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July 27, 2015

“LAWLESS” PRETTY MUCH SUMS IT UP: David Rivkin and Lee Casey in the Wall Street Journal, “The Lawless Underpinnings of the Iran Nuclear Deal.”

The Iranian 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 legislation. . . .

The 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.

The Obama 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. . . .

The 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.

That leaves 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.

Rivkin and Casey are right about the Constitution’s treaty power being circumvented, with the unfortunate blessing of a cowardly Congress. They’re also right that the Administration’s decision to obtain a speedy U.N. Security Council resolution prior to the Corker-Cardin congressional vote is a blatant and reckless end-run around U.S. sovereignty, bypassing our national legislature in favor of a multi-lateral, extra-sovereign body. Any future President wishing to unravel the Iranian nuclear deal–which Secretary of State has assured us repeatedly is “not legally binding“– will now be branded by the U.N. as an international “law breaker,” a point I made back in April.

I hope States do, indeed, continue to refuse to do business with companies doing business with Iran. The financial impact probably won’t be enough to trigger an Iranian accusation that the Obama Administration isn’t enforcing the deal, however, and consequently the Administration is unlikely to march into court claiming that the Supremacy Clause trumps States’ actions.  So I doubt States’ doing this will “prompt the [nuclear] deal to unravel.”  Nonetheless, this is one interesting and creative way that States can constitutionally push back.