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Executive Usurpation and the Iran Deal

Most of the commentary on the Iran deal has focused on whether it is desirable or not – more particularly, whether this obviously imperfect deal is better than the alternative.  While I don’t have expertise in these matters, my view for what it is worth is that the deal is a bad one that could turn out to be disastrous.  We would be better off doing all we can to maintain the existing sanctions regime than signing on to this seriously problematic deal.

But the badness of this deal is not the focus of this post.  Instead, it is that this deal represents yet another example of President Obama violating the law to pursue his objectives — objectives which could not lawfully be enacted.  And this deal may represent the single worst policy outcome of all of Obama’s illegalities.

Mike Ramsey has set forth the case that the Iranian deal is unconstitutional both under the original meaning and under modern law.  Under the original meaning, the Constitution’s provides the way to make major international agreements – through supermajority approval in the Senate, as set forth in Article II, Section 2.  Moreover:

Making major international agreements in the way the text prescribes is not just an eighteenth-century relic; it is the usual course for the United States today (subject to some exceptions noted below).  And the usual course is that if an agreement cannot get two-thirds approval in the Senate, there is no agreement.

What then are the possible justifications for it?  First, the “deal is an executive agreement, done on the President’s independent authority.”  But under the original meaning, there is a strong argument that executive agreements must relate to temporary and minor matters.  Moreover, a similar result obtains under modern law:

the agreements made by prior Presidents under this power have been minor and typically limited to settlements of claims, arrangement of military affairs, diplomatic recognition, and other matters within the President’s military and recognition powers.  No President has ever made a long-term arms control agreement on his own authority.

Second, “The deal is a nonbinding “political commitment” rather than a treaty.  Ramsey claims such nonbinding actions are legitimate under both the original meaning and modern law.  But the Iran deal:

doesn’t look like a nonbinding agreement.  Iran appears to understand it as a binding agreement.  And at least some of its terms appear to (purportedly) constrain U.S. action in the future, beyond the end of President Obama’s term.  It’s likely that a vocal defense of the agreement as nonbinding would substantially undermine the deal.

Finally, Congress will approve the deal.  While the original meaning does not allow a majority of each house of Congress to approve a treaty, in modern times sometimes Congress has done so.  But Congress is very unlikely to approve the deal.

Not only is the deal unconstitutional, its unconstitutionality is essential to it occurring.  If the President had to secure two thirds of the Senate or a majority of both houses, this deal almost certainly would not be approved.

Thus, once again, this President is taking illegal action to make an end run around the Congress to do things that are extremely problematic.  But this time, I fear, the consequences of his action may be worse than in the other cases.  The Iran deal is dangerous.

And the more the President does these things, the more precedent there is for future Presidents to take similar actions.  President George W. Bush took some actions that were questionable on constitutional grounds, and perhaps those were precedents for what Obama has done (although at least Bush always got authorization for his wars).  But I fear for the future.  We are becoming a country of executive’s taking and getting away with illegal actions, and that is not a safe course for the long run liberty and welfare of a country.

Reader Discussion

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on July 20, 2015 at 10:49:04 am

Mike:

All you say is true - BUT let's not let the Congress off the hook. The Congress was NOT required to go along with the charade of the Corker(?) bill which effectively ceded Congressional power over this *treaty* to the Executive.
It appears that not only the Executive lacks a respect for the Constitution - the Legislative is also missing it.

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Image of gabe
gabe
on July 20, 2015 at 23:08:40 pm

[…] Mike Rappaport not only thinks the Iranian nuclear deal is a bad one, but executive usurpation of the Senate’s treaty power is even worse: […]

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Image of Links for 7-20-2015 | Karl Heubaum
Links for 7-20-2015 | Karl Heubaum
on July 21, 2015 at 08:51:45 am

[…] Executive Usurpation and the Iran Deal […]

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Image of Atticus Finch’s American Stoicism - Freedom's Floodgates
Atticus Finch’s American Stoicism - Freedom's Floodgates
on July 21, 2015 at 12:15:47 pm

I doubt other presidents took such a cavalier attitude to their office and the Constitution, even allowing for FDR who was no blushing violet, but neither did FDR enter into agreements, treaties it seems are ignored, with blatant terrorists states. Assuredly more to come.

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john trainor
on July 21, 2015 at 12:55:51 pm

I used to keep track of all of Obama’s nonsense on a personal blog. I argued then (and still do) that he is the most impeachable President ever. I came up on Page One of google search results a lot when someone typed in “impeach obama”. It was a nice substantive blog.

That fact that Obama was not only not impeached early on, but was reelected to a second term really got me wondering what is wrong with the American system of government, literally, not rhetorically.

If I were still keeping track, this would be just one more entry in the long, long train of abuses and usurpations of Obama. The problems seems to be more than the mentality of one political extremist and his associates. It seems to be a bug in the design of our experimental system of government in general. The system was meant to be self-correcting, but that isn't happening. Why?

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Scott Amorian
on July 21, 2015 at 14:42:00 pm

Good questions!

To borrow from R. Richard, it may be because many of the subjects of this regime believe that they are getting something out of it, be it financial, emotional, ideological (a definite yes for many) or remediation of a self imposed / induced guilt!

As for the GOP, I have concluded that they are hopeless and have bought into the whole charade. Power corrupts they say, yes; but it does not take absolute power to corrupt absolutely - even small does, such as that enjoyed by the John McCains, John Boehner's, etc. of the world have shown that small, rarely checked power can and WILL corrupt, absolutely!

In any event, we should look to ourselves and not our *political* stars to update an old saying.

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gabe
on July 22, 2015 at 07:45:19 am

I highly recommend everyone, and especially the author of this article to watch the BBC series Iran & the West from 2009 (which can be found on youtube).

The series made me look different to the representation of the Iran - Irak war and the whole situation in the Middle East. The biggest problem is clearly US foreign politics, and mostly exposed by the US ministers in their own words when explaining what they did and thought. The only reason: to keep 'things under control' and be a dominant force on a global scale. Whereas the strenght and attractiveness of the US was (before both World Wars) the attitude of not mingling with politics outside of the own borders. It's this hunger for power that slowly corrupts to higher levels from outward to inward.

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Rogier
on September 16, 2015 at 14:26:31 pm

[…] http://www2.ljworld.com/news/2015/aug/08/opinion-information-shifts-opinion-iran-deal/ http://www.libertylawsite.org/2015/07/20/executive-usurpation-and-the-iran-deal/ […]

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Image of Legal arguments for and against the “Iran deal” (of 2015); my own argument | Richard Alexander Hall
Legal arguments for and against the “Iran deal” (of 2015); my own argument | Richard Alexander Hall

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.