Is Scott Walker Running for Dictator?

Sandy Levinson

Scott Walker has announced that he will be prepared to go to war against Iran on his first day of office, presumably after "tearing up" the Iran agreement.  There can be little doubt that the next president, even an uneducated lout like Gov. Walker, has the constitutional power to tear up the agreement.  As Marty Lederman has ably demonstrated, the Deal is neither a treaty nor even an executive agreement truly binding on the United States.  It is, I think it's fair to say (though Marty will correct me if I'm wrong)* a memorandum or understanding between the current President and Iran (and the other signatories) as to what they will do in the relatively near future should certain contingencies take place, i.e., life those sanctions the President has unilateral authority to lift in return for Iran's agreeing to comply with the deal.  And so forth.  So the question is whom we might be trusting to make such determinations in the future, insofar as the Iran Deal, whatever one thinks of it, highlights the power of the Executive Branch vis-a-vis Congress, certainly as a practical matter, perhaps as a constitutional matter.

But the threat to use military force on day one is something entirely different, unless one adopts the most extravagant theories of Hanoverian Monarch-like presidential power attached to John Yoo.  Given that there is no plausible fear that Iran would engage in a military attack on the US (or even any of its NATO allies) on January 20, 2017, it would be impossible for a new president to claim whatever authority presidents have to engage in "defensive" wars.  It would be an act of aggression against Iran based on a theory of preventive war.  Perhaps that would be a good idea (though I personally think it is near-lunatic).  But the point is that only a dictator would claim such an authority to go to war without congressional approval.  Now it's possible that if mad-dog Republicans not only win the presidency but retain control of Congress, then the new Congress that convenes early in January, 2017 will pass a new AUMF that will offer the incoming president a true blank check to go to war (at least against Iran) whenever he thinks the circumstances warrant.  I would hope that Democrats would filibuster any such proposal, though one never knows what Chuck Shumer, who might, God forbid, have become the Senate minority leader by that point, would do.  I'm sure that Sheldon Adelson would support such a bill.  But, in the absence of congressional authorization--and I hope that no serious person would argue that the existing AUMF would provide any such authorization--President Walker would be without power to order an attack on Iran.  Indeed, if we tear up the agreement, it is unclear to me how he could unilaterally order an attack even if Iran moved closer to having nuclear weapons.  But we've gotten so used to assertions of unilateral presidential power, from presidents of both parties, that perhaps we'd take that in stride.

*UPDATE:  Marty, a far more meticulous lawyer than I am, did indeed send me a valuable correction:

[I]t's a bit misleading in one discrete but important sense:  The JCPOA is most certainly not a deal between "the current President" and Iran, nor is it limited to the "relatively near future."  It is a deal on behalf of the United States (the President is not mentioned in it), and it lasts well into the future--committing the good faith of the U.S., and Iran, and the other states, to do certain things.  They are national and long-term commitments, not personal and short-term.  But as I discuss in the first post, they are "merely" moral and political commitments -- not legal ones.  And therein lies all the difference for U.S. constitutional purposes.  Hope that helps clarify.

What I find especially interesting about this--and, let me repeat, I am more than happy to accept Marty as the definitive authority on this matter--is his comment that the commitments are "'merely' moral and political commitments--not legal ones."  I don't know how many other readers are old enough to remember New York's issuing so-called "moral obligation bonds," I think during the Rockefeller administration, where the whole point was that one had basically to trust New York to keep its promise rather than on the possibility of legal enforcement.  Indeed, a web site offers the following comments about such bonds:

DEFINITION of 'Moral Obligation Bond'
A type of revenue bond issued by a municipality or similar government body. A moral obligation bond not only gives investors the tax exemption benefits inherent in a municipal bond, but also provides an additional moral pledge of commitment against default. The issuing body's commitment is supported by a reserve fund established to meet any debt service costs the government may be unable to make.

INVESTOPEDIA EXPLAINS 'Moral Obligation Bond'
It is important to note that with a moral obligation bond, the additional security provided by the government is only morally - and not legally - binding. However, the pledge is generally regarded as being as credible as a legally binding promise because the issuing government would face negative credit rating effects if it failed to honor the pledge.

Posted 1:25 PM by Sandy Levinson [link]