Legislative history and Congress’s Increasingly Strong Case vs. Sanctions Relief By Eugene Kontorovich
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/17/legislative-history-and-congresss-increasingly-strong-case-vs-sanctions-relief/?postshare=8041442497963505
In this post, I will discuss how the legislative history of the Iran Nuclear Agreement Review Act of 2015 adds significant support to arguments that the President has not complied with its terms, and that sanctions on Iran cannot be suspended until he does. I will also show how a provision of the statute previously not discussed in this context adds further support to the view that the so called “side deal” with the IAEA is part of the “deal.”
Does failure to transmit prevent sanctions relief?
As Jack Goldsmith acknowledges in a recent post, this is a very plausible reading of the statute. I also agree with him that it is not mandated by the text. However, the legislative history tilts the scales in this direction. The Chairman of the House Foreign Affairs committee clearly explained: “Sanctions relief is frozen until Congress receives the agreement and then holds a referendum on its merits.” (emphasis added)
In the Senate, the point was elaborated on at more fully. As the co-sponsor, Sen Corker put it (emphasis added):
[A]s discussed during the committee markup, we all agree that the period for review only begins when all the documents required to be submitted along with the agreement itself and all of the annexes and other materials that are covered by the definition of agreement in the bill have been submitted to Congress. That is, the period for review under our bill only begins to run when all of the documents that make up the agreement and have to be submitted with it are submitted to Congress, as provided in the bill.
No one argued against these characterizations, and the President signed the law knowing this was Congress’s interpretation.
Does the IAEA arrangement have to be transferred?
There is strong but apparently previously neglected argument that strongly supports the view that the IAEA-Iran arrangement must be transferred under the law. Section (a)(3) of INARA explicitly exempts one particular document from most of the transmission and other review requirements of the law: the “EU-Iran Joint Statement” of April 2, 2015.” However, INARA covers only “the agreement.” Under the definition of the “agreement” that would exclude the IAEA-Iran documents, the EU-Iran statement would not come close to falling with the scope of INARA, because the U.S. is not a direct party.
Yet Congress obviously understood the EU-Iran Joint Statement to be a “side agreement” that would fall within the scope of INARA, as defined in subsection (h)(1), and thus chose to specifically exempt it. Those who argue that the President does not have to transfer the Iran-IAEA arrangement rely on the fact that the U.S. is not formally a part of those arrangements. Yet the same is true of the EU-Iran statement; indeed, even more so, as the EU is not, unlike the IAEA, the JCPOA’s enforcement mechanism. Yet the Joint Statement is treated as falling within the relevant definition of “agreement,” that includes side-deals. Under the expressio unis principle, this is strong support for the view that Iranian arrangements with the IAEA is covered.
The legislative history also sheds light on whether the law can be understood as requiring transmittal of the IAEA-Iran deal. First, Congress clearly understood that IAEA was not some random third-party, but a crucial part of the implementation of the deal. Its crucial role at “ensuring access” to Iranian sites is mentioned several times, and the terms of the access are in part set forth in the IAEA arrangements.
As Rep. Ted Duetch put it in arguing for passage of Corker-Cardin: “I want details on conditions for sanctions relief and access to military sites and unannounced inspections, and you should, too.” This is exactly the kind of thing that might be found in the withheld materials.
Is the transfer requirement constitutional?
Jack Goldsmith agrees that it is quite plausible that the IAEA documents are covered by the statute, and that sanctions relief depends on their transmittal. However, he suggests it might be unconstitutional for Congress to “force” the president to produce such documents, because they are classified, or because it might require diplomatic or other efforts to secure them.
Regardless of the abstract merit of these constitutional arguments, they do not fit the facts of Corker-Cardin: the law does not “force” or “compel” the president to produce any documents. Rather, it simply provides that the production of these documents triggers the “review period,” at the end of which, sanctions relief is possible. The president does not have to transfer the documents; there is no effort to penalize the Executive.
The only reason the president can waive sanctions is because Congress has authorized it. Corker-Cardin modifies and narrows that authorization by conditioning it on congressional review of the entire Iran deal. That is not forcing the President to provide the relevant documents. Rather, it is delegating to him the power to waive sanctions, provided he allow for congressional review of the deal. (Thus Goldsmith’s citation to OLC opinions about statutes that explicitly “require” executive reporting are inapposite.)
Corker-Cardin does not require the president to transmit anything to Congress. Rather, it provides that sanctions will be in place unless and until the president transmits the necessary documents for meaningful congressional review. Since sanctions are fundamentally in Congress’s exclusive Art. I power, they can certainly narrow the scope of their delegation in this way.
Goldsmith argues that Zivotofsky v. Clinton helps presidential power in here, but the opposite is the case. Zivotosfky focused on what the Court regarded as exclusive Art. II powers. But the power of foreign commerce – the only clearly underpinning the sanctions – is clearly a core Art. I power, at the heart of Congress’s legislative authority. On foreign commerce, Zivotofsky suggests Congress wins separation of powers disputes, and the mere fact that they concern foreign policy won’t help the Executive, as that will typically be the case in foreign commerce legislation.
Indeed, the Solicitor General conceded in oral arguments in Zivotofsky that Congress could legitimately legislate economic sanctions against the foreign policy of the Executive, indeed, even if it would seriously interfere with his foreign diplomatic efforts. (Tr. at. 27-28.) Perhaps the Administration can walk that back in litigation over Corker-Cardin, but it is an unenviable position to be in. (That does not mean that Goldsmith is wrong about his “realist” prediction that the Judiciary would ultimately find a way to give deference to the Executive. Yet as an equally “realist” matter, a credible legal challenge to the Iran deal has substantial value to opponents even absent a high chance of ultimate victory.)
Indeed, it would raise massive Art. I powers if Congress cannot condition delegations of Foreign Commerce and Tariff powers on executive actions that allow for meaningful congressional monitoring and review of the delegation and its ongoing wisdom. Congress is not imposing conditions on the Executive’s exercise of his powers, but on its exercise of its own powers. A contrary holding would mean that the president can sever delegated powers from the conditions of Congress’s delegation, even for explicit Art. I, section 8 powers.
Congressional Standing
The legislative history provides some support to my characterization of the constitutional nature of the injury suffered by Congress – nullification of their ability to vote. As Rep. Sherman explained about the bill: “this bill gives us the chance to have the vote.” Precluding that chance sounds like “vote nullification” as required by the Supreme Court for legislative standing.
Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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