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
What, exactly, is "polarized" in the Iran JCPOA debate?
Many thanks to Mark for that provocative post, and for the kind words.
I'm afraid, however, that in my last post I might have inadvertently left readers with a distinct misimpression about whether the question of the constitutionality of the Iran JCPOA is as "polarized" as Mark suggests. Indeed, I meant to convey almost exactly the opposite notion:
Of course, Mark is correct that the current debate in Congress, and in the public, is extraordinarily polarized, mostly along partisan lines. But that polarization is with respect to the merits of the Iran deal: Republicans, in particular, are uniformly opposed to it, even though there does not appear to be a better option--indeed, they'd be uniformly opposed to virtually any major initiative of this President, in part because of fundamentally divergent views about the proper U.S. role in the international system (a principal topic of the President's speech last week), and in part because they are deeply devoted (for both policy and partisan reasons) to simply stopping any major Democratic initiative.
But here's what's so interesting to me, and what I meant to stress in my last post: Despite the general, deep polarization Mark describes, there is no such polarization on the constitutional questions that Jack and Sandy raised, because of a remarkable settlement that has been established over the past 100 years of U.S. foreign policy and diplomatic practice--a settlement that, I might add, was unknown to approximately 99% of all law professors (myself included), ignorant as most of us are concerning the way that the government actually functions in foreign affairs. (For much more on the extraordinary disconnect between the academy's hidebound, "received wisdom" views and the actual constitutional practice of foreign relations as conducted by the U.S. Department of State, see Harold Koh's terrific 2012 Ryan Lecture here at Georgetown.)
Both branches, and both political parties, appear to agree that if the JCPOA were a binding agreement under international law, the U.S. could not join it unless either two-thirds of the Senate or majorities of both Houses approved it. (That is to say, if it were binding, the President would have submitted it to the Congress for authorization--he wouldn't have claimed the authority to conclude it as a sole executive agreement.)
Likewise, both branches, and both political parties, appear to agree that if the JCPOA is nonbinding--which it is, and which no one in Congress appears to dispute--then the President can "unilaterally" commit the United States to it, unless and until Congress passes a statute disapproving it or requiring action (e.g., imposition of U.S. sanctions) inconsistent with the JCPOA.
On so many other issues of policy-based polarization in recent years -- e.g., the so-called individual "mandate" of the ACA; recess appointments; Zivotofsky; gun rights; campaign finance; even the DAPA immigration debate, which ought to be merely a question of statutory interpretation -- the parties have chosen to extend the dispute to a strategy of constitutional disputation, even when one side of the constitutional debate would upset many years of apparent constitutional settlement, and/or call into question the constitutionality of initiatives long supported by both parties.
But not this time . . . . Everyone in Congress--and almost everyone in the public debate--appears to accept the same constitutional frame, one established quietly but steadily over the past 100 years. One might have expected at least some opponents of the JCPOA to say something along these lines:
"You know what? This is the last straw: I realize that everyone--Presidents and Congresses of both parties--has come to accept the idea that as long as an agreement is nonbinding, the President can conclude it unilaterally. That constitutional settlement was surely a good thing when it came to Helsinki, and countless other nonbinding commitments over the years; and, to be sure, it allows for very important play in the joints, and U.S. flexibility in diplomacy, that a strict construction of the hopelessly anachronistic 1789 Treaty Clause might be thought to prohibit. HOWEVER . . . this latest example demonstrates the dangers of allowing binding/nonbinding to be such a constitutionally conclusive factor. Let's challenge the received constitutional wisdom/settlement of the past 100 years."
Yet, as far as I know, no one in Congress, or the Republican base, has suggested any such move to constitutional "hardball." In an age of endemic polarization, what accounts for that? (Hint: the answer might have something to do with the fact that everyone realizes what a disaster the alternative might be for U.S. foreign relations, under Republican and Democratic Presidents alike.) Posted
by Marty Lederman [link]