is refusing to yield, the Congress can get busy enacting a Constitution-tracking resolution: one that affirms that Congress has the power to insist that international agreements be treated as treaties, or at least regular legislation, if they are to be legally enforceable. If they are not thus approved by a two-thirds supermajority of the Senate or an act of Congress, they have no standing as binding law — they are mere executive agreements that can be abandoned at any time by either the president who makes such an agreement or by a future president. The Democrats would be expected to fight this, of course, and Obama would veto it (just as he would veto a Corker “resolution of disapproval”). But especially now that we know what is in the Iran deal, many Democrats may not want to be seen as carrying not just Obama’s water but the mullahs’. Moreover, Congress would not be rejecting Obama’s deal; it would be saying that the deal needed to comply with the Constitution to become enforceable — a proposition that should not be controversial. There has to be a better chance of overriding an Obama veto on a resolution that asks Democrats simply to endorse their own indisputable Constitutional powers than on a resolution that asks Democrats to reject their president’s deal.
Following the President’s end run of Congress submitting the Joint Plan of Action to the UN receiving a resounding Security Council endorsement, Caroline Glick, published her jeremiad in Real Clear Politics and other outlets on How to kill the Iran nuclear agreement, basically affirming McCarthy’s proposal:
As former US federal prosecutor Andrew McCarthy argued in National Review last week, by among other things canceling the weapons and missile embargoes on Iran, the six-power deal with Iran went well beyond the scope of the Corker-Cardin law, which dealt only with nuclear sanctions relief. As a consequence, Congress can claim that there is no reason to invoke it.
Rather than invoke Corker-Cardin, Congress can pass a joint resolution determining that the deal with Iran is a treaty and announce that pursuant to the US Constitution, the Senate will schedule a vote on it within 30 days. Alternatively, Congress can condition the Iran deal’s legal stature on the passage of enabling legislation – that requires simple majorities in both houses.
Dan Darling, foreign policy adviser to Republican Senator and presidential hopeful Rand Paul wrote July 20th that senators can use Senate procedure to force the Foreign Relations Committee to act in this manner. Darling argued that House Speaker John Boehner can either refuse to consider the deal since it is a treaty, or insist on passing enabling legislation under normal legislative procedures.
David B. Rivkin and Lee Casey in a Wall Street Journal Op-ed offered possible relief via existing state Iran sanctions laws directed at barring companies from investing or doing business with the Islamic Republic. A proposition that Breitbart News had earlier promoted:
On July 22, Breitbart News was the first to point out that the states have the power to block significant portions of the Iran deal, whether or not it passes Congress. That is because most states have enacted legislation divesting from Iran, and some, like New York, have even harsher legislation that prevents the state from doing business with the regime or with companies that do so.
In an op-ed in the July 27th Wall Street Journal, constitutional lawyers David B. Rivkin and Lee A. Casey agree: the states are “free to impose their own Iran-related sanctions.”
Rivkin and Casey review the various ways in which the Iran deal skirts both U.S. Constitutional and international law. They then note: “The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.”
Rivkin and Casey agree: “The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel.”
Regardless of whether they add new sanctions, states are unlikely to unravel their sanctions any time soon. (Notably, many of the states that have Iran sanctions are not “red” states, but are actually “blue” states where Democrats have taken a firm line against the Iranian regime.)
Robert Sklaroff in an article published July 29 in The Hill raises the alternative of possible litigation on the basis of executive overreach:
A lawsuit must be based upon the “legislative intent” criterion that was determinative when the SCOTUS validated Obamacare. This filing would jointly seek a temporary restraining order, for the lawsuit reasonably could prevail and, otherwise, implementation of the pact would render it moot. Disapproval of any component of the pact would invalidate the entire agreement because neither the bill nor the pact contains a “severability” clause.
Thus, based upon public statements issued by the executive branch, the legislative branch adopted this bill–emasculating black-letter limitation of presidential hegemony–under the pretense that it would only deal with nuclear-warfare, and not conventional-warfare.
Therefore, just as the House’s litigation challenges Obama Care’s overreach, the Senate should restrain a lawless POTUS. The judicial branch must ultimately issue a landmark decision that will rebuke Obama’s autocratic “legacy.”
While each of these options have both merits and daunting thresholds for implementation, the reality is that the Administration has played a weak hand in conducting less than rigorous due diligence on representations and concession demands by the Iranian negotiating team between the adoption of the Framework on April 2nd, the announcement on July 14th and the pre-emptive UN Security Council Resolution endorsing the JCPOA on July 22nd.
Evidence of further cupidity by the Administration emerged from a trip to Vienna by Senator Tom Cotton (R-AK) and Rep. Mike Pompeo (R-Kan.). Their discussions with representatives of the IAEA revealed secret side deals with Iran that demonstrated that the systemic verification, inspection and monitoring regime will unlikely reveal conclusive information on previous military developments. Nor will those side deals address external covert nuclear weapons development with rogue partner North Korea.
It will be impossible to conduct rigorous due diligence on many aspects of this political agreement with Iran in exchange for release of upwards of $150 billion of sequestered funds. Hence, while these ways to override the nuclear pact have intriguing aspects, the question arises as to whether Congress has the will to do what McCarthy and Glick propose, or default to state Iran sanctions as a last resort. Independent Congressional litigation on demonstrable Constitutional legal grounds regarding executive overreach may be an alternative solution. If the Senate was granted standing on direct appeal, based on the B. Altman SCOTUS ruling, it might result in a predisposed SCOTUS rendering a positive ruling thus quashing the Iran nuclear pact. Further, the ruling might unfetter the hands of any successor to President Obama on inauguration day in 2017 to undertake remedial actions. Such actions might reduce the current existential threats to both the US and Israel. However, Norman Podhoretz contends, in his July 29th Wall Street Journal op-ed, there is only a Hobson’s choice for Israel: either a conventional war against Iran now or a possible nuclear war with Iran later.
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