Nuke the Iranian Nuke-Pact

Congress has until October 18 to stop President Obama from implementing the Iranian nuke-pact.  If it doesn’t, a draft lawsuit is on tap that could be invoked by victims of Iranian-funded terrorism, enjoining Obama from releasing sanctions. This approach would be preferable to their becoming dependent upon passage of legislation designed to prevent Obama from waiving or lifting sanctions as part of the Joint Comprehensive Plan of Action (JCPOA) until Iran pays them restitution, because this bill -- on the voting-calendar for September 29 -- would probably not be passed by a veto-proof margin, even were it to survive a senatorial filibuster.

Also, state-level litigation is being contemplated, seeking to maintain sanctions regardless of the pact, despite -- or perhaps due to -- its approval by the U.N. Security Council. Demands for such action abound.

It is preferable, however, that both houses of Congress act in concert, for they have “standing,” as per a recent federal court determination regarding the anti-ObamaCare suit filed by House Speaker John Boehner (R-OH). Both he and Senate Majority-Leader Mitch McConnell (R-KY) have repeatedly committed to do “everything possible” to block this capitulation.

Both the House and the Senate can sue the president over his handling of the Iran deal by filing “bipartisan-bicameral litigation,” as per ten prior heavily-hyperlinked analyses by this author dating back to May. This update provides a simplified series of suggestions for Congress to tackle immediately, while discounting attempts of naysayers to obfuscate rhetorically.

Tea Party Patriots -- traditionally focused upon domestic policy -- showed how promoting this venture can (finally!) go-viral, transcending its distinguished activism that culminated in its fast-paced, all-star D.C. rally).  Within 19 hours (Friday overnight) following Facebook posting of its endorsement of such litigation, TPP had attracted 11,509 “likes”…2002 “shares”…and 621 comments.

The blogosphere is otherwise replete with post-mortems that have either extolled President Obama’s political savvy by invoking straw-dog arguments (authored by liberals often exhibiting blind Islamophilia) or lambasted Congress for having conducted show-votes without offering viable action-items (authored by conservatives often engaged in thinly-veiled fundraising).

Provision of an exposé is deferred, except to note that at least one reputable organization, Heritage Action for America, inexplicably went-dark despite receipt of numerous proddings from this author, a “Sentinel,” including an op-ed detailing a lawsuit-strategy. Ultimately, one of its grassroots managers (Hugh Fike) wrote:  “Litigation is not an effective way to prevent this from happening.”

Litigation is the only way to prevent this from happening.

Such a defeatist posture ignores increasing recognition of the need to claim the pact is a “treaty,” citing Gibbons v. Ogden. It differentiates long-term diplomatic agreements from short-term commercial deals that would be concluded as executive agreements.

Constitutional-scholar Dr. John C. Eastman (personal communication, August 19) built upon this concept by noting that 34 senators “who, collectively, had the votes to prevent ratification of a treaty would have standing to challenge the process that negated their vote.  That’s the Coleman v. Miller case on all fours.”

The Senate rejected a proposal (by a 39-57 tally) that would treat a nuclear deal like a treaty on April 28 -- sight unseen, because its text wouldn’t be available until Bastille Day in July -- but the amendment was supported by 39 Republicans [including McConnell and Sen. Rand Paul (R-KY)]. Inasmuch as two declared Republican presidential candidates, Sens. Ted Cruz (R-Texas) and Marco Rubio (R-Fla.), did not vote, it would seem to be do-able to accrue 34 senators for a separate legal filing from the 41-senator pool that didn’t endorse the view that the pact constitutes an executive-agreement (plus others who might have developed second thoughts, including the four Democrats who ultimately opposed the pact).

The Senate can act collectively, however, only if the filibuster is neutralized by invoking the “nuclear option.” This recommendation has been made by 57 House-members and at least one POTUS candidate [Gov. Kasich (R-OH)].

Opponents to this approach falsely claim that this tradition “constitutionally” protects the minority and would be moot because of the presidential veto, as did Senator John Thune (R-SD) on MSNBC’s “Morning Joe” on September 21. Consciously or unconsciously, they ignore the facts that this threshold (Rule 22) is not written into America’s founding documents and that the president would not be able to veto a senatorial resolution authorizing the filing of litigation -- with the president as the respondent -- claiming the pact is a “treaty.”

The White House claims the congressional deadline for disapproval of the pact ran on September 17, the 60th day following its formal submission under the Corker-Cardin Act [formally, the Iran Nuclear Agreement Review Act (INARA)], enacted in May. The pact (Annex V) calls for “Adoption Day” to occur 90 days following U.N. Security Council approval (which occurred on July 20) and “Implementation Day” to occur as soon as specified reporting-requirements have been satisfied.

As a result, formal adoption can occur as early as on October 21 and there is no built-in reason why its implementation could not transpire simultaneously. Thus, although Obama’s inherent lawlessness may have skewed his arithmetic, it is understandable that he plans to issue waivers suspending all U.S. nuclear-related sanctions on October 18 (presumably, dating from the signing-date instead).

While honoring the September 17 deadline would have been ideal, the House has recognized that the challenge to the INARA will entail claiming this “clock” actually has not yet been triggered due to provision of knowingly incomplete data. The House has yet to convert its resolution into litigation.

The future of faux inspections has arrived.

The two missing “secret” disclosures detail the “Possible Military Dimensions of Iran's Nuclear Program” and the long-term plan with the International Atomic Energy Agency (IAEA), information that Secretary of State John Kerry demanded before he demurred. Yet, they are accessible, for even Iranian legislators are clamoring to review them.

Olli Heinonen, former deputy director-general for safeguards at the IAEA, said that “[a]ccording to the IAEA rules and practice, such documents could be made available to the members of the IAEA Board…If a board member asks it and other resist the distribution…this can be overcome by a vote. Simple majority is enough, and no vetoes exist in the IAEA system. The board can also request the whole document to be made public.”

When the Associated Press revealed their existence in July, it explained that the inspection-regimen allows Tehran to employ its own experts and equipment in the search for evidence for activities that it has consistently denied -- trying to develop nuclear weapons. Thus, it “diverges from normal inspection procedures between the IAEA and a member country by essentially ceding the agency’s investigative authority to Iran.”

Heinonen called the secrecy of the arrangement “very unusual.” Another expert, David Albright, the founder and the president of the Institute for Science and International Security, averred the secrecy is “undermining the IAEA’s credibility.”

Implementation of the IAEA-Iranian protocol, predictably, has already allowed for Iran to have collected its own environmental samples at the historically off-limits Parchin military base without the presence of international inspectors and without a procedure that mandated use of a verifiable chain-of-custody to detect nuclear development. The White House was nevertheless pleased, and the IAEA chief insisted this met strict agency standards, even as nuclear security experts urged the IAEA and P5+1 powers to reveal more details about the Parchin inspection.

Thus, lawmakers are “fuming” over this unrefuted revelation, despite reassurances by Rep. Debbie Wasserman Schultz (D-FL), Chair of the Democratic National Committee. She said that the White House assured her that Iran would not be able to carry out its own inspections.

As a result, without revisiting all the flaws in the pact, a New York Observer editorial derided Sen. Cory Booker (D-NJ) because “This isn’t about patting the heads of Jewish donors whose feelings are hurt; this is about the existential threat to the world’s one Jewish state.” Already, Obama’s acolytes peddle historical revisionism that corrupts essential-truths and, as a result, stifles recognition of increasing regional Iranian hegemony.

The sole action-item that will stop Obama is seeking a court-order to block implementation of the pact.

The power politics facing those wanting to sue Obama are animated both by conflict between the two political parties and by interplay between conservative and moderate Republicans. Thus, pseudo-sympathetic Dems and RINOs deflect from confronting their responsibilities, either referring to any potential blockage in the past tense or encouraging pursuit of NIMBY-efforts outside the D.C.-Beltway.

Instead, pact-opponents must resolutely focus upon what Congress must urgently accomplish, perhaps invoking the leadership horse-trading triggered by Speaker Boehner’s impending resignation and bootstrapping endorsements by POTUS-candidates. Both houses must honor the two recognized causes-of-action, relating to belated recognition that the pact is a “treaty” [as per Rep. Louie Gohmert’s (R-TX) resolution] and abject failure to satisfy explicit tenets in the INARA.

A third rationale recognizes that INARA’s passage was based upon faulty “congressional intent,” derived from the administration’s repeated pledges that any final pact would not relieve sanctions on conventional arms. This messaging was trumpeted by the administration up until one week prior to the signing of the pact on July 14, and then broken when it was announced that U.N. Security Council resolution #1929 -- limiting explicit categories of conventional arms -- would be lifted.

The judiciary cannot dismiss this initiative as a “political question” when it has both constitutional and statutory underpinnings. Congress must sue before “implementation day,” which could occur as early as in mid-October, if it is to preserve Western Civilization.

Robert B. Sklaroff, M.D. is a Republican Committee-Person. Corroboration of the assertions in this op-ed may be fact-checked either by viewing the on-line version thereof (with 67 hyperlinks that, themselves, often lead to citation of additional articles) or by contacting its author at