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Deal or No Deal: The Legal Questions Regarding the Iranian Nuclear Negotiations

By   /  November 27, 2014  /  No Comments

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In 2013, in an historic moment, US President Barack Obama cautiously shook the hand of Iranian President Hassan Rouhani. It was the first time since the 1979 Iranian Revolution that an American President had contact with an Iranian leader. Obama later phoned Rouhani from the Oval Office, seeking to begin to negotiate a long-term end to the Iranian nuclear program, which is seen by many nations to be a major security threat. Negotiations started in January of 2014, and are set to end on November 24, 2014.

These talks and their impact on national security prompt many important constitutional questions, particularly regarding the separation of powers. If a deal is reached, the President will certainly seek to enforce it unilaterally, even though Congress will demand a vote on any measure to reduce sanctions. If a deal fails, the immediate question becomes whether the US should take military action against Iran and whether the President can order the strikes unilaterally. Both of these possibilities and questions will be explored below.

1. A deal is reached. 

The Obama Administration prefers that the parties reach an agreement that significantly curtails the Iranian nuclear program. However, any agreement is sure to be controversial among hawkish lawmakers. Congress has already demanded the ability to express an opinion on the talks. In July of 2014, Representatives Ed Royce and Eliot Engel, as well as Senators Robert Menendez and Lindsay Graham, issued harshly worded letters urging President Obama to routinely consult Congress on the status of the negotiations and to allow for a vote on the final deal. The letters garnered the signatures of 344 members of the House and 83 Senators.

While the President has not commented on Congress’s role in the negotiations and a final agreement, it seems unlikely that he wants to subject a potentially legacy-shaping international agreement to congressional debate. Precedent indicates that he may not have to. The President’s duty as Commander-in-Chief, stated in Article II of the US Constitution has established him as the main executor of the “vast majority” of national security interests and foreign affairs Although the Court held against asserting executive authority in Youngstown Sheet & Tube Co., it did establish that the President is the driving force and main authority behind foreign policy decisions. Other opinions simultaneously stress that the President’s authority, depending on the gravity of a given situation, is more legitimate if it is reaffirmed by an act of Congress. From this holding, one can assume that even though any accord with Iran would be more legitimate if approved by Congress, this may not be necessary. The main question will hinge on the extent to which the agreement reflects the President’s foreign affairs power without infringing on congressional duties.

2. A deal is not reached. 

The more ambiguous scenario regarding the negotiations is the prospect that both parties will not reach an agreement. The Obama Administration claims that the talks were the only alternative to military action, and that war is a foregone conclusion if talks are unsuccessful. If talks fail, there could be pressure from hawkish lawmakers, as well as allied nations to launch a military strike against Iranian nuclear sites. Should this truly be the President’s last resort, the question will focus on his authority as Commander-in-Chief to launch a military strike against a rogue nation.

The first authority the President will likely cite to justify striking Iran is the 2001 Authorization of Military Force statute, which grants the President authority to strike all “nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks on September 11, 2001, or harbored such persons and organizations.” The Iranian government has been vocally supportive of terrorist groups and anti-Americanism throughout the region. They have also been allegedly transferring weapons to terrorist factions for many years, including aiding factions that the United States has been battling in Iraq and Afghanistan. Given Iran’s support of militant factions connected to the September 11 attacks, it is very likely that the President would have authority under the AUMF to strike Iran.

Beyond the executive prerogative of the AUMF, the Obama administration could also cite the century-and-a-half old tradition of 67 U.S. 635. The Court held in this famous Civil War-era case that the President, as Commander-In-Chief, had the authority to act to protect the country in the midst of imminent conflict, even without the consent and advice of Congress. Iran’s vocal anti-Americanism and alleged aid to belligerent factions likely establish that there is an imminent conflict that would be heightened by a failure of diplomacy. If President Obama and leaders in Congress are correct in saying that war with Iran is certain, absent a diplomatic breakthrough, then it is likely that the President has the authority to strike.

Conclusion

These talks raise very significant questions surrounding executive authority in war-making and exercising foreign affairs. Regardless of the outcome, deal or no deal, the enduring controversy and dispute over presidential authority is likely to be manifested in the reactions of Congress and the White House.

 


[1] Crowley, Michael. “Obama and Rouhani: A Handshake that could shake the world” Time http://swampland.time.com/2013/09/24/obama-and-rouhani-a-handshake-that-could-shake-the-world/24 September 2013

[4]Id.

[5]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) (stating” the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution”)).    

[6]Id.

[7]Id. at 630-32, 661-62 ((Douglas, J., Concurring)(Black, J., Concurring))

[8] See footnote 1

[9] 50 U.S.C.A. §1541 (West 2014)

[10] Ian Black.  “Iran and the Great Satan.”  The Guardian http://www.theguardian.com/world/2008/jul/16/iran.usa1   16 July 2008

[11] Kimberly Dozier. “NATO forces seize rockets from Iran in Afghanistan.”  http://www.washingtonpost.com/wp-dyn/content/article/2011/03/09/AR2011030901224.html 9 March 2011

[12]Id. at 635

 


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