an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Congress hasn't ceded any constitutional authority with respect to the Iran JCPOA
I'm not going to wade too deeply into Jack and Sandy's somewhat metaphysical colloquy about whether a congressional override of the President's veto on the Joint Comprehensive Plan of Action (JCPOA) would be a "constitutional moment," a vote of "no confidence" in the President, or a barrier to what would otherwise be "regime change." Suffice it to say two things on that score: First, it's very unlikely both Houses will override the veto, if it even comes to that. (There's still some chance there won't be 60 votes for the Senate to proceed to a disapproval vote, in which case there won't even be any occasion for a veto.) And second, if a veto override vote were widely understood as a vote of "no confidence" in Obama, or a vote on which our constitutional order turned--that is to say, if the public and the political classes shared Sandy's perspective of the implications--you can be confident that Chuck Schumer and other Dems would not vote to override.
I do, however, want to offer an important corrective to a view that Jack and Sandy appear to share--namely, the idea that Congress has somehow capitulated to the President, and ceded its own constitutional authority, by allegedly agreeing that it can stop the JCPOA only by a vote of supermajorities of both Houses.
Sandy, for example, describes the Corker/Cardin legislation, the Iran Nuclear Agreement Review Act of 2015, Pub. L. No. 14-117--which established the 60-day period of debate we're currently in--as Congress "agree[ing] in effect to waive any approval rights by setting the Iran Deal up so that the President could prevail so long as he was able to maintain 1/3+1 support in either the House or Senate." Jack elaborates:
The Administration is presenting the Iran deal as a sole executive agreement. Whether this kind of arms-control deal can be so classified constitutionally is a matter of dispute. In any case, Republicans and Democrats agreed several months ago to create a legislative mechanism for handling how Congress would treat the deal, regardless of what constitutional commentators might think. That mechanism, agreed to by both parties, meant that it takes two-thirds of each House of Congress to disapprove the agreement. That is because the agreement only fails if congressional disapproval can override a presidential veto.
Merely agreeing to that mechanism meant that party leaders on both sides effectively agreed not to insist that the deal be treated as a treaty or a congressional-executive agreement. In doing so, they essentially conceded Obama's constitutional framing of the deal. And that in and of itself was a major political and constitutional victory for Obama. This is quite remarkable.
I think this misunderstands the nature of the JCPOA, the effect of the Corker/Cardin legislation, and the baseline legal authorities against which Congress enacted Corker/Cardin.
The debate Congress and the public are currently having is about whether the President should be able to in effect implement the JCPOA by waiving certain existing U.S. domestic-law sanctions against Iran. Were it not for Cooper-Cardin, the President could have waived those sanctions the day the JCPOA was finalized--indeed, he could have waived them during the negotiations, or if the negotiations had fallen apart. Why? Because Congress gave him the power to do so. The sanctions statutes in question delegate that authority to the President. (See the waiver information set out in boldface in the right-hand column of Table 1 on pages 12, 21-22 and 27-33 of this Congressional Research Service Report. As that Report explains, there are other U.S. statutory sanctions against Iran that the President cannot waive--at least not without making findings that he is not going to make. The JCPOA does not affect those sanctions, which will remain in place.)
What, then, does the recent Corker/Cardin legislation do? It prevents the President from waiving those sanctions during the 60-day period in which Congress debates whether to vote for a "resolution of disapproval": "The President may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of law or refrain from applying any such sanctions pursuant to [the JCPOA]" during the two-month period. And in the event both Houses of Congress vote during the 60 days to "disapprove" the JCPOA, this Corker/Cardin bar on the President's exercise of his current statutory waiver authority extends until ten days after the President's veto (a period in which Congress could override the veto, and thereby preclude sanctions relief going forward).
In other words, far from ceding any authority to the President, all that Corker/Cardin does is to limit the President's authority vis-a-vis what he could have done--with Congress's statutory blessing, and pursuant to its legislation--before that law was enacted. (It also imposes oversight mechanisms concerning the JCPOA that had not previously been legally required. I described the mechanisms of Corker/Cardin in somewhat greater detail in a post here, before Congress approved the legislation.)
So if this whole debate is merely about whether Congress should repeal the President's existing statutory authority, what's the constitutional question, anyway? Why does Jack call Corker/Cardin "a major constitutional victory" for the President if all it does is to postpone his preexisting, statutorily conferred waiver authority?
The catch is this: The popular understanding of the Iran JCPOA is that it not only requires the President to exercise his current waiver authorities--something that everyone agrees the President can agree to do--but also locks in the United States by prohibiting it from imposing such sanctions going forward, even if the Congress or the President (Obama or his successor) decides that sanctions ought to be reimposed. If I understand Jack's perspective accurately, it is this purported U.S. promise of prospective sanctions relief that raises the constitutional question: How can the President on his own, without either Senate or congressional approval, commit the United States not to impose sanctions as long as the JCPOA is in effect and Iran is complying with its side of the deal, thereby tying the hands of the political branches in futuro?
The short answer is that Jack would be absolutely right . . . if his (apparent) factual premise about the JCPOA were correct: If the JCPOA were, in fact, a multilateral agreementthat bound the United States, as a matter of international law, not to reimpose sanctions against Iran, the Constitution would require the approval of two-thirds of the Senate or majorities of both Houses before the President could conclude such a commitment on behalf of the nation; that is to say, the President could not conclude it as a "sole executive agreement."
But it's not. As Jack Goldsmith and I have explained, the JCPOA is not a treaty, or, indeed, any sort of formal international "agreement"--instead it is, well, a "plan of action," as its title indicates. In other words, it's a nonbinding "political agreement." The distinction is an important one. Under a treaty or other commitment that is understood to be legally binding, each party has an international law obligation to comply with its terms, and a concomitant right to enforce the other parties' obligations under international law. That is not the case when the parties instead agree to a "political commitment."
This doesn't mean that political commitments are worthless or unimportant--to the contrary, as Secretary of State Kissinger and State Legal Adviser Monroe Leigh explained to a Senate committee in 1975, such commitments are “important statements of diplomatic policy [which] engage the good faith of the United States so long as the circumstances that gave rise to them continue," even if "they are not binding commitments of the United States.” Unless and until a party repudiates such a commitment, which it can do without legal penalty, it has in effect given its word of honor that it will comply with that commitment; and therefore, if it breaks that promise, it can be subject to costly political and diplomatic--but not legal--responses from other states. That's why the U.S., and other nations, rarely repudiate, or act in contravention of, such nonbinding agreements.
Presidents and their diplomatic agents have been entering into such nonbinding political agreements on behalf of the U.S. for over a century, going back at least to a 1908 accord between the U.S. and Japan under which Japan agreed to impose measures to limit emigration of laborers to the U.S. in exchange for a U.S. commitment not to enact discriminatory immigration legislation. (That accord is a nice case in point because, as I understand it, the U.S. actually reneged on the agreement by enacting such discriminatory legislation in 1924--and did so without violating international law.)
Such political commitments, both bilateral and multilateral, have since become ubiquitous, in virtually every field of international relations, including arms control, debt, trade, the environment, and human rights. Many of the most famous and most important of the nation's "agreements" of the past century have actually been nonbinding commitments, including the Atlantic Charter, the Shanghai Communiqué, the Helsinki Accords, and the 2008 Declaration on Environment and Climate Change, in which the U.S. committed to seek a fifty percent reduction in global greenhouse gas emissions.
Presidents concluded all of these nonbinding international commitments, and countless others, without Senate or congressional approval. Jack writes that whether a deal such as the JCPOA can be concluded by the President alone is "constitutionally is a matter of dispute." Well, that depends on what one means by "dispute." To be sure, some scholars--notably Duncan Hollis and Joshua Newcomer--have argued that the Constitution ought to be understood to require Senate or congressional authorization for at least some such nonbinding political commitments. (They offer a very complex matrix of considerations for determining the category of commitments that should be covered.) And at the end of a recent blogpost, Mike Ramsey in effect argues that the Constitution should permit nonbinding political commitments only to the extent that they are personal commitments, effective only during the President's own term, rather than ongoing national commitments, or promises on behalf of the United States.
Whatever one thinks of the merits of these constitutional arguments, however, it's a stretch to say that there's a serious "dispute" about the constitutionality of the now-common practice of the President unilaterally making nonbinding agreements on behalf of the nation--or, in any event, there hasn't been much of a dispute about it within the political branches themselves for the past 100 years. Indeed, I'm not aware of any current members of Congress, even those who are vehemently opposed to the JCPOA, who have taken the view that the JCPOA requires Senate or congressional approval if it is nonbinding. (Professor Ramsey also argues, in his post, that the JCPOA is binding as a matter of international law, notwithstanding the State Department's insistence to the contrary. I think Ramsey is mistaken on this question of interpretation, for reasons that would warrant a separate post if and when there's a serious public disagreement about the question of bindingness. For now, however, it is sufficient to note that, as far as I'm aware, no one in Congress disputes the Administration's (correct) view that the JCPOA is nonbinding.)
Accordingly, Congress's enactment of Corker/Cardin did not itself "concede Obama's constitutional framing of the deal," or represent a "major" or "remarkable" "political and constitutional victory for Obama," as Jack alleges. That ship sailed long ago.
As things stood before Corker/Cardin, then, the President had statutory authority to waive the sanctions in question, and constitutional authority to conclude a nonbinding accord such as the JCPOA, promising (in a nonbinding way) that the U.S. would not re-impose such sanctions under the terms prescribed in the JCPOA. Corker/Cardin did nothing other than to temporarily postpone the President's statutory waiver authority until such time as he overrides Congress's veto (or until 60 days pass without passage of a congressional "joint resolution of disapproval").
Finally, I should note David Golove's provocative suggestion that the literal terms of the Corker/Cardin legislation could be read to actually authorize the President to enter into a binding JCPOA with Iran. I am dubious about this reading, which almost certainly was not Congress's design. But if David were correct, and Corker/Cardin did authorize the President to conclude a binding agreement, that wouldn't affect the basic constitutional analysis, in any event, for two reasons: First, the JCPOA is nonbinding. Second, if it were binding, it would then be authorized by Congress--and as a joint congressional/executive agreement, it would be constitutionally permissible. Posted
by Marty Lederman [link]