Executive Discretion and the Iran Deal

At The Cipher Brief, Robert Eatinger: Can Trump Legally Withdraw from the Iran Deal?  Short answer: yes.  On the constitutional aspects:

The JCPOA [Joint Comprehensive Plan of Action, i.e., the Iran deal] cannot constitute a treaty of the United States because it has not been presented to the Senate for advice and consent as required in Article II of the Constitution. This is important because the U. S. Supreme Court has not resolved whether the president is empowered unilaterally to withdraw the United States from a treaty that has been ratified by the Senate. The president has the authority to withdraw the United States from an international agreement other than a treaty unless a Federal statute provides otherwise. [ed.: well, there might be more to be said if it were a congressional-executive agreement, but it isn’t].

Both the Obama and Trump Administrations have taken the position that the JCPOA is not an international agreement other than a treaty. In a November 19, 2015, letter, the State Department informed then-Representative Mike Pompeo, R-Ks., that the JCPOA “is not a treaty or an executive agreement, and is not a signed document; it reflects political commitments between” the E3/EU +3 and Iran.

In March of this year, Senior Policy Adviser to the Secretary of State, and Director of the Secretary’s Policy Planning Staff, Brian Hook characterized the JCPOA as a sui generis nonproliferation plan of action that’s a political document. As a political document, the president has the authority to withdraw from it.

Agreed.  As to the deal’s status as a political commitment (also known as a nonbinding agreement), and the President’s constitutional authority to make such agreements, see my article here.  As to the President’s power to withdraw, it follows from the argument discussed in the paper noted yesterday.  A presidential policy (which is what the deal is) is just a policy.  It isn’t, and constitutionally cannot be, a law.  That means it did not, and does not have to, go through the procedures required by the Constitution to create law.  In the case of the Iran deal, that means (as the post notes) it did not, and didn’t have to, go through the treatymaking clause of Article II, Section 2 or (depending on what you think of it) approval by Congress through legislation enacted under Article I, Section 7.  That is what makes the Iran deal constitutional (contrary to the arguments of some conservative commentators).  But it’s also what makes the Iran deal weak: it lacks legal force, and so as it could be created by executive discretion, it can be terminated by executive discretion.  And the exercise of that executive discretion isn’t judicially revieweable.

An aside: the post also analyzes the statutory and international law aspects of termination well.  As I’ve said before, one of the benefits of overseeing the Originalism Blog is the opportunity to encounter other blogs and sites I hadn’t been aware of.  The Cipher Brief does a great job on the Iran deal issue.  Here’s their self-description:

The Cipher Brief is a digital, security-based conversation platform that connects the private sector with the world`s leading security experts. We deliver a relevant analysis of news and events that helps readers accurately anticipate and safely navigate the complex, unstable, global security environment. The Cipher Brief was founded by former CNN Intelligence Correspondent Suzanne Kelly on the belief that reporting on the latest security breaches or global security issues alone won`t always help find solutions to the bigger problems. Engaging the private sector in a solutions-based conversation is what moves the ball down the field.

NOTEThis 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.

About Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.

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