Andrew C. McCarthy:
I have been wearing readers and my keyboard out for five months over the Republican strategy that abets President Obama’s aiding and comforting of Iran, rather than fighting it with every tool in the constitutional chest. These critiques of the Corker bill (enacted in May as the Iran Nuclear Agreement Review Act of 2015) have seemed unduly harsh to some GOP leaders and right-of-center pundits.
There is a purpose, however, behind my Cassandra-like lament: I have been trying to minimize the damage by persuading Congress to avoid giving the president’s atrocious deal — in particular, its erasure of the sanctions regime that had been squeezing the Iranian regime — the status of formal law.
Without congressional imprimatur — by either approval of a treaty or an authorizing statute — Obama’s deal would be a mere executive agreement. While harmful for the next 16 months, an executive agreement could be fully renounced when the next president takes office in 2017. In the meantime, Congress could enact resolutions stressing that the sanctions remain on the books and should be enforced. On notice that they could face crippling penalties once Obama is gone, individuals, corporations, and countries would be discouraged from commerce with Iran. Iran might even reject the deal.
By contrast, formal law binds our country. Laws must be faithfully executed by presidents — at least presidents not named Barack Obama.
It was clear to me that the Corker law, an authorizing statute, was Obama’s path to making the Iran deal binding law. That is why I could not agree that the Corker bill was “better than nothing.” That is why I remain baffled by GOP-sympathetic commentators who rationalize that Obama’s playing hardball left Republican leaders with no realistic alternatives. That is tantamount to saying our Constitution is not as strong as Obama and his international-law hocus-pocus. It is a claim made with a straight face only by one who either has not read or does not understand the Corker legislation.
Alas, what I warned against is coming to pass. The Left has wasted no time cashing the GOP’s Corker check
On Thursday, Senate Democrats successfully filibustered a Republican attempt to pass a futile “resolution of disapproval” against the Iran deal. Republicans had already forfeited their power to suspend the Corker review process. They would have been justified in suspending it because Obama failed to comply with the statute’s fundamental condition — the mandate that he disclose the whole agreement to Congress, including embarrassing “side deals” the administration has withheld. (These undeniably include understandings between Iran and the International Atomic Energy Agency on the critical issue of inspections; they probably also include commitments by Obama to protect several nations from “snapback” sanctions when, inevitably, Iran violates the agreement.)
Under Corker, which not only rigged the vote in Obama’s favor but also gave Democrats the option to prevent the vote by filibuster, the failed resolution authorized Obama to relieve sanctions against Iran’s nuclear program. The mullahs will get their cool $100 billion and double down — no, quintuple down — on their promotion of jihadist terrorism.
Here’s the “I told you so” part: No sooner had the Democratic filibuster succeeded than did two well-regarded legal scholars take to the pages of The Atlantic to pronounce that Obama’s Iran deal is the law of the land. Yale’s Bruce Ackerman and New York University’s David Golove contend that the agreement cannot be unilaterally repudiated by a future Republican president, no matter how much GOP congressional leaders and 2016 hopefuls bloviate to the contrary.
This conclusion will shape bipartisan conventional wisdom in Washington and the chattering class. And guess what? The progressive professors have a strong case because of the way the Corker law was written by GOP congressional leaders (in consultation with their Democratic counterparts and the White House). Corker’s law is quite plausibly interpreted as authorizing a full repeal of the sanctions against Iran’s nuclear program — meaning they could not be reinstated absent new legislation (which the Democrats and the “international community” would vigorously oppose). Certainly the odds are good that the federal courts would see it that way. (Did I mention that Senate Republicans have already confirmed over 300 Obama appointees to the bench?)
This is why I felt obliged to fight the Corker bill tooth and nail. As Ackerman and Golove posit, when executive agreements “have their foundation in congressional statutes authorizing the president to commit the nation,” then those statutes and the agreements they have authorized become “the supreme law of the land” every bit as much as treaties are.
The professors are transparently supportive of Obama and his Iran deal, so it is unsurprising that they overstate the case. They argue that the Corker law “explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” This is an exaggeration to the extent it implies that Congress, by enacting an authorizing statute, can empower the president to make any conceivable international agreement. Statutes may only regulate what the Constitution allows Congress to regulate; executive agreements must comply with the Constitution, statutes, and ratified treaties.
Yet, that caveat is beside the point when it comes to the Iran deal. There is no question that the Constitution authorizes Congress to regulate international commerce. The sanctions are regulations of international commerce, and so is the Corker statute insofar as it expressly authorizes the president to grant “statutory sanctions relief.”
If it were to go to that point, doesn’t the Supreme Court now rule on what it thinks Congress MEANT to say?