Separation-of-Powers Objections to the Iran Nuclear Agreement

By Samuel Estreicher
Tuesday, January 9, 2018, 8:00 AM

In a recently published article, “Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers,” 86 Fordham L. Rev. 1199 (2017), Steven Menashi and I question the constitutional validity of President Barack Obama's decision, as part of the 2015 Joint Comprehensive Plan of Action agreement with Iran and five other countries, to repeal, in effect, 17 different Iran-related nuclear sanctions provisions for the agreement’s 15-year term. Despite the fact that Congress had legislated extensively in this area, Obama effected this change by entering into a “nonbinding political agreement” with Iran and by aggregating individual waiver provisions in existing sanctions laws into an across-the-board waiver of sanctions.

Obama’s move reversed the usual course of ordinary lawmaking. If he had proceeded to faithfully honor congressional occupation of the field of Iran sanctions, as manifested by the series of laws enacted over nearly three decades dealing with the subject, he would have had to muster majorities in both houses of Congress to release the sanctions. Proceeding as he did through the “political agreement” route, the burden was shifted to opponents of the agreement to obtain two-thirds majorities in both houses—simply to keep in place the preexisting sanctions regime. The Iran Nuclear Agreement Review Act of 2015 that did pass was but a feeble attempt to reassert congressional primacy, given the change in the level of congressional support required to block the JCPOA.

Our article highlights two principles that should inform U.S. foreign relations scholarship and delineation of the respective roles of Congress and the executive in the foreign relations sphere. The first is what we call “the Steel Seizure principle,” after Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Steel Seizure has generated a vast literature, especially over Justice Robert Jackson’s influential concurring opinion. Yet relatively little attention has been paid to the majority view of the justices that President Harry Truman's seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional “plan”—as evidenced by prior legislation—for addressing the particular policy issue. In other words, unless we are dealing with an area of exclusive executive competence (which the sanctions regime is not), the president must honor not only the express terms of law but also the congressional policy or plan evidenced by prior laws. This aspect of Steel Seizure highlights what is particularly problematic about Obama’s decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear sanctions against Iran. The president treated the waiver provisions as an invitation to end the congressionally prescribed sanctions regime for addressing Iran's nuclear weapons program and to replace it with his own non-sanctions regime for addressing the same issue. This was a violation of the Steel Seizure principle: The president lacks the unilateral power to overturn Congress’s prescribed policy and to replace it with his own.

Our study also recognizes the limited authority of the president when dealing with waiver provisions even in foreign relations. The president can be viewed both as an agent of the legislative branch and, particularly in the foreign relations arena where the executive enjoys a power of initiative, as a co-principal with Congress. However, under the Steel Seizure principle, once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the president's role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the president to seek new legislation each time flexibility was called for. It did not, however, invite the president to override the sanctions framework altogether, as he did in the JCPOA.

The fact that the JCPOA was the product of an unlawful assertion of executive power perhaps provides an additional reason for the Trump administration to rescind the agreement. As a policy matter, however, the cat may have escaped the proverbial bag. With the release of embargoed funds to Iran and the license given to our allies to trade again with Iran free of the prior sanctions regime, it may be too late to reassemble the regime.