Executive Power

Congress Is Responsible for the Iranian Exemptions to the New Visa Waiver Law

By Jack Goldsmith, Amira Mikhail
Monday, February 29, 2016, 9:30 AM

Last Thursday’s hearing by the House Committee on Foreign Affairs made clear that the Republicans in Congress are still steaming about the Obama administration’s narrowing of Congress’s recent restrictions to the U.S. Visa Waiver Program (VWP) related to Iran. But as usual when the President narrows a statutory program related to foreign relations, Congress has only itself to blame.

The VWP permits citizens of 38 countries in Europe, South Korea, and Japan to travel to the United States for up to 90 days without having to obtain a visa. Last November, in response to the San Bernadino attacks, Congress enacted the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Among other things, the 2015 Act excludes from the VWP those travelers from VWP countries who are also Iranian citizens or who have traveled to Iran since March 1, 2011. A few days after the law was enacted, Foreign Minister Mohammad Javad Zarif complained about the new law, and “Iranian lawmakers described the changes … as a blatant violation” of the Joint Comprehensive Plan of Action (JCPOA) in which Iran agreed to diminish its nuclear weapons program in exchange for the lifting of sanctions, including by the United States. On December 19, 2015, Secretary of State John Kerry wrote to Zarif to insist that the United States had several tools, including “the waiver authority provided under the new legislation,” to ensure that it would meet its JCPOA commitments.

The 2015 law does indeed provide a waiver authority. It allows the Secretary of Homeland Security to waive the new restrictions on a case-by-case basis “if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.” On January 21, 2016, when the law came into effect, the USG announced that such waivers would be granted only on a case-by-case basis, and that “as a general matter” the following categories of persons “may be eligible” for such case-by-case waivers: individuals who traveled to Iran for international organizations or humanitarian NGOs, as a journalist for reporting purposes, or “for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015).”

Several Republican members of the House sent an angry letter in response, complaining that the administration’s exemptions “were not provided for in the law, are contrary to congressional intent, and are in breach of the agreement we reached with members of your administration.” The administration may well have gone back on the “agreement” it made with members of Congress – an agreement that was not part of the law itself. We do not know about that, one way or the other, but any such agreement is legally irrelevant. Nor do we know what “congressional intent” was, since we cannot discern what the various members were thinking when they agreed to the waiver. But we are confident that the members are wrong in saying that the exemptions “were not provided for in the law.”

The waiver authority in the 2015 law applies “if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.” Not only did Congress choose the open-ended and undefined phrase “national security interest” as the waiver criterion – a criterion easily satisfied by the President’s desire to uphold what he sees as a vitally important international agreement. It also went further and specified, without qualification, that the DHS Secretary gets to make the determination. Given the language of the waiver, the Republican members are simply wrong to say that the exemptions related to Iran “were not provided for in the law.” The 2015 law clearly provided for them.

It’s not like Republican members of Congress were unaware that this might happen. They have spent much of the last year watching the President exercise the congressionally delegated waiver authorities on Iranian sanctions in order to fulfill the pledges the United States made in the JCPOA. As one of us wrote last year:

The main cause of Congress’s lack of leverage on the Iran deal is the pre-existing congressional sanctions regime that gave the President discretion to waive or lift the sanctions under certain circumstances. If Congress had not delegated to the President authority to lift the sanctions, the President could not lift them now, either directly or via an international agreement. So if you think Congress ought to have more power to stop the President from lifting Iran sanctions, blame past Congresses, not the Iran Review Act.

And yet just months after getting burned by open-ended delegations to the Executive branch related to Iran, the Republican-controlled Congress turns around and once again gets burned by an open-ended delegation to the Executive branch. Note to Congress: If you give a president discretionary authority to make a determination related to foreign affairs or national security, the President will exercise that authority in accordance with his view of foreign affairs or national security.

Senator Paul recently diagnosed the general problem here:

For some time now, power has been gravitating from the Legislature to the President. Many in Congress, including myself, have been critical of the President’s executive overreach.

However, Congress bears some of the blame in that this body continues to abdicate and transfer its power to the President. Nowhere is this more obvious than in foreign policy. …

Many conservatives readily see the President’s overreach in economic regulation but fail to grasp Presidential overreach when it comes to war. Our founders gave the power to declare war to the Legislature not the President. Yet, this President has had our country involved in two undeclared, unconditional wars in Libya and Syria.

Congress has done nothing.

Yet Congress’ abdication of its constitutional authority and duty to declare war did not begin with a President run amok. It began with Congress partially transferring its power via legislation.

The same can be said about the power to enact sanctions.

During the debate over the Iranian Agreement to end sanctions, many Congressional voices lamented that these sanctions were enacted by Congress and should not be unilaterally ended by the President without Congressional approval.

As many observers noted, Congress has only itself to blame.

For decades now, Congress has granted the President national security waivers to allow the executive to terminate sanctions without any new vote of Congress.

Looking back at the North Korean sanctions, we find President Clinton removing some sanctions by using the national security waiver that Congress provided.

President George W. Bush also relieved sanctions against North Korea by taking advantage of national security waivers.

Jump ahead to the Iran Agreement, and you find President Obama using national security waivers provided by Congress to unilaterally repeal Iranian Sanctions without Congressional authority.

In fact, President Obama has utilized Congressionally-provided loopholes 40 times to remove Iranian sanctions.

Fast forward to the North Korean sanctions before us and the new sanctions bill does exactly what previous sanctions bills have done before: namely, provide the President with power to simply claim any non-specific national security claim to waive the sanctions.

Congressional critics of the President’s use of national security waivers to end Iranian sanctions should decide now that they have no leg to stand on should a future President decide to end North Korean sanctions without Congressional approval.

I propose Congress take back its power. I propose that Congress not cede more power to the President.

While congressional delegations of foreign relations and national security authority to the president are necessary in the modern era, we are sympathetic to Senator Paul’s complaints that the delegations have gone too far. The problem with Senator Paul’s prescription is that it assumes Congress is institutionally capable of exercising its constitutional powers related to national security and foreign affairs. That assumption finds very little support in modern history.