The last hope to keep Iran from going nuclear?
Emergency Prescription for Senate: —Pass rule that abolishes the filibuster; —Pass resolution declaring the Iran nuke deal to be a “treaty”; —Defeat the deal; and —Sue President Obama to enjoin him from implementing the deal.
A tsunami of support for portraying the Iran nuke capitulation as a “treaty” must culminate in an ironclad commitment to litigate. The Supreme Court will then be able to negate Obama’s (mis-)portrayal thereof as an “executive order.”
This conceptualization was exhaustively promulgated and painstakingly documented in five prior essays. Provisional endorsement thereof has emerged from other authors, albeit none explicitly advocated filing a lawsuit comparable to that which pends against ObamaCare (c/o Speaker Boehner).
The potential need to sue Obama was predicted in May and corroborated in July. Fundamental components of this approach focused on its “treaty” and “rule-of-law” components. The most-recent essay conceptualized the legal justification for this initiative, and Jerry Gordon has detailed, comprehensively, “How Best to Overturn the Iran Nuclear Pact” and “Denouement Looms for Congressional Action on the Iran Nuclear Pact.”
During recent months, myriad incarnations of this approach were promoted by legal-authority Andrew C. McCarthy, accomplished-author Caroline B. Glick, and constitutional-scholar Dr. John C. Eastman (personal communication, August 19).
Dr. Eastman wrote:
First, because only a “treaty” is the Supreme law of the land, a mere executive agreement could not overturn statutorily-imposed sanctions. And neither, in my view, could a change in the constitutionally-mandated default rule for adopting a treaty. Second, if that is true, then a members of the Senate who, collectively, had the votes to prevent ratification of a treaty would have standing to challenge the process that negated their vote. That’s the Coleman v. Miller case on all fours.
Professor Alan Dershowitz challenged the president’s power to enter into long-term deals with foreign powers without congressional consent by simply declaring an important deal to be an executive agreement rather than a treaty. “[G]eneral and permanent commercial regulations with foreign powers must be made by treaty, but…the particular and temporary regulations of commerce may be made by an agreement of a state with another, or with a foreign power, by the consent of Congress” (Gibbons v. Ogden).
During recent days, others have homed in on this goal. Jerome M. Marcus, Esquire claimed, “Congress has the right to see the full negotiating record, not just the final product or strategically-leaked details.”
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, examined a federal district court initiative to allow the Senate to approve the Iran nuclear deal as a treaty, and not an executive agreement; it is based on the view that the Constitution “does not allow Congress to give away its treaty-reviewing role to the president” by having adopted the Corker-Cardin Bill.
Jim Geraghty advised that Republicans “Use our senatorial nuclear option to stop Iran’s radioactive nuclear option” by proposing: “Scrap the filibuster, pass a resolution declaring the Iran deal a treaty that requires Senate authorization, introduce the text of the Iran deal, and vote it down.”
Also during recent days, however, Leftists gloat that the “congressional fight on [the] Iran deal is all but over” while invoking hyperbole when—unwittingly ironically—claiming that “[t]he Iran nuclear deal is President Obama’s Iraq troop surge.”
Meanwhile, venal arguments favoring the deal have emerged that are both soft-sell (when President Obama claimed, to a Jewish-American group, “We’re all pro-Israel”) and hard-sell (when a former spokesman for Iran’s nuclear negotiators claimed “rejection of the nuclear deal could lead to radicalism in Iran”).
Also, the International Atomic Energy Agency—now claiming poverty—reported Iran may have built an extension to part of its Parchin nuclear site, since May.
Concomitantly, the blame-game against Republican leadership has justifiably surfaced. For example, belatedly it has been recognized that “an Iran deal filibuster will be Corker’s folly” since—regardless of his motive—he failed legislatively to preclude the ability to overcome a filibuster.
Recognizing that Congress will NOT “have a say,” as promised in May, Republicans have not proposed anything substantive to counter the bleak political landscape. Indeed, despite again exclaiming, “The President’s Iran deal makes the world less safe,” no viable solution was proffered during the Weekly Republican Party’s Address and a face-saving effort to enact additional sanctions cannot suffice.
Some claim that states cannot be forced to comply with international treaties unless Congress has passed statutes giving them effect (Medellín v. Texas, 2008) and, in fact, that states can add new sanctions. Yet, the president can initiate executive agreements with foreign states without the advice or consent of the Senate, and executive agreements are binding over states’ constitutions, laws, and policies (U.S. vs. Belmont, 1937). Nothing here can offset the upwards of $150 billion “signing-bonus.”
Adopting a defeatist attitude is premature, however, for the Corker-Cardin-Menendez Bill has been nullified due to the absence of initial/subsequent “informed consent.” Not only does Obama continue to maintain secrecy regarding key (known to be faulty) inspection regimes, but he dropped sanctions against conventional arms (that Tehran and Moscow already exploit) against explicit reassurances contained in congressional testimony, as recently as one week prior to announcement of the accord on July 14.
This treaty must be ratified by a 2/3-vote of those present prior to implementation. Yet, it should be defeated because this “bad” deal could easily be improved, as has been extensively and near-universally averred by multiple experts over the summer. This approach would also preclude its being perceived as a Congressional-Executive Agreement, which is implemented via passage of a joint-resolution of both Houses.
When it doesn’t survive advise/consent, it is hoped that Obama won’t go rogue, as was suggested when Secretary of State Kerry did not reflexly 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”).
If he does, because Senate Majority Leader Mitch McConnell (R-KY)—and Speaker Boehner—pledged to do everything possible to block the deal, he must sue President Obama. In the process, he will be enhancing world security and sustaining the overwhelming will of the American people.
Only the U.S. Senate can rescue (Judeo-Christian) Western Civilization from the Administration’s perfidy and collaboration with Islamists.
Robert B. Sklaroff, M.D. is a physician-activist and may be contacted at [email protected]. Lee S. Bender, Esquire, is an attorney, activist and co-author of the book, Pressing Israel: Media Bias Exposed From A-Z. (Deeply appreciated are publication decisions by Messrs. Thomas Lifson and Joseph Picard, who legitimized dissemination of prior incarnations purely on their merits; acknowledged also is editing support, inter alia, by Messrs. Richard Baehr and Ted Belman, who honored heartfelt pleas.)