The Obama administration thinks it outsmarted opponents of the Iran deal by running to the U.N. Security Council for international approval before Congress’s review period even started.
It was a typical Obama F-U to his domestic opponents.
Since Congress now needs a super-majority to block the deal, the outcome is uncertain. The Obama team is going all out to pressure Democrats to pledge their loyalty to Obama above all else. Loyalty to Obama is likely to win, though it’s possible Congress will grow some backbone before it comes to a vote.
Obama even is complaining about Israel Lobby money (hint, hint), while John Kerry for the umpteenth time makes implied threats against Israel. Kerry even is on a trip to the Middle East conspicuously not visiting Israel.
Meanwhile, the Ahyatollah and his minions are laughing at Obama, Kerry and the U.S. Not just laughing, mocking and gloating, all the while renewing their vows of death to the U.S. and Israel.
Since the federal goverment appears hapless and hopeless, is there anything the states can do to stop this deal?
Joel Pollak at Breitbart.com was the first, that I’m aware of, to advance a theory of how states can play a crucial role. A reader forwarded the post to me last week while I was in
crazyland San Diego, SURPRISE! THE STATES CAN REJECT THE IRAN DEAL:
There is one effective way, however, that the Iran deal can be rejected: states and local governments can refuse to comply with it.
That may come as a surprise. States and local governments do not play much of a role in foreign policy. However, they cannot be forced to implement an international treaty or agreement that is not self-executing–i.e. one whose implementation requires new congressional laws.
Thanks to the victory at the Supreme Court by then-Texas Solicitor General Sen. Ted Cruz (R-TX) in Medellín v. Texas (2008), it is a settled principle in constitutional law that states cannot be forced to comply with international treaties unless Congress has passed statutes giving them effect.
Pollak goes on to explain that under the Iran deal the federal government is required to do something it has no power to do, remove state sanctions:
The Iran deal obligates the federal government to take “appropriate steps” to cancel state and local restrictions, and requires the government to refrain from further sanctions in the future. The truth is that the federal government has no constitutional authority to do so.
Divestment laws and contracting restrictions can remain in place at the state and local level until they are superseded by federal statute. The language of the Iran deal itself is not enough to constitute such statutory authority, even if the Iran deal does pass by failure to override Obama’s veto.
If the states want, they can add new sanctions and restrictions on Iran–perhaps to replace those that the federal government is lifting, such as restrictions on Iranian engineers studying nuclear technology at American universities.
The Iran deal specifies that Iran will treat “an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments.” That paragraph (27) deals with federal sanctions, but is written vaguely.
That leaves great power in the states’ hands to trigger the deal’s collapse–or force Obama to re-negotiate.
Will this work?
Two esteemed lawyers, David B. Rivkin and Lee A. Casey, writing in The Wall Street Journal, seem to think this is a possibility, The Lawless Underpinnings of the Iran Nuclear Deal (paywall):
The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make. However, because of the way the deal was pushed through, the states may be able to derail it by enacting their own Iran sanctions legislation….
The Constitution’s division of the treaty-making power between the president and Senate ensured that all major U.S. international undertakings enjoyed broad domestic support. It also enabled the states to make their voices heard through senators when considering treaties—which are constitutionally the “supreme law of the land” and pre-empt state laws.
The Obama administration had help in its end-run around the Constitution. Instead of insisting on compliance with the Senate’s treaty-making prerogatives, Congress enacted the Iran Nuclear Agreement Act of 2015. Known as Corker-Cardin, it surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement. Instead, the act effectively requires a veto-proof majority in both houses of Congress to block elements of the Iran deal related to U.S. sanctions relief. The act doesn’t require congressional approval for the agreement as a whole.
The U.N. Charter resolution has trapped the U.S. into a position where it can renounce its obligations only at the cost of being branded an international lawbreaker. The president has thus handed the legal high ground to Tehran and made undoing the deal by his successor much more difficult and costly….
A further legal complication: Even if Congress doesn’t vote to bar President Obama from lifting sanctions on Iran, the president still wouldn’t be able to deliver fully on the deal’s unprecedented sanctions-lifting commitments. They were promised regardless of any future Iranian aggression in the region, sponsorship of terrorist acts or other misconduct.
Some of the U.S. statutes allow the president to lift certain sanctions on Iran. But many of the most important sanctions—including sanctions against Iran’s central bank—cannot be waived unless the president certifies that Iran has stopped its ballistic-missile program, ceased money-laundering and no longer sponsors international terrorism. He certainly can’t do that now, and nothing in the deal forces Iran to take either step. The Security Council’s blessing of the nuclear agreement has no bearing on these U.S. sanctions.
The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.
That leaves the states free to impose their own Iran-related sanctions, as they have done in the past against South Africa and Burma. The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel….
Law Professor Elizabeth Price Foley writing at Instapundit has a similar take, that state sanctions can be a bother, but it’s unclear how far they can go:
Rivkin and Casey are right about the Constitution’s treaty power being circumvented, with the unfortunate blessing of a cowardly Congress. They’re also right that the Administration’s decision to obtain a speedy U.N. Security Council resolution prior to the Corker-Cardin congressional vote is a blatant and reckless end-run around U.S. sovereignty, bypassing our national legislature in favor of a multi-lateral, extra-sovereign body. Any future President wishing to unravel the Iranian nuclear deal–which Secretary of State has assured us repeatedly is “not legally binding“– will now be branded by the U.N. as an international “law breaker,” a point I made back in April.
I hope States do, indeed, continue to refuse to do business with companies doing business with Iran. The financial impact probably won’t be enough to trigger an Iranian accusation that the Obama Administration isn’t enforcing the deal, however, and consequently the Administration is unlikely to march into court claiming that the Supremacy Clause trumps States’ actions. So I doubt States’ doing this will “prompt the [nuclear] deal to unravel.” Nonetheless, this is one interesting and creative way that States can constitutionally push back.
So where does that leave us?
I’m not sure in practical effect what existing state sanctions would do to interrupt the deal. It is one thing for the states to refuse to comply with obligations purportedly placed on it by a treaty, but it would seem to be something different if the states have laws that actually interfered with the treaty.
I don’t claim any expertise in this area of law, but it seems to me to the extent laws previously have been passed in the States those would continue in effect, but new laws may not be able to be passed.
To really hurt the deal, major states would have to effectively bar a foreign company that does business in Iran from conducting business in the state. For example, if the State of New York barred any financial institution that does business with Iran from doing business in New York, that would have an enormous impact. But I don’t know whether that would create separate legal issues.
In opposing the deal, an all of the above strategy is warranted. By running to the U.N. Security Council before Congress acted, Obama has told the American people that he doesn’t care what we think. And he may get away with it in Congress.
But states have rights. And they should at least attempt to exercise those rights.
— Joel Pollak (@joelpollak) July 28, 2015
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