Pay Attention! While Primaries Distract, Obama Shreds Constitutional Governance

While all eyes are on both parties’ primaries, constitutional governance -- liberty, popular sovereignty, and state power, those vital things the Constitution is supposed to shield from encroachment by the central government -- continues to be shredded.

Two cases in point: President Obama’s pressure on the states to drop sanctions against Iran, and his continuing scheme to dictate immigration law unilaterally.

The invaluable Omri Ceren (citing a Bloomberg View report) alerts us that the State Department has sent monitory letters to the governors of all fifty states “suggesting” that they review any sanctions imposed against Iran. Over half the states have such sanctions, targeting not only Iran’s nuclear work but the regime’s other weapons work (e.g., ballistic missiles), terror promotion, human rights abuses, detention of Americans, etc.

Explains Mark Dubowitz of the Foundation for Defense of Democracies:

[These sanctions] are an essential part of the non-nuclear sanctions architecture designed to both deter Iranian illicit behavior and to safeguard pension funds from the risk associated with entering Iran’s economy.

Alas, any counter-Iranian measure with real teeth is certain to fly in the face of President Obama’s Iran deal -- the Joint Comprehensive Plan of Action. As I’ve recently recounted, the text of the JCPOA expressly indulges Iran’s position that it will “cease performing [its] commitments” under the deal if it deems the sanctions to have been “reinstated in whole of part.” That threat should only relate to sanctions on Iran’s nuclear program, but -- as the Obama administration well knew -- many of the sanctions against significant Iranian entities (e.g., the National Iranian Oil Company and Bank Melli) are based on activities in addition to support for the nuclear program.

Moreover, Iran has publicly announced that it interprets the JCPOA as a sweeping eradication of sanctions related both to various non-nuclear activities (e.g., other weapons and ballistic missiles) and to sectors of its economy sanctioned due to activities beyond support for the nuclear program.

Consequently, because of Obama’s obvious desperation for a deal, coupled with the incompetent manner (or, more cynically, the intentionally ambiguous manner) in which the deal is drafted, Obama has created the following situation:

(a) Iran -- having already pocketed major concessions -- continually threatens to walk away unless the United States agrees to additional sanctions relief.

(b) If it is to accommodate the mullahs, as Obama is hard-wired to do, the administration must lean on the relevant actors to relax sanctions even if they are based on non-nuclear activities (e.g., terrorism or ballistic missiles).

Against that backdrop, the JCPOA also purports to oblige the federal government to use:

... “all available authorities [to eliminate any] law at the state or local level … [that] is preventing the implementation of sanctions lifting as specified in this JCPOA[.]”

Obama further explicitly commits in the JCPOA:

The United States will actively encourage officials at the state or local level to take into account the changes in the U.S. policy reflected in the lifting of sanctions under this JCPOA and to refrain from actions inconsistent with this change in policy. (Emphasis added)

Notice anything odd?

This is a foreign relations matter. So why does the Iran deal commit Washington merely to “encourage” and otherwise try to persuade state and local officials to honor the deal’s terms? Why not simply direct them to do so?

Because, for all its bluster about domestic and international law, the administration knows this deal has no legal standing.

Plainly, the president is trying to muscle his way through the inconvenience that the JCPOA is merely an executive agreement. It is not a legally enforceable treaty, nor is it supported by any legislation that would bind the states.

Obama is willing it to work through sheer extra-legal executive power.

Under the Constitution, the federal government has the power to bind the states on matters over which the Constitution gives Washington control, provided that the federal government does this binding in a constitutionally lawful manner.

It is freely conceded that the conduct of foreign relations and the regulation of international commerce are matters over which the Constitution grants the federal government supremacy. Yet, there are only two constitutionally lawful ways of binding the states: a ratified treaty, and/or a properly enacted congressional statute.

A mere executive agreement with the government of a second country (or multiple countries) that the president declines to submit to the Senate as a treaty, and that is not otherwise given legal teeth by Congress, is not enforceable against the states. Period.

This explains why the language of the JCPOA and the State Department’s letter to the states is vaguely extortionate rather than legally direct: Obama will “actively encourage” states and municipalities; the State Department “would urge [the state] to consider,” etc. The administration is pressuring the states, exploiting the brute fact that states know crossing the administration is fraught with risk. States, after all, depend on various federal funding streams and live in constant fear that the most politicized Justice Department in U.S. history will find some pretext or other to investigate them.

But understand: Obama is reduced to this bullying because the JCPOA is not a treaty and there is no statute that enforces its terms. He is attempting to rule by fiat backed by raw power, not law.

And, characteristically, his administration is trying to pull this off by contorting the facts.

The State Department letter “urges” the states to reconsider their sanctions because, it assures them, “the JCPOA … verifiably ensures that Iran’s nuclear program is and will remain exclusively peaceful.” This is false.

The Iran deal is not verifiable; it thus cannot and does not assure that Iran’s nuclear program is peaceful. Even by the deal’s own terms, Iran gets an industrial-size nuclear program that will be able to weaponize nuclear power with the flip of a switch -- or as Obama himself has put it, with “breakout times [that] would have shrunk almost down to zero” -- in a little over a decade (if not way before).

Moreover, even if the Iran deal had been an enforceable ratified treaty rather than a non-binding executive agreement, it was (as noted above) only supposed to relate to Iran’s nuclear program. By contrast, state sanctions against Iran (like federal sanctions) are not narrowly targeted at nukes; they relate to the panoply of the mullahs’ rogue activities in the areas of weapons and terrorism.

The State Department’s letter to the states implies that Obama’s purported achievement of a deal that renders Iran’s nuclear program permanently peaceful “addresses the underlying concerns” that caused the states to enact sanctions. Also false: far from addressing those concerns, the JCPOA exacerbates themIt provides lavish funds for Iran’s terror promotion and eases weapons sanctions outside the nuclear sphere. Hence, Iran’s brash testing of ballistic missiles -- festooned with the words “Israel must be wiped out” written in Hebrew -- in defiance of U.N. Security Council resolution 2231, which went into effect the very day the JCPOA was formally implemented.

After over seven Obama years, such legerdemain is to be expected. The more significant point, though, is the supplanting of our constitutional order of popular American sovereignty, federalism, and separation of powers. Obama’s Iran deal is the imposition of unilateral executive rule, against the popular will, supported by vaporous international arrangements rubber-stamped by the UN Security Council and reliant not on law but on executive intimidation of the states.

What Obama is attempting with respect to the Iran deal is another iteration of the authoritarian, anti-constitutional approach he has followed in the context of immigration policy -- the crux of United States v. Texas, the case argued before the Supreme Court Monday (and in which a decision is expected at the end of the Court’s term in late June).

Under a series of Supreme Court precedents (which, I have argued, improperly usurped state authority over immigration enforcement), it has been held that immigration enforcement is primarily a federal responsibility. Therefore, the legal doctrine of preemption is applied: any state law that contravenes federal law is void -- i.e., states may regulate only insofar as regulations are consistent with federal law.

I highlight the word “law” to hone in on how Obama has perverted the principles of preemption.

As I explained in my 2014 book Faithless Execution, the president takes two legally untenable positions on illegal immigration:

(a) That the doctrine of prosecutorial discretion empowers him to choose which laws he will enforce, and

(b) That if he chooses not to enforce laws in an area, like immigration, where the courts say federal law preempts state law, then state enforcement of congressional law is preempted by this executive branch non-enforcement policy.

Obama’s first position is perverse. A president’s chief constitutional duty is to see that the laws are faithfully executed. “Prosecutorial discretion” is just a resource-allocation doctrine specific to criminal law enforcement. Recognizing that law-enforcement resources are finite, it gives the executive branch authority to decide which individual cases merit prosecution. It is not a sweeping license to, in effect, repeal congressional statutes by not enforcing them across-the-board.

If it were? That would nullify the president’s obligation to execute the laws faithfully -- in effect making him the law-giver rather than the law-enforcer.

The president’s second position is also perverse: only federal law, adopted under the constitutionally prescribed legislative procedures, can preempt state law. When the president declines to enforce the law, he undermines rather than affirms the congressional laws that preempt the states.

Presidential policy preferences, moreover, are not legally binding on Congress, the states, or the people. Preemption is a doctrine of law, not policy. At the federal level, only Congress can make law. Consequently, the president lacks Congress’s limited constitutional authority to preempt the states.

Thus, Obama is claiming what is really dictatorial power masquerading as preemption law. Laid bare, he asserts the unilateral power to forbid states from enforcing immigration laws duly enacted by Congress -- laws that are essential to the security and stability, and thus to the very sovereignty, of the states.

The high-stakes contests for the presidential nominations of both major political parties are, of course, extremely important. But they are less important than the damage daily being done to our governing system: the “fundamental transformation” of the Constitution’s limited presidency into something more like the raw-power autocracy the framers feared.