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
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
The Iran deal and regime change (in the United States)
I take a different perspective than Sandy's latest post on the constitutional meaning of the Iran deal. Sandy says that "[t]here should be no doubt that the current debate over the Iran deal is a genuine 'constitutional moment.'" That is incorrect. There is no constitutional moment in the offing. What we are watching, instead, is the slow, grinding transition between political/constitutional regimes-- from the Reagan regime to a new one that has not yet quite emerged. The Iran deal plays a role in that transition, but not the role that Sandy thinks.
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.
Instead of forcing Obama to procure a two-thirds in the Senate for a treaty, or a majority in the House plus sixty votes in the Senate, the opponents of the deal had to find two-thirds majorities in each House to disapprove the deal. Again, managing to frame the matter in this way was already a major victory for Obama. And once that mechanism was put in place, it was pretty clear that
Obama's veto would be very hard to override.
Given this structure, the ensuing months of controversy were entirely predictable. There would be a lot of shouting, and wailing, and gnashing of teeth, and rending of garments, and analogies to the Holocaust (thank you Mike Huckabee) and Munich (thank you, virtually the entire Republican Party). But the ultimate result was not going to be much in doubt. This was deliberate on the part of congressional leaders, and don't think that opponents of the deal didn't realize it at the time. They understood that they had just been dealt a very bad hand.
This structure allowed opponents to make as much noise as they wanted, and it also allowed a lot of politicians -- Republicans and Democrats alike-- plausible deniability if the deal in fact went through, as it is still likely to. They could claim that despite the fact that the deal is in place, they did everything they could to oppose it. Moreover, once the deal is in place, and sanctions are removed, it will be very difficult to impose them once again without the assistance of America's allies, so the deal is effectively entrenched even if the Republicans win in 2016.
Now although Obama and congressional leaders have stacked the deck in his favor, it is still possible that the deal will go down. Enough Democrats may still defect. So this brings me to Sandy's next point: that a defection by enough Democrats would be a vote of no-confidence. I don't agree. Even if a lot of Democrats defect, and the deal's opponents reach a two-thirds majority, that is a disappointment, but it hardly cripples Obama's presidency thereafter. After all, the American system is designed so that the President can lose on issue A one day and succeed on issue B the next day. It happens all the time.
Sandy thinks that we are at the crossroads of a constitutional moment if Obama loses. Quite the contrary. The really interesting question is what happens if Obama wins. If Obama's Iran deal is sustained, even with some Democratic defections, this is a major foreign policy victory for him. It can be added to his significant domestic achievements.
And so the real question is whether these achievements, plus the ongoing changes in voting demographics, plus the increasing fracturing of the Republican Party, will be sufficient to end the Reagan regime and allow the Democrats create a new constitutional regime to succeed it. We have discussed this question on this blog many times before. Much depends on the outcome of the 2016 election. If Hillary wins in 2016, the odds are greater that this is what has happened, although we won't know for sure for some time even after that.
The Iran deal matters to these issues in the following way: Hillary Clinton has put herself on the line in favor of the deal. It is likely that she thought long and hard about it, and ultimately realized that given the structure of politics today, she pretty much had to support the deal. Now if the deal goes through, that is good for Obama. But equally important, Clinton will continue to have to defend it in the 2016 elections. Indeed, because of the way politics is currently structured, she will have to defend a great deal of the Obama years. Thus, if Hillary Clinton is elected in 2016 as a defender of Obama's foreign and domestic achievements, that is an additional piece of evidence that the Reagan regime is over.
We don't know if any of this will happen. It is very early in the Presidential race. But these are the issues to look for in the next year and a half. Posted
by JB [link]