Last-ditch efforts to stop the Iran deal

It may well be that yesterday marked the beginning of the Iran deal, as Carol Brown laments.  But some have not given up the fight and are pursuing strategies to snatch victory from the jaws of Obama.  Two paths are apparent, both involving the courts.

Speaker Boehner has announced that he may sue.  Jake Sherman writes in Politico:

Speaker John Boehner said Thursday he might sue President Barack Obama again.

The Ohio Republican said Obama has not turned over the entirety of the Iran agreement for congressional review as mandated by law. Boehner said legal action is “an option that’s very possible.”

“If you read the provisions in [the congressional review law], it’s pretty clear that the president has not complied,” Boehner said Thursday during his weekly news conference. “Because it makes clear that any side agreements and any other type of an agreement — including those that do not directly involve us — must be turned over as part of it. I do not believe that he’s complied.”

The speaker said the agreement is "worse than anything I could’ve ever imagined."

Although the courts have generally been reluctant to get involved in disputes between the legislative and executive branches, a recent Obamacare decision gives some hope.  Northwestern University constitutional law professor Eugene Kantorovitch explains in the Washington Post:

In fact, there are at least two paths to invalidating any sanctions relief implemented by the president – a lawsuit by a House of Congress, or action involving state sanctions laws.

Yesterday a D.C. Federal district court issued a landmark ruling in House of Representatives v. Burwell, upholding the House of Representatives standing to challenge Executive action under the Affordable Care Act. The question of institutional legislative standing is a fairly novel one, and thus this is an important decision.

Whether it survives on appeal, the decision creates a major and previously unanticipated opening for a congressional lawsuit challenging the Joint Comprehensive Plan of Action. The constitutional argument would focus on the non-transmission of documents required under the Iran Nuclear Agreement Review Act of 2015 (the Corker-Cardin deal), which would seem to satisfy the standing test established by the district court.

Omri Ceren, in an email, summarizes the complex argument:

It begins in the usual place: the 60 day review process hasn't started because the Iran-IAEA side deals haven't been transmitted to Congress. But the injury isn't just that waiving sanctions is illegal, which is the way the argument usually proceeds. Instead the Kontorovich argument is that Congress has been denied its Article I prerogative to exercise its legislative authority: since binding action on the JCPOA can only occur between Day 1 and Day 60 of the Corker "period of review," and since that clock hasn't started so we're not in Day 1, Congress has been denied the ability to act on the JCPOA. (snip)

White House spokesperson Earnest was asked about possible Congressional litigation at today's White House press briefing. His answer: "we've been clear that the [transmitted] documentation included all the documentation that was in the possession of the United States government" [b].

That answer is unlikely to satisfy Congress and may not pass judicial scrutiny. The White House appears to have intentionally not called for the side deals, lest they have to transmit them. Olli Heinonen - a 27 year IAEA veteran who sat atop the agency's verification shop - has explained that the U.S. could very easily call for the side deals because the U.S. is a member of the IAEA Board: "According to the IAEA rules and practices such documents could be made available to the members of the IAEA Board... If a board member asks it and others resist the distribution ... this can be overcome by a vote... Simple majority is enough, and no vetoes exist in the IAEA system."

Kantorovitch therefore cautions:

Congress should insist on not voting on anything labelled a “resolution of disapproval.” Indeed, Congress cannot competently act on a resolution of disapproval, both because such a resolution lacks any legal force until the period of review commences, and because they have been denied the relevant information necessary to fulfill their constitutional role.

As to the second path, revolving around state sanctions:

Many states have their own Iran sanctions’ laws, and many are are moving to implement or strengthen such. Many of the state sanctions regimes provide that they terminate if federal sanctions are suspended. Such a state may well be sued by those subject to the state sanctions, arguing that the state sanctions are preempted by federal law, on the view that federal sanctions have been suspended or waived. The plaintiffs in such a case would certainly have standing. But as a defense to such a suit, the state could then argue that in fact the federal sanctions have not been waived or suspended, under the terms of Corker-Cardin.

Such an argument would be eminently justiciable, as standing generally applies to plaintiff’s claims, not to defenses. It is not unheard for the legality of something to be non-justiciable in a direct challenge, but reviewable in an enforcement action. To put if differently, state law can’t be preempted by an invalid federal action.

Meanwhile, Senator Ted Cruz recommends two more steps, in addition to noting the lack of complete documentation mentioned above:

Leader McConnell should schedule a vote on a resolution expressing the sense of the Senate that, if the agreement had been introduced as a treaty, it would not be ratified. This will put senators on record and will make clear that there is insufficient support in the Senate for approving the agreement as a treaty.

Third, given President Obama’s regrettable history of lawlessness, it is reasonable to assume that he will simply ignore the law and declare that he is lifting sanctions under the agreement anyway. On that assumption, we should make clear to the CEOs of banks holding frozen Iranian funds that their misplaced reliance on the president’s lawlessness would not necessarily excuse them from the obligation to comply with existing federal sanctions laws. And if they release billions in funds to Khamenei, they risk billions in civil (and possibly even criminal) liability once President Obama leaves office. Having spent years advising major corporations in private practice, I can say that their general counsels will likely tell them their legal exposure is real, which could well result in the banks deciding not to release the funds to Iran, despite the president’s actions.

The real Rubicon to be crossed in the Iran deal is the release of financial assets to Iran.  Once they are gone, they cannot be gotten back, and based on statements from Iran as late as yesterday, it is certain they will be employed in part to rain down death and destruction on Israel, the United States, and all who do not adhere to the mullahs’ version of Islam.  One can imagine Obama’s fury if banks decline to release funds based on liability worries.

Hat tip: Karin McQuillan

Update. A friend writes:

Today, we mourn the loss of 2,977 irreplaceable people. We also mourn the loss of our irreplaceable nation.

During these long fourteen years, we descended into the pit of madness, from which we may never crawl out.

The American people voted twice for a man who is giving $150 billion and nuclear weapons to our worst enemies.

On 9/11, they attacked us armed only with box-cutters. Now what?

It may well be that yesterday marked the beginning of the Iran deal, as Carol Brown laments.  But some have not given up the fight and are pursuing strategies to snatch victory from the jaws of Obama.  Two paths are apparent, both involving the courts.

Speaker Boehner has announced that he may sue.  Jake Sherman writes in Politico:

Speaker John Boehner said Thursday he might sue President Barack Obama again.

The Ohio Republican said Obama has not turned over the entirety of the Iran agreement for congressional review as mandated by law. Boehner said legal action is “an option that’s very possible.”

“If you read the provisions in [the congressional review law], it’s pretty clear that the president has not complied,” Boehner said Thursday during his weekly news conference. “Because it makes clear that any side agreements and any other type of an agreement — including those that do not directly involve us — must be turned over as part of it. I do not believe that he’s complied.”

The speaker said the agreement is "worse than anything I could’ve ever imagined."

Although the courts have generally been reluctant to get involved in disputes between the legislative and executive branches, a recent Obamacare decision gives some hope.  Northwestern University constitutional law professor Eugene Kantorovitch explains in the Washington Post:

In fact, there are at least two paths to invalidating any sanctions relief implemented by the president – a lawsuit by a House of Congress, or action involving state sanctions laws.

Yesterday a D.C. Federal district court issued a landmark ruling in House of Representatives v. Burwell, upholding the House of Representatives standing to challenge Executive action under the Affordable Care Act. The question of institutional legislative standing is a fairly novel one, and thus this is an important decision.

Whether it survives on appeal, the decision creates a major and previously unanticipated opening for a congressional lawsuit challenging the Joint Comprehensive Plan of Action. The constitutional argument would focus on the non-transmission of documents required under the Iran Nuclear Agreement Review Act of 2015 (the Corker-Cardin deal), which would seem to satisfy the standing test established by the district court.

Omri Ceren, in an email, summarizes the complex argument:

It begins in the usual place: the 60 day review process hasn't started because the Iran-IAEA side deals haven't been transmitted to Congress. But the injury isn't just that waiving sanctions is illegal, which is the way the argument usually proceeds. Instead the Kontorovich argument is that Congress has been denied its Article I prerogative to exercise its legislative authority: since binding action on the JCPOA can only occur between Day 1 and Day 60 of the Corker "period of review," and since that clock hasn't started so we're not in Day 1, Congress has been denied the ability to act on the JCPOA. (snip)

White House spokesperson Earnest was asked about possible Congressional litigation at today's White House press briefing. His answer: "we've been clear that the [transmitted] documentation included all the documentation that was in the possession of the United States government" [b].

That answer is unlikely to satisfy Congress and may not pass judicial scrutiny. The White House appears to have intentionally not called for the side deals, lest they have to transmit them. Olli Heinonen - a 27 year IAEA veteran who sat atop the agency's verification shop - has explained that the U.S. could very easily call for the side deals because the U.S. is a member of the IAEA Board: "According to the IAEA rules and practices such documents could be made available to the members of the IAEA Board... If a board member asks it and others resist the distribution ... this can be overcome by a vote... Simple majority is enough, and no vetoes exist in the IAEA system."

Kantorovitch therefore cautions:

Congress should insist on not voting on anything labelled a “resolution of disapproval.” Indeed, Congress cannot competently act on a resolution of disapproval, both because such a resolution lacks any legal force until the period of review commences, and because they have been denied the relevant information necessary to fulfill their constitutional role.

As to the second path, revolving around state sanctions:

Many states have their own Iran sanctions’ laws, and many are are moving to implement or strengthen such. Many of the state sanctions regimes provide that they terminate if federal sanctions are suspended. Such a state may well be sued by those subject to the state sanctions, arguing that the state sanctions are preempted by federal law, on the view that federal sanctions have been suspended or waived. The plaintiffs in such a case would certainly have standing. But as a defense to such a suit, the state could then argue that in fact the federal sanctions have not been waived or suspended, under the terms of Corker-Cardin.

Such an argument would be eminently justiciable, as standing generally applies to plaintiff’s claims, not to defenses. It is not unheard for the legality of something to be non-justiciable in a direct challenge, but reviewable in an enforcement action. To put if differently, state law can’t be preempted by an invalid federal action.

Meanwhile, Senator Ted Cruz recommends two more steps, in addition to noting the lack of complete documentation mentioned above:

Leader McConnell should schedule a vote on a resolution expressing the sense of the Senate that, if the agreement had been introduced as a treaty, it would not be ratified. This will put senators on record and will make clear that there is insufficient support in the Senate for approving the agreement as a treaty.

Third, given President Obama’s regrettable history of lawlessness, it is reasonable to assume that he will simply ignore the law and declare that he is lifting sanctions under the agreement anyway. On that assumption, we should make clear to the CEOs of banks holding frozen Iranian funds that their misplaced reliance on the president’s lawlessness would not necessarily excuse them from the obligation to comply with existing federal sanctions laws. And if they release billions in funds to Khamenei, they risk billions in civil (and possibly even criminal) liability once President Obama leaves office. Having spent years advising major corporations in private practice, I can say that their general counsels will likely tell them their legal exposure is real, which could well result in the banks deciding not to release the funds to Iran, despite the president’s actions.

The real Rubicon to be crossed in the Iran deal is the release of financial assets to Iran.  Once they are gone, they cannot be gotten back, and based on statements from Iran as late as yesterday, it is certain they will be employed in part to rain down death and destruction on Israel, the United States, and all who do not adhere to the mullahs’ version of Islam.  One can imagine Obama’s fury if banks decline to release funds based on liability worries.

Hat tip: Karin McQuillan

Update. A friend writes:

Today, we mourn the loss of 2,977 irreplaceable people. We also mourn the loss of our irreplaceable nation.

During these long fourteen years, we descended into the pit of madness, from which we may never crawl out.

The American people voted twice for a man who is giving $150 billion and nuclear weapons to our worst enemies.

On 9/11, they attacked us armed only with box-cutters. Now what?