On Thursday, Senate Democrats blocked cloture on debate over the resolution to disapprove the non-deal Iran “deal,” or JCPOA (Joint Comprehensive Plan of Action).
The Senate is effectively hamstrung. As of now, no Senate vote is foreseeable on the disapproval resolution. The mainstream media are visibly crowing over this as a big win for Obama.
Republican leader Mitch McConnell has vowed to push for a vote again next week. But there’s no reason at this point to think the outcome will be any different. Obama has the votes to prevent cloture in the Senate; he needs 41 and has 42. The vote on the disapproval resolution itself doesn’t look like it will be happening.
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(McConnell could invoke the so-called “nuclear option,” and have a simple majority of Republicans change the rule for cloture on this one cloture vote. In that case, he could reach cloture with a simple majority, instead of needing 60 votes to force a floor vote on the disapproval resolution. McConnell has consistently deflected calls for that tactic, however.)
A legal option?
But what if that were a good thing? What if, as Lori Lowenthal Marcus outlines, Congress could stall the entire process with a lawsuit arguing that the 60-day clock for Congress to deliberate on the JCPOA never started – because Obama failed to provide all of the relevant documents on the JCPOA’s implementation?
That possibility is what has been opened up by the ruling of the Federal District Court of Washington, D.C. on 8 September, in the Obamacare-related case of U.S. House of Representatives v. Burwell.
The applicable finding in the case is that the House of Representatives has standing to sue the executive branch over a failure to properly execute the law.
As this Wall Street Journal op-ed notes, there has been no ruling yet on the merits of House v. Burwell. But the ruling that the House has standing to bring the suit is more than a key separation-of-powers victory for John Boehner on Obamacare. It also means the House has standing to get other, similar suits into court.
Eugene Volokh posted an analysis on Thursday arguing that the House would have standing to sue over Obama’s failure of performance under the Corker-Cardin legislation passed earlier this year, which became law as the Iran Nuclear Agreement Review Act (INARA). Here’s Volokh’s central proposal:
The constitutional argument would focus on the non-transmission of documents required under the Iran Nuclear Agreement Review Act of 2015 (the Corker-Cardin deal), which would seem to satisfy the standing test established by the district court.
The “non-transmission of documents” refers, of course, to Obama’s failure to provide (at a minimum) the unpublished “side agreements” by which the IAEA will administer the JCPOA with Iran.
And Volokh’s treatment points out that Congress actually needs to refrain from voting on a disapproval resolution — i.e., in the Senate, remain stymied by the Democrats — in order to establish grounds for the lawsuit.
The proposal based on Volokh’s reasoning differs in a key way from Andrew McCarthy’s. McCarthy suggested last weekend that Congress resolve that the 60-day clock hadn’t started, and no vote could he held until it had. Unfortunately, in the absence of a legal challenge, refusing to start the clock means in effect that Obama could – under the provisions of INARA – act without Congress. He could proceed with his JCPOA promise to begin waiving sanctions as early as December. Nothing would stop him.
(McCarthy took that into account, and emphasized that Congress should reaffirm that the existing sanctions are still U.S. law, and the next president can, in fact, “snap them back.”)
Under the proposal forming around Volokh’s (and David Rivkin’s) analysis, the House of Representative would actually sue Obama over his failure to provide all the documents, on the basis that Congress has thereby been denied the ability to act, as INARA specifies – and in accordance with Congress’s Article I responsibilities – on the JCPOA.
Delay – enjoin? – Obama’s waiver of sanctions
This proposal is the most concrete idea to date that has a hope of delaying the next (and most important) step in Obama’s surrender to Iran: the waiving of sanctions. As I’ve mentioned several times before, Obama could begin doing that as early as December, which is when IAEA expects to report on Iran’s compliance with the preliminary requirements to implement the JCPOA.
Some things are unclear at this point, such as whether the House must bring such a lawsuit as a chamber – which is how it was done in House v. Burwell – or if individual members of Congress would have standing to bring suit.
It would be better, of course, for the charge to be led by the House leadership, as Boehner did in House v. Burwell. But if he doesn’t lead that charge, the question whether it’s still an option for individual members ought to be answered.
In any case, legal-activist sources have told me that there’s an effort underway to get a relevant House committee (e.g., Foreign Affairs) to subpoena the side agreements to the JCPOA. Although that’s a separate action from bringing the lawsuit for failure to perform under INARA, it would appear to serve as a worthwhile – and potentially time-consuming – first step in pursuing legal options. Assuming the Obama administration did not comply, it could establish a firm basis for suing over non-performance under the INARA legislation.
I believe that for maximum effectiveness, the point of such a suit would have to be pursuing an injunction against any sanctions waivers by the Obama administration, until the underlying issue – non-performance under the terms of INARA – was adjusted.
The basis for this would be the terms of INARA, which link Obama’s authority to waive sanctions to Congress’s actions, or lack of them, within the 60-day review window. Eugene Volokh lays out the problem for Obama if the 60-day window didn’t start:
Assume the President proceeds, purporting to have satisfied Corker-Cardin, to waive and suspend sanctions under preexisting authorities. But since Congress’s vote was not within the “period of review,” which had not started, the entire exercise will be with no legal effect. Corker-Cardin’s freezing of the president’s sanctions suspension authority will still be in effect. Indeed, it will be in effect indefinitely.
Forcing Obama to behave as if the freeze on his authority is in effect will require more than simply advising him of that condition. He has shown us that repeatedly. It wouldn’t be enough to simply embarrass Obama with a lawsuit, or a ruling on a preliminary matter, such as the plaintiff’s standing to bring the suit. I don’t think this lawsuit proposal gets the job done unless there’s an actual injunction that Obama would have to defy in order to issue waivers.
Even that may not be enough. And there’s no guarantee that such an injunction could be obtained. It’s not even clear to me that seeking one is part of any plan that’s being formed.
But the House v. Burwell ruling on standing this week has opened the door to the hardest ball anyone has yet proposed to play against the execrable Iran “agreement.”
Blocking the waivers: a possibility?
A good starting place for my final point here is Charles Krauthammer’s declaration on sanctions waivers, during the panel segment of Fox News’s Special Report on Wednesday, after the Stop Iran rally outside the Capitol (start around the 4:20 mark).
I agree with Krauthammer, and have from the beginning, that Obama will ignore Congress and issue waivers, as he has promised to do in the JCPOA language, pretty much no matter what Congress does. The level of categorical determination Krauthammer outlines is the measure of the challenge we face. Obama won’t be stopped by polls, unfavorable editorials, or impassioned speeches in the halls of Congress.
But the lawsuit option could bring the judiciary into the fray on the side of due process. That would actually create a situation different from the one Krauthammer was addressing on Wednesday. His points were valid for a Congress-only effort to block the waivers.
The lawsuit proposal holds out the hope of two branches of the government standing together against the third – at least on the point regarding whether INARA’s terms have been fulfilled sufficiently for Obama to issue waivers.
Averting implementation of the JCPOA is the difference between having the basis for global stability and peace, and not having it. That’s the stark reality we face. It’s possible, of course, that Obama would ignore even a federal court’s injunction, as he has done in the matter of immigration enforcement. But if nothing else, a clear statement of legislative-judicial concurrence on what he was doing wrong would isolate and highlight his lawlessness.
We don’t actually know what would make Obama back down, because Congress has yet to stand up to him. If ever there were a time to pull out all the stops and pursue every option, even untested ones, that time is now.
