John Yoo:
Conservatives have much to criticize in President Obama’s deal with Iran on its nuclear program. The agreement allows Iran to operate sophisticated nuclear equipment, keep its suspected weapons labs open, and maintain stockpiles of nuclear material with ample opportunity to manipulate international inspectors. Washington and its allies must lift crippling sanctions and release $150 billion in frozen assets now, while hoping that Iran will refrain from developing an atomic bomb for the next decade.
Some conservatives may argue that Obama is violating the law, too. The Treaty Clause declares that the president “shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.” Instead of following this process, set out in Article II, Section 2, of the Constitution, President Obama plans to codify the deal as an executive agreement without the Senate’s supermajority approval. The Iran deal appears to run counter to decades of practice by the elected branches, which have used the Treaty Clause to make almost every significant arms-control agreement, such as the Test Ban Treaty, Anti-Ballistic Missile Treaty, the INF, and the START and New START pacts.
But critics of the Iran deal should save their strength when it comes to the Constitution. Last spring, Republicans in Congress created a process to review the agreement by majority vote. If Congress disapproves the deal, President Obama can still veto the resolution. In other words, two-thirds of the House and Senate will have to agree to stop the Iran deal — a bizarre inversion of the Treaty Clause.
Congressional Republicans may have scored a political victory by putting every Senate Democrat on the record on the Iran deal, but they have also inadvertently bolstered the deal’s legality. In foreign affairs, as the Supreme Court has observed, the president acts at the height of his constitutional powers when backed up by Congress. In Youngstown Sheet & Tube v. Sawyer, which blocked President Truman’s seizure of the nation’s steel mills during the Korean War, Justice Robert Jackson famously observed: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” While only a concurrence (and one I tend to disagree with as a misreading of the separation of powers), Jackson’s approach has found its way into the justices’ majority opinions in recent foreign-affairs cases.
In providing a legal basis for the Iran deal, congressional Republicans have only themselves to blame. Nevertheless, conservatives are weighing legal challenges in court. This would be a waste of valuable resources.
First, a lawsuit would ask courts to stretch their jurisdiction beyond their proper scope. It is unlikely that such a challenge would arise from a plaintiff with standing — the requirement that the person who brings suit has suffered a discrete injury directly traceable to the government action. Simply claiming that the United States or the Constitution has suffered harm is not enough to walk into federal court. Conservatives have struggled for a generation to rein in judges who use flimsy lawsuits as an excuse to engage in policymaking and social engineering. To manufacture standing to bring a political dispute into court would descend to the level of liberal judicial activists who continue to use the judiciary to invent new rights and interfere with the proper balance of powers between the branches of government. The courts will probably turn away such a challenge, and they should.
Second, a lawsuit would foist an unduly narrow reading of the Treaty Clause on the nation’s foreign affairs. Not all international agreements must take the form of Article II treaties. Congress enacts some pacts — such as NAFTA, WTO, and the coming Trans-Pacific Partnership — as regular statutes through simple majority votes in Congress. Presidents have reached some agreements unilaterally, such as FDR’s recognition of the Soviet Union and Jimmy Carter’s deal to free the Iranian hostages.
The line between international agreements that must take the treaty form and those that need not remains obscure (for my own effort at explaining the difference, see my article “Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements” in Michigan Law Review in 2000). I think that Congress can use laws in some areas, such as economic sanctions and trade, to make agreements because they fall within Congress’s exclusive authority under the Commerce Clause. Agreements that pose serious limits on the United States’ sovereignty and that make long-lasting military and security commitments, such as peace treaties and alliances, must take the form of treaties. Difficulty in finding the line between the two does not mean that the line is not there; nor does it mean that critics are right that the federal government can make international agreements only through the Treaty Clause.
