More Weak Arguments For The Illegality of the Iran Deal

David Rivkin and Lee Casey maintain in the WSJ that the Iranian Nuclear Deal “is unconstitutional, violates international law and features commitments that President Obama could not lawfully make,” and that “state and local Iran-related sanctions” might “set off a legal clash over American domestic law and the country’s international obligations” that could “prompt the deal to unravel.”

A few quick responses:

1. Rivkin and Casey complain that the Iran Review Act “surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement.” This is not accurate because (as they acknowledge) the administration does not claim that the Iran Deal itself is binding under international law, and such non-binding deals needn’t receive Senate consent. (Even if the Iran Deal itself were an international obligation, it is not true that “significant international obligations have always been established through treaties, which require Senate consent by a two-thirds majority.” See, e.g., SALT I, NAFTA, most other free trade agreements, the Algiers Accords, and most Chapter VII Security Council decisions.)
2. The administration did use the Iran Deal as a basis for a Security Council Resolution that is in part binding under international law. But as John Bellinger explained, the Iran Resolution does not appear to obligate the United States under international law to lift domestic U.S. sanctions, and thus does not tie Congress’s hands as a matter of international law. Rivkin and Casey seem to complain, more generally, about the President’s ability to vote in favor of any Security Council resolution that would impose binding obligations on the United States, included related to sanctions, without Senate consent. This is a power long exercised by the President under Article II and pursuant to authority conferred by Congress (see, e.g., here and here and especially here). Rivkin and Casey themselves have argued for the President’s use of the UN Security Council to impose international obligations on member states (including the United States) without Senate consent, albeit in the context of imposing sanctions on Iran. The Constitution and relevant statutes authorize the President to exercise the power either way.
3. Rivkin and Casey imply that the Iran Review Act gave away congressional power, when in fact all it did was delay the President’s ability to waive domestic sanctions. More broadly, they never tell us how “Congress or the Senate should “insist[] on compliance with the Senate’s treaty-making prerogatives.” The Senate can retaliate politically and legally over the medium term, as it has sometimes done in the past when presidents sought to circumvent Senate consent. But any action in the short term to require the President to submit the Iran Deal as a treaty would have required the same “veto-proof majority in both houses of Congress” that they complain the Iran Review Act requires.
4. Rivkin & Casey say that the Iran Deal “seems to contravene the genocide convention.” That Convention does not by its terms, as they say, “impose[] an affirmative obligation on all convention parties to prevent genocide and threats of genocide.” But assuming such an obligation exists, the fifteen nations that unanimously voted to support the Iran Deal in the Security Council clearly do not think that “lifting the Security Council resolutions [that ban] the sale of ballistic missiles to Iran after eight years” violate the Genocide Convention. Such an interpretation is a very speculative stretch at best.

5. Finally, Rivkin and Casey’s case for state sanctions fails to contend with the Supreme Court’s decisions in Garamendi, which ruled that an executive branch policy contained in an executive agreement (and not the agreement itself) sufficed to preempt contrary state sanctions law, and Crosby, which held that a federal statute that delegates to the president discretion over the scope of federal sanctions preempted related state sanctions. I would need to analyze the details of the state and federal sanctions regimes before determining whether Garamendi and Crosby compel preemption of the state sanctions, and Medellin certainly complicates the impact of the two decisions. But in combination with the federal statutory authorities the president can garner both for lifting federal sanctions and for his U.N. action, Garamendi and Crosby make state sanctions legally uncertain at best. (Note that in the Iran Deal the United States agreed to “actively encourage officials at the state or local level to take into account the changes in the U.S. policy reflected in the lifting of sanctions under this JCPOA and to refrain from actions inconsistent with this change in policy”).

As I have said before, the President’s Team has (as Presidents’ Teams are wont to do) stitched together his legal authorities in a clever way to empower him to pull off the very consequential Iran Deal. The Deal may well show that Congress has delegated or acquiesced in the expansion of too much presidential power. Perhaps Congress will draw lessons from and act on that realization—but I doubt it.