Samuel Estreicher & Steven Menashi: The Iran Nuclear Agreement and the Separation of Powers
Samuel Estreicher (New York University Law School) and Steven Menashi (George Mason University) have posted Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers (Fordham Law Review, forthcoming) on SSRN. Here is the abstract:
This article examines the constitutional validity of President Obama's decision, as part of his 2015 agreement with Iran, effectively to repeal 17 different sanctions laws for the 15-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a "nonbinding political agreement" with Iran and by aggregating individual waiver provisions in the sanctions laws into an across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power — what we term "the Steel Seizure principle," after the Youngstown Steel Seizure Case.
As the Supreme Court reaffirmed in the Steel Seizure Case, the President does not have lawmaking power even where national-security and foreign-relations concerns are at stake. A vast literature has grown around the Steel Seizure Case, especially the influential concurring opinion by Justice Robert Jackson. Yet relatively little attention has been paid to the majority view of the Justices that President Truman’s seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional "plan" for addressing the particular policy issue. This central aspect of the Steel Seizure Case highlights what is particularly problematic about President Obama's decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear-related sanctions pursuant to his agreement with 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. Yet the President lacks the unilateral power to overturn Congress's prescribed policy and to replace it with his own.
The President is both an agent and, particularly in the foreign relations area, can be viewed as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President. 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 needed. It did not, however, invite the President to override the sanctions framework altogether, as occurred in connection with the Iran nuclear agreement. An emergent literature in administrative law has praised Congress's delegation of waiver authority to the executive branch as providing needed flexibility and other policy benefits. Yet that literature recognizes that the President's exercise of waiver authority must be carefully circumscribed to avoid enabling the President effectively to revise a statutory regime out of disagreement with Congress's legislated policy choices. Such limiting principles are no less necessary in the foreign-affairs context, where the President used purported waiver authority in the Iran sanctions statutes to pursue his own independent policy in defiance of Congress.
My somewhat different (but also critical) take on the Iran deal is here.