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A Sanctions Shell Game

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There “is a role for Congress,” says a spokeswoman for the White House’s National Security Council, “in our Iran policy.” This is big of her, seeing as how “our” Iran policy consists largely of sanctions imposed by the legislative authority of Congress.

A great deal hangs on the spokeswoman’s cavalier use of the word “our.” The suggestion is that the nation’s disposition toward other nations is a constitutional plaything, belonging solely to “us,” which is to say to the executive, and to be shared at “our” discretion. Imagine a comparable audacity—or is it to be called magnanimity?—from a congressional spokesperson: “There is a role for the President to play in our lawmaking.” 

Presidents, in possession of the relevant toys and therefore nine-tenths of the constitutional law, prefer the NSC spokeswoman’s understanding. In reality, ownership of foreign policy is, like most constitutional objects, shared—especially where it involves the explicit exercise of Congress’ legislative authority.

Congress has repeatedly chosen to assert itself in foreign policy by directing the President to impose sanctions on Iran. In the event a satisfactory multilateral deal is reached with Tehran, the administration has reportedly concluded that, while it lacks the authority to cancel these sanctions, it can put them on hold.

The grounds for this reasoning are unclear, as the analysis remains secret. But barring some technical loophole they are claiming under cover of classification, it is difficult to see it having any basis other than the executive’s discretion not to enforce the law—the same reasoning as was employed in the alteration of healthcare laws, the threat of executive amnesty, inter alia—amped up on a narcissistic conception of the President’s foreign policy authority, which, incidentally, exists nowhere in the Constitution.

To be sure, the claim of presidential ownership of foreign policy bears a distinguished pedigree: the Hamiltonian one. The problem is that it also bears distinguished scars: the Hamiltonian ones. The same Alexander Hamilton who pseudonymously invested the President with this power as “Pacificus” and denied it to him as “Publius.”

As Pacificus, Hamilton, debating James Madison’s “Helvidius,” defended President Washington’s unilateral authority to declare American neutrality in the European wars sparked by the French Revolution. In Pacificus I, Hamilton says the power of declaring the United States’ disposition toward other nations is not legislative, it is not judicial, and consequently it must be executive. This constitutional shell game—the ball isn’t under here, nor is it under here, so place your bets, it must be under here—of course depends a great deal on the sequence in which it unfolds, and the terms Hamilton uses exclude the more logical inference: that since the power is not obviously assigned to one branch, it is shared between them.

The alternative is reading this broad power into the meaning of the word “executive,” a method rife with problems. Two of them have to do with inconsistency: Presidents have tended to resist investing such meaning in the word “judicial” when “the judicial power” of Article III is used to constrain their authority. Also, this heavy weighting of the meaning of “executive” sounds much like—indeed, is—British prerogative. A scant five years earlier, Hamilton, as one of the authors of The Federalist, had assured a nation contemplating the Constitution that no such plan was afoot.

Indeed, the Founders explicitly broke with Lockean and Blackstonean prerogative. Virtually the only references to it in The Federalist are critical. Hamilton’s Federalist 26, for example, says British constitutional history is one of gradual parliamentary “inroads” on prerogative that triumphed in the Glorious Revolution, an instance if ever there was one of legislative supremacy over the executive.

Moreover, Hamilton’s forgotten Federalist 69, sandwiched between the oft-quoted calls for executive firmness and energy in 68 and 70, says that the executive authority to receive ambassadors—from which Hamilton as Pacificus derived a general executive power to recognize governments—is “more a matter of dignity than of authority,” one “without consequence in the administration of the government.”

The doctrine of presidential supremacy in foreign affairs received its most famous expression from the then-Representative from Virginia, John Marshall, who called the executive the “sole organ of the nation in its external relations,” a phrase the Supreme Court much later erroneously invoked to proclaim plenary executive authority on the topic. But as the indomitable Louis Fisher has argued, Marshall merely claimed that the President was sole authority in the execution, not the making, of treaties—which is all that can be lexically wrung from the word “executive” to start with.

Treaties, of course, are anachronisms now. We make executive agreements instead, and dispense with such constitutional nuisances as Senate ratification, which was once good enough for Woodrow Wilson even though it scuttled the League of Nations, but is nowadays too inconvenient for, say, intellectual property theft.

The problem is that sometimes these agreements involve legislation. Congress decided early on, following Madison’s intellectual leadership, that the House of Representatives would retain its authority even when Senate-ratified treaties required funds or enabling legislation; all the more so, one would think, where the Senate’s unique authorities are not even involved.

And this brings us to the subject of Iran. No one doubts the President ought to be the “sole organ” of the nation in negotiations, in which the vaunted “secrecy and despatch” of Federalist 70—copping a phrase, by the way, from Federalist 64, which referred quite obviously to the negotiation of treaties reviewable by the Senate—is necessary. But the President does not have the power thereby to supersede laws passed by the Congress.

The White House, making a distinction without even the comical wisp of a difference, says the President in this case is merely going to suspend the operation of the sanctions without terminating them. In setting this precedent, the administration seems once more to have forgotten that some day a Republican President may take office. Suppose he negotiates a trade agreement that entails an equalizing of labor standards. Could that President “suspend” the operation of ours provided that Congress is—no, really—assured it will be consulted before the standards are “ultimately” terminated?

Such would be absurd, as would be any number of comparable scenarios: the President “suspending” enforcement of the minimum wage on the grounds that suspension was not tantamount to termination, and so forth. There is simply no constitutional reason that Congress’ power to make a law in this case should be hindered simply because it pertains to matters foreign as well as domestic—topics that, it might be noted, are getting increasingly difficult to separate.

That the sanctions involved in the Iran deal passed the Congress nearly unanimously ought to strengthen the institution’s resolve. Not that it’s known these days for its resolve. The main point is that law is law, whether it squeaks or sails by.

Will the Congress stand up? Were the trespass in the other direction, one can be sure the President—any President—would stand up. Presidents do.

Reader Discussion

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on October 29, 2014 at 11:46:50 am

No, no, no. Weiner acts as if the President had eliminated the sanctions against Iran. He’s just suspending them. It’s like when a flag is thrown during a kick-off: You don’t have to re-do the play; you can assess the penalty relative to where the ball ends up at the end of the play. So here, we’re suspending penalties against Iran while we negotiate our future relationship. Once we normalize our relationship, then we’ll reinstate the sanctions for whatever period they were suspended. See? Weiner got all worked up over nothing….

Ok, seriously, I can’t imagine how the Administration would defend this.

That said, would the President “stand up” to Congress if Congress intruded on Presidential prerogatives? Imagine Congress said, “We’re passing Obamacare, and we don’t care WHAT you say. We have the power to override your veto, so we’re not even going to wait to see what you think; we’re implementing NOW. And when voters get pissed off, we want them to direct all their ire at us! We want everyone to think you had nothing to do with this policy at all.” You think the Administration would sue to stop implementation? Yeah, right.

People love to be free riders, to get the benefits while letting someone else bear the risks. And politicians are no exception. Thus, I expect Congressmen, to the extent they’re paying any attention to this issue at all in the final week of a campaign, are thrilled to see any prospect of progress in reining in Iran’s nuclear program – provided they can distance themselves from the policy if it goes sour. Few Congressmen want to go out on a limb and attack a policy that might rein in Iran’s nuclear program without putting boots on the ground (unless they think they can get some mileage by grandstanding about the evils of talking with people who are less pure than we). If you could get benefits while expending nothing, you’d really refuse to do so on the grounds of principle? If so, that explains why you’ll never be a Congressman.

Bottom line: NOBODY beyond this web page gives a rat’s ass about the abstract principle of presidential overreach regarding the conduct of foreign policy. Voters don’t vote on the basis of foreign policy. Voters don’t vote on the basis of constitutional structure. The intersection of these two non-issues is the apex of non-issuedom. (TEA Party people will profess that they care deeply about principle – but they also say they care that Obama is a Kenyan, and a Muslim, and a radial Black Christian, and an atheist, and…. In short, they have a conclusion; rationale is optional.)

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nobody.really
on October 29, 2014 at 12:15:14 pm

Ok - except for the following:

"TEA Party people will profess that they care deeply about principle – but they also say they care that Obama is a Kenyan, and a Muslim, and a radial Black Christian, and an atheist, and…. In short, they have a conclusion; rationale is optional."

Creating straw men again, are we? sure there are some knuckleheads who profess to care about such things but:
a) not all so concerned are TP'ers
b) not all TP'ers are so concerned
c) not all those with a conclusion w/o rationale are TP'ers
d) Indeed most of the *c* types are probably Dem / Progressives seeking to justify the disbursement of *other peoples money* into their own little fingers.

Those cast stones do, at times, take peculiar bounces!!!!

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Image of gabe
gabe
on October 29, 2014 at 16:30:35 pm

Having followed the link and read the NYT story in which the NSC spokeswoman is quoted, I am not persuaded we have sufficient context to know just what she meant by the word "our."

I am reminded of Political Scientist Graham Alison's famous essay on the Cuban Missile crisis--just what we are anthropomorphizing matters, analytically speaking. If, for purposes of analytic convenience, we talk about institutions as if they have single discrete agendas, then "our" policy will be that of whichever institution we consider ourselves to be part. So if I am a spokesman for the CIA, "our" policy is that of the CIA. Similarly, if for purposes of analytic convenience we speak of nations as if they have discrete agendas, and I am a Soviet writer, "our" policy is that of the nation as a whole.

I did not think I perceived adequate context to Ms. Meehan's remarks to know to what she was referring, when she used the pronoun "our." The antecedent of the pronoun was not in evidence, and had to be inferred, and, it seems to me, either inference is plausible.

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Image of Kevin R. Hardwick
Kevin R. Hardwick
on February 25, 2015 at 13:11:57 pm

[…] A Sanctions Shell Game […]

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.