Iran nuke capitulation could trigger Constitutional crisis

Should the Senate sue the president to block implementation of the Iran nuke deal, even if the legislative branch triggers a confrontation between the judicial and executive branches? 

The rationales for such litigation have accumulated since I first proposed this approach be studied, with the most unnerving affront to rule-of-law having emerged when, on July 28, Secretary of State Kerry did not reflexively say he would “follow the law” governing existing congressional sanctions if Congress voted to override a veto. (“I can’t begin to answer that at this point without consulting with the president and determining what the circumstances are.”) 

{mosads}A limit to Obama’s lawlessness must definitively be imposed. 

In 1803, the ability of the Supreme Court to exercise “judicial review” was established (Marbury v. Madison) after an earlier secretary of State had unconstitutionally refused to deliver a commission to the newly-appointed Justice of the Peace in the District of Columbia; as per the Constitution (Article III, Section 2, Clause 1), “Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made.” 

This Supremacy Clause has never been challenged during the subsequent two-plus centuries—despite the fact that the Supreme Court commands no enforcement-military—so the remedy for potential lawlessness is unclear; this concern would extend to any nullification effort by the president related to the prospect that the Supreme Court would declare the Iran nuke deal to be a “treaty.” 

In May, I predicted this avenue could arise, while railing against morphing the Corker-Menendez bill into anything resembling the Corker-Cardin bill:  “Concern that a constitutional crisis looms abounds, for any clash of powers of allegedly co-equal branches may ultimately reach the Supreme Court in a fashion comparable to the current litigation promulgated by Speaker John Boehner (R-Ohio) against unilateral Obamacare rule changes by the administration.” 

In July, I amplified upon it after having recognized that the “legislative intent” of the Iran Bill was focused on Iran’s nuclear program, contrasting with the final pact that was expanded to allow lifting of conventional-weapon sanctions. Iran sought–and was granted–this specific concession at the very end of the negotiations (per universal news-reports).  

Most recently, I proposed that a lawsuit must be based upon the administration’s decision to supersede Congress’s “legislative intent” when it passed the Corker-Cardin Bill. This criterion had been determinative when the Supreme Court had validated ObamaCare and, thus, the “deal” must be viewed as a “treaty.” {To eschew redundancy, the reader is advised to review extensive previously composed hyperlinks and to note how such an initiative would be congruent with the views of two authorities, Andrew C. McCarthy and Caroline B. Glick.} 

Specifically, on July 7 (one week prior to when the deal was signed), Secretary of Defense Carter told the Senate Armed Services Committee that the arms embargo would not be lifted because “we want them to continue to be isolated militarily and limited in terms of the types of matériel that they have” and that Iran would not be permitted to develop an ICBM-program. {His response to Sen. Ayotte’s (R-N.H.) queries starts @ 1:12 on the video, although the “instant” C-SPAN transcript is incomplete.}  

All along, up to and including August 5, Obama obfuscates, consciously amnesiac to his having averred he would eschew raising any other issues beyond nuclear disarmament (such as prisoner-release) during these negotiations. Furthermore, Kerry subsequently claimed introduction of such confounding variables would have prompted Iran to seek “even more concessions, threatening the entire deal.” Indeed, on August 4, Sen. Durbin (D-Ill.)—an advocate for its approval—repeatedly referred to it as a “treaty.” 

Thus, in contravention to consistent messaging that had/has emanated from the executive branch, the legislative branch adopted this bill in May. In the process, black-letter limitation of presidential hegemony was emasculated under the pretense that it would only deal with nuclear-weapons capability, and not conventional weapons (or ICBMs).  

These shortcomings were compounded when chief-negotiator Wendy Sherman testified to the Senate Foreign Relations Committee on August 5. When queried regarding the secret side-agreements between the International Atomic Energy Agency, she initially claimed she would provide details during closed sessions but, following intense questioning by Sen. Vitter (R-La.), she steadfastly refused to countenance the senators’ ability to read these “private” documents. Indeed, she said “I don’t have those agreements to give to you” (@ 3:00). 

These failings were corroborated, also on August 5, when IAEA Director General Yukiya Amano briefed this committee regarding the side-agreements. In anguish, Sen. Corker (R-Tenn.) said, “We cannot get him to even confirm that we will have physical access inside of Parchin.”  

The fatal flaw, here, is rooted in fundamental parliamentary procedure, for the “resolved” section of a “resolution” is akin to the “approval” process of the “deal.” Invoking the American Medical Association’s use of Davis’ Rules of Order, for example, the action-item must be a stand-alone, affirmative statement; forbidden is “adoption by reference” of a policy promulgated by another entity (here, the IAEA), if for no other reason than the assembly cannot ensure the external body would not subsequently alter it (or fail to uphold it). 

Indeed, May’s Iran Nuclear Agreement Review Act of 2015 explicitly mandates that transmitted materials contain inter alia a report assessing “…the capacity and capability of the IAEA to effectively implement [sic] the verification regime required by or related to the agreement, including whether the IAEA will have sufficient access to investigate suspicious sites or allegations of covert nuclear-related activities….” [§135(a)(2)(iii)]. 

Thus, absent the ability to review all relevant data, the Senate [1]—cannot render an informed judgment, consistent with its “advise/consent” role, and [2]—cannot be viewed to be facing a 60-day deadline, for the Corker-Cardin Bill mandates that this “clock” start “ticking” only after the database has been completed. 

This filing would jointly seek a temporary restraining order, for the lawsuit reasonably could prevail and, otherwise, implementation of the pact would render it moot from the American perspective. Disapproval of any component of the pact would invalidate the entire agreement because neither the bill nor the pact contains a “severability” clause. 

The Ottoman-Islamic defeat at the “Gates of Vienna” in 1683 is on the verge of being reversed, again in Vienna, by Iranian-Islamic supremacism. Obama’s diplomatic sham-“army” has been routed, and it seems only the U.S. Senate can rescue (Judeo-Christian) Western Civilization from Obama’s perfidy.

Sklaroff is a physician-activist and may be contacted at rsklaroff@gmail.com.