Monday, September 14, 2015

The Non-Trivial But Probably Losing Argument That The Iran Review Act Bars The President from Lifting U.S. Sanctions Against Iran
By Jack Goldsmith Monday, September 14, 2015
Several people (including Senator Cruz, Eugene Kontorovich, Mike Pompeo and David Rivkin, and a majority of the members of the House of Representatives) have argued that the Iran Review Act bars the President from lifting U.S. sanctions against Iran.  This argument is stronger than I first thought.  But I think it ultimately fails.  Below I set forth the arguments as I see them and sketch some of the legal and practical hurdles to their ultimate success.  (This is my first run at this issue; the arguments are surely more complex than even my complex and lengthy presentation here suggests.)
1.         Does the President Have a Statutory Duty to Transmit the IAEA Side Deals?
This is the key question. 
Section (a) of the Iran Review Act requires the President to “transmit to the appropriate congressional committees and leadership … the agreement [with Iran], as defined in subsection (h)(1), including all related materials and annexes.”  Subsection (h)(1), in turn, provides:
The term ‘agreement’ means an agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action, regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.
This definition includes the Joint Comprehensive Plan of Action (JCPOA, the main deal) plus “any additional materials related thereto, including … side agreements.”  At first glance the definition appears to include the side-deals between the IAEA and Iran that concern verification of the JCPOA and military dimensions of Iran’s nuclear weapons program.  These deals are side-agreements to the JCPOA, and they clearly relate to it.  However, as Rob Howse notes, the definition is limited at the beginning of Subsection (h)(1) to an agreement that “includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action.”  The IAEA side deals with Iran are not ones that include the United States or that commit it to take action. Thus, Howse concludes, the President has no duty to transmit them.
That is a convincing point as far as it goes.  But there is a different argument for requiring the President to transmit the IAEA side deals that I have not yet seen made and that avoids the Howse rejoinder.  That argument is that subsection (h)(1) (including the limiting definition that Howse notes) applies to and defines only the term “agreement” in Section (a).  The clause in Section (a) that is set off by commas suggests that the definition in (h)(1) interprets only the term “agreement,” and that the phrase “all related materials and annexes” forms a separate part of the President’s obligation under Section (a) that is not specifically defined in subsection (h)(1).  (If the definition in (h)(1) were meant to apply to “related materials and annexes,” it would read: “the agreement, including all related materials and annexes, as defined in subsection (h)(1).")  I thus think it is at least plausible to read Section (a) to mean that the President must disclose the agreement and related materials that commit the United States, plus all related materials and annexes beyond the ones that commit the United States, which might include the IAEA side agreements.  Congress might well have wanted to define the agreement that commits the United States very broadly (as the definition does) but also include the undefined “related materials and annexes” beyond the ones that commit the United States in the President’s duty to transmit.    
Complicating this reasoning, however, is the term “including” in Section (a).  This term most naturally suggests that the “related materials and annexes” form a subset of the defined term “agreement,” which would exclude the side deals because they do not commit the United States.  This appears to be the sense in which “including” is used in at least many other parts of the Review Act.  The main problem with this reading of “including” in Section (a), however, is that it makes the phrase “related materials and annexes” redundant, since the term “agreement” is defined to include related materials and annexes.  Interpretations that render statutory words superfluous are (all things equal) disfavored.  By contrast to the inclusive sense of “including,” one could read “including” to be additive in the sense of making the related materials and annexes (beyond the agreement and related materials that concern the U.S. commitment) part of the President’s obligation to transmit.  This reading has the virtue of avoiding the redundancy and giving independent meaning to the words “related materials and annexes.”  But while it is an acceptable interpretation of “including,” it is not the favored one, I think.    
For all of these reasons, I think there is a plausible but not obviously winning argument that the plain terms of the Review Act require the President to transmit the IAEA side deals to Congress.  The President claims that he does not possess the side deals to disclose.  That makes it hard for him to comply with the statute, and impossible to comply if he has no chance of obtaining the side deals.  But such an impossibility now should not by itself affect the best reading of what Congress demanded in May when it enacted the Iran Review Act.  (It might, however, affect how courts view the matter, as I discuss below.)
2.         The Consequences of the President’s Failure to Transmit the IAEA Side Deals
A decent but again not clinching case can be made that the consequence of failure to transmit the side IAEA deals is that the President cannot yet lift the Iran sanctions.  
Section (b)(3) of the Act provides:  “Prior to and during the period for transmission of an agreement in subsection (a)(1), … the President may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of law or refrain from applying any such sanctions pursuant to an agreement described in subsection (a).”  The argument against the President is that because he has not yet transmitted the (entire) agreement (i.e. the IAEA side deals) to Congress, the review period has not begun to run and the President thus “may not waive,” etc., the statutory sanctions against Iran.  
The argument is not airtight.  It depends on whether we are still “prior to and during the period for transmission of the agreement.”  The plain text of the Review Act suggests that we are beyond that period because the President had a duty to under Section (a) to transmit the agreement and all related materials and annexes within five days after the agreement was reached.  The time frame prior to and during the period for transmission began and ended in July.  Thus, the argument for the President goes, the sixty-day clock for Congress’s review period began to run in July (just as Congress appeared to assume at the time and until very recently).   The counterargument is that the President cannot be relieved of the statutory ban on lifting sanctions by defying the deadline for submitting the agreement.  No one would accept that the President could have avoided the statutory duty to maintain sanctions by simply not submitting the JCPOA; the same reasoning applies to the side agreements if they are “related materials” under Section (a).  This argument, however, lacks an obvious textual basis, and one might think that if Congress gets the advantage of the plain text for the argument about the President’s duty to transmit, it must suffer the disadvantage of the plain text for the consequences of the President’s failure to transmit.  Also cutting against the argument that the review period has not yet begun to run is the fact that until very recently Congress acted as if the period of review had begun to run.   
3.         Who Wins in Litigation?
I am sure there are other arguments for and against both the President’s duty to transmit the IAEA side agreements and the President’s authority to waive sanctions if he failed to satisfy a statutory duty to transmit.  But let’s assume that the argument against the President succeeds to the extent that a plausible textual case has been made that the Iran Review Act prohibits the President from waiving the sanctions because he has not yet submitted materials related to the agreement and thus the period of congressional review has not yet started to run.  What then?    
There is talk of Congress suing the President.  But in litigation, Congress faces many hurdles to success beyond what a naked reading of the statute suggests.
Standing.  Eugene Kontorovich covered this issue last week.  I am more skeptical than he is about Congress's standing to sue the President over his arguable failure to follow the law.  I doubt that what happened here rises to the level of “vote nullification” required by Raines v. Byrd, though the case for standing would be strengthened if one or both of the chambers of Congress authorizes the suit.  I disagree with Eugene that the recent decision in House of Representatives v. Burwell helps here.  There the court recognized congressional standing to redress a clear presidential usurpation of Congress's constituional power over the purse .  But it held that the House lacked standing to argue (as would be the case in Review Act litigation) that the President has misinterpreted or disregarded the law in execution.  As the court said:
If [such an argument] were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit.  Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against “the specter of ‘general legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or the Constitution.”
While I don't think Congress will have standing, I agree with Eugene that if a State is sued over its continuing sanctions against Iran, the merits of the President’s waiver might be litigated.  But many powerful theories of preemption would be in play against the State arguments.
Article II.  If the litigation reaches the merits the President will likely make a number of constitutional arguments about Congress intruding on his Article II powers.  One argument might be that the requirement that he submit the side deal is unconstitutional because the President cannot be forced to submit sensitive information that he believes would jeopardize national security.  Last month the Justice Department released a 2003 OLC memo that made an argument of this sort in the similar context of not providing Congress with information related to WMD.  The argument in the memo is a full-throated defense of presidential prerogative that was typical of the period, but a form of the argument has a pedigree that goes back through recent administrations, back to the Iran Contra imbroglio, and back yet further as to Washington’s refusal to turn over information about the Jay treaty to the House of representatives.  (Marcy Wheeler first noted the connection between the OLC memo and the Iran matter.) 
I expect that the administration would argue that the requirement to turn over a secret side deal that it did not negotiate or possess but that is crucial to the success of an important nuclear arms control agreement is unconstitutional.  At a minimum, and more likely, I think it would argue that the possibility of unconstitutionality is a reason not to read the (ambiguous) statute to demand such information.  Relatedly, it might also argue (relying on arguments found in OLC opinions like this one) that the congressional demand for information related to the agreement that the President does not possess unconstitutionally compels the President to engage in diplomatic activity to, among other things, seek and obtain the agreement.  I expect it would also argue, at least under constitutional avoidance, that reading the Review Act to require transmission of the IAEA side deals would (in the words of Zivotofsky II) constitute a “congressional command [that] would … prevent the Nation from speaking with one voice [and] also prevent the Executive itself from doing so in conducting foreign relations.” 
I lack time now assess these arguments on the merits.  But I do think that arguments of this sort will have special salience—less perhaps for their legal merits than as reasons that judges might latch on to in order to avoid ruling against the President in this very high stakes diplomatic context.  Cf. Zivotofsky II.  Which leads to the final point … 
Deference, De Jure and De Facto.  If the case reaches the merits the President will argue for deference in the matter – in interpreting the statute, and in assessing the impact of a presidential loss on foreign relations.  Much more important than the formal legal arguments for deference is that it is highly unlikely that a court, especially an appellate court, and almost certainly the Supreme Court, is going to find the statutory arguments here compelling enough to issue an injunction (or some other form of relief) that would prevent the President from waiving sanctions and thus possibly blow up the Iran Deal.  The courts are not, on the basis of the statutory arguments sketched above, going to unwind the Iran Deal that Congress could not unwind on its own, especially since Congress acted for so long as if the review period had been triggered.  Whether courts get to that conclusion through statutory interpretation (including constitutional avoidance and executive deference) or through standing or some other justiciability gambit, they will get there.  Of that I am more confident than anything I have said to this point. 
PS: I cannot resist a friendly poke at Andy McCarthy, who was a critic of the Iran Review Act (and before that an opponent of congressional restrictions on presidential waivers of sanctions), but who is now a champion of the argument that the Iran Review Act bars the President from waiving sanctions.  Andy continues to claim that the JCPOA’s opponents would have been better off without the Review Act.  But the clear fact is that without the Act, Obama would have ignored Congress altogether and already exercised his preexisting statutory authority to lift the Iran sanctions.  (As I have explained before, the idea that the Congress or Senate could have forced the President to submit the JCPOA for approval as a treaty or congressional-executive agreement is a fantasy.)  In any event, I am glad that Andy is now supportive, at least in part, of the Iran Review Act, which I doubt will stop the President from lifting sanctions, but which has forced the President to disclose a lot, which has sparked very important public deliberation, and which has resulted in members of Congress being on record and ACCOUNTABLE for the subsequent success or failure of the JCPOA.   

  • Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, a Senior Fellow at the Hoover Institution at Stanford University, and co-founder of He teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and conflict of laws. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003. 

Published by the Lawfare Institute in Cooperation With