In the Wall Street Journal, David Rivkin and Lee Casey argue that “The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make.” (Via Elizabeth Price Foley at Instapundit, who has further quotes and favorable comments). Jack Goldsmith responds at Lawfare: More Weak Arguments For The Illegality of the Iran Deal.
I agree with most of Professor Goldsmith’s comments, including: (a) I think objections to the UN Security Council resolution are misplaced, as it appears to the bind the U.S. to future action regarding U.S. sanctions [at least that’s what John Bellinger says, and I would not want to argue with him], and (b) I see no constitutional objection to the President telling Iran that he will take certain actions that are within his constitutional and statutory powers [as Goldsmith has argued previously].
But I still think the Iran deal is constitutionally problematic, for two reasons (neither of which Professor Goldsmith addresses):
1. The deal’s constitutionality appears to depend on it being non-binding. A number of commentators have assumed that it is. But it appears ambiguous at best on this point. It’s true that the text (introduction to Article I) declares that “Iran and E3/EU+3 will take the following voluntary measures…” But standing alone that language seems unclear – does it mean that the parties need not take the measures unless they voluntarily want to in the future, or that the parties are voluntarily (i.e., without coercion) entering into the agreement? On a quick read, nothing else in the agreement refers to it as non-binding, and many of its measures are described in obligatory terms. (For example, Section 26, the U.S. “will refrain” from re-imposing sanctions once sanctions are lifted.) Although the U.S. negotiators previously referred to the pending deal as nonbinding, Iran insisted in response that it was intended to be binding (this was in March/April of this year). I’m not aware that the U.S. has recently and unequivocally described the deal as nonbinding (and even if it did, it’s not clear that the unilateral view of the U.S. negotiators would be conclusive).
In my view, the President has a constitutional obligation to make clear, to both the other parties to the agreement and to Congress, that the agreement is nonbinding. For reasons set forth here, the President does not have independent constitutional power to make a binding agreement in these circumstances. But if the U.S. is not clear that the agreement is nonbinding, the agreement might be regarded as binding under international law despite the unexpressed U.S. intentions. Moreover, as Congress considers whether to approve lifting U.S. sanctions, Congress needs to understand whether Iran’s commitments under the deal are binding (especially because if the U.S. commitments aren’t binding, neither are Iran’s).
As a result, at minimum the deal is unconstitutional unless the administration makes clear (and gets agreement from the other parties) that the deal is nonbinding.
2. Even if the deal is nonbinding, the President has still exceeded his authority by making commitments on which he cannot deliver. As noted, I entirely agree with Professor Goldsmith that the President, exercising his executive power over foreign affairs, may agree that he will take actions within his constitutional and statutory power if Iran undertakes specified actions (all in a reciprocal and nonbinding way). But the Iran deal promises U.S. actions beyond President Obama’s term in office, and as a result promises actions over which he has no control. To take two examples —
As noted, under Section 26:
The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions.
Under Section 28:
Senior Government officials of the E3/EU+3 [which includes the U.S.] and Iran will make every effort to support the successful implementation of this JCPOA including in their public statements.
Both sections reflect ongoing commitments by the U.S. for the ten-year life of the deal. At minimum, these sections purport to direct future U.S. Presidents to support the deal, and at least arguably they direct future Congresses not to re-impose sanctions. Even if these directions are not binding as a matter of international law, they create diplomatic expectations which seem constitutionally unsound. Nothing in the Constitution empowers the President to speak for future Presidents.
It may be argued that, whatever the Constitution’s original meaning, Presidents have entered into many nonbinding commitments on important matters, sufficient to establish a constitutional precedent. I’m skeptical, however, that many prior nonbinding commitments have contained specific directions to future Presidents, as opposed to undertakings by the current President. (And even if they have, they may simply represent previous constitutional violations).
In sum, the Iran deal is unconstitutional (a) because the President has not taken sufficient action to assure that it is nonbinding under international law, and (b) even if it is nonbinding under international law, it should be only a commitment of the current President and should not purport to be an undertaking of future Presidents for whom the current President cannot speak.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.