The Lawless Underpinnings of the
Iran Nuclear Deal
By David B. Rivkin, Jr. and Lee A. Casey
July 26, 2015
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
Obama executed the nuclear deal as an executive agreement, not as a treaty.
While presidents have used executive agreements to arrange less-important or
temporary matters, significant international obligations have always been
established through treaties, which require Senate consent by a two-thirds
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.
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.
Last week the
U.N. Security Council endorsed the Iran deal. The resolution, adopted under
Chapter VII of the U.N. Charter, legally binds all member states, including the
U.S. Given the possibility that Congress could summon a veto-proof majority to
block the president’s ability to effect sanctions relief, the administration
might be unable to comply with the very international obligations it has
created. This is beyond reckless.
On March 11
Secretary of State John
Kerry defended the administration’s decision not to take the treaty route
with Iran, saying it had “been clear from the beginning we’re not
negotiating a legally binding plan.” The Security Council gambit has enabled
the administration, without Senate consent, to bind the U.S. under international
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.
nuclear agreement’s legitimacy in international law is far from clear. The
Convention on the Prevention and Punishment of the Crime of Genocide imposes an
affirmative obligation on all convention parties to prevent genocide and threats
of genocide. Iran remains publicly committed to Israel’s elimination, an
unequivocal threat of genocide in violation of the Convention.
weapons delivered by ballistic missiles are the most likely means by which Iran
could implement its genocidal policy, an agreement that calls for lifting the
Security Council resolutions banning the sale of ballistic missiles to Iran
after eight years—as this nuclear deal does—also seems to contravene the
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.
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 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.
though, we are left with another reminder from the administration that brought
ObamaCare: Constitutional shortcuts almost invariably lead to bad policy
Rivkin and Casey are constitutional lawyers at Baker Hostetler LLP and served in
the Justice Department under Presidents Reagan and George H.W. Bush. Mr. Rivkin
is also a senior fellow at the Foundation for the Defense of Democracies.