Andy McCarthy Replies to Paul On Iran [With comment by Paul]

Andy McCarthy wrote a column over the weekend that urged Congress to refuse to proceed with a vote on the Corker Iran bill, on the ground that President Obama has failed to fulfill the conditions set forth in that legislation, since the full terms of the agreement have not been provided to Congress. (I am summarizing very briefly, there is much more to Andy’s argument.) Paul responded to Andy’s column here, agreeing with much of what Andy wrote, but arguing that any procedural maneuvering in Congress, at this point, is more or less futile. (Again, that is a very brief summary.)

Andy has now replied to Paul, here. The entire discussion is well worth your attention, since Republicans (and most Americans) agree that Obama’s Iran deal is ill-advised at best, but what, if anything, to do about it is a subject on which there is little agreement. Andy writes–and here I will do more than summarize, but these are excerpts; again, the whole colloquy is well worth reading:

My weekend column posited that Congress can still derail President Obama’s catastrophic Iran deal by simply following the unambiguous terms of the Corker law – the Iran Nuclear Agreement Review Act of 2015….

On Saturday, Power Line’s Paul Mirengoff posted a characteristically thoughtful response. Much of Paul’s analysis is sound, but I believe he gets a few important things wrong.

Paul writes (the italics are mine):

Andy suggests that if Corker-Cardin is followed, there will be a reasonable legal argument in 2017 that Congress repealed the (dormant) sanctions in 2015. However, I don’t see any merit in an argument that the Corker-Cardin process is sufficient to repeal an act of Congress (just as it isn’t sufficient to modify the NPT). In any event, Congress could pass a resolution affirming that it intends no such repeal.

There are several problems with this analysis.

1. It is the Corker law, not the Corker process, that repeals the anti-nuke sanctions.

To begin with, Paul misstates my argument: The sanctions are not being repealed by the Corker process; they were already conditionally repealed by the operative terms of the Corker law, which did much more than prescribe the futile “disapproval” process on which everyone is now hyper-focused.

…Suffice it to say that the Corker law is an authorizing statute that conditionally repeals the congressional sanctions against Iran’s nuclear program. By contrast, the Corker review process is a provision of the Corker law that permits Congress to attempt to enact a “resolution of disapproval” against Obama’s Iran deal – an illusory process because there was never any chance that Democrats would allow such a resolution to be enacted over Obama’s certain veto.

I do not contend that this farcical process would have the effect of repealing the anti-nuke sanctions. I argue that the sanctions would be repealed because Congress already approved the repeal in the Corker authorizing statute back in May (subject to the condition that Obama disclose the entire Iran deal). The process scheduled to occur this month is just theater that was never going to result in a disapproval resolution and thus was never intended to have any real legal effect.

2. The statutory anti-nuke sanctions are conditionally repealed, not merely made “dormant” by the Corker law.

Many conservative commentators contend that because the Iran deal has been neither submitted by Obama to the Senate as a treaty, nor treated by Congress as a treaty, it is just an executive agreement and its terms have no binding legal force. Paul does not exactly say that, but he comes close. He argues, for example, that if, under Corker, Congress does not vote to disapprove the Iran deal, the sanctions would become “dormant” – in contrast to my conclusion that Corker operates to repeal the sanctions. To describe them as dormant is to suggest that the next president could legitimately begin enforcing them again in 2017. That implies that Paul sees Obama’s deal as a mere executive agreement and that no part of Corker gives any part of the deal binding legal force. …

When we parse the Iran deal’s separate components, we quickly see they are different in nature and have different legal ramifications. Varying provisions of Obama’s Iran deal address, for example, U.N. international-law sanctions, inspection and verification standards, new U.S. international obligations (such as the mind-blowing duty to protect Iran’s nuclear activities from sabotage), and so on. Most significantly for our purposes, some address U.S. statutory sanctions. Reciprocally, Congress’s Corker law narrowly targets only the U.S. statutory sanctions. In fact, Corker is even narrower than that: it focuses only on the lifting of sanctions against Iran’s nuclear program. The Corker law explicitly states that other sanctions Congress has enacted against Iran’s terrorism and weapons activities must remain in place (notwithstanding that Obama’s deal purports to lift them, too). …

[T]o preserve the anti-nuke sanctions, Congress must call Obama on his failure to comply with the condition that he disclose the full agreement. Otherwise, the statutory sanctions will be deemed repealed by operation of the Corker authorizing statute. They will not merely be dormant. They are already dormant because Obama was waived them. But if Congress fails to call Obama on his default, the sanctions will be repealed and, to be revived, they would have to be enacted by new legislation.

3. A statute cannot be repealed by a resolution.

As an act of Congress signed by the president, the Corker law’s repeal of sanctions cannot, as Paul suggests, be undone by a simple Congressional resolution explaining that Congress did not intend to repeal the sanctions. Again, if the sanctions are repealed, it would take an new act of Congress signed by the president to reinstate them. …

Paul is a very fine lawyer, so I am confident he is well aware that a congressional resolution can no more repeal a statute than can an executive order. I thus assume that when he claims Congress could pass a resolution disclaiming an intention to repeal the sanctions, he is regarding Obama’s Iran deal as a mere executive agreement and Corker as having done nothing to give it binding legal effect. I just don’t agree with that interpretation. In my view, the Corker law authorized Obama (conditionally) to lift the anti-nuke sanctions; and, because Corker was a subsequent statute, it could legitimately repeal statutory sanctions.

This discussion is rather technical; why is it important?

I was not talking about merely sending a message. I was talking about paving the way for the next president to renounce Obama’s Iran deal and immediately revive enforcement of the anti-nuke sanctions.

If the sanctions have been repealed by the Corker law, the next president will be boxed in legally and practically. Legally, the problem would be that the sanctions would have to be reinstated by newly enacted law. Realistically, the problems would be that (a) the repealed sanctions would have been off the books for two years, so Iran would already have gotten its financial windfall and could easily withstand reinstated sanctions; and (b) other countries would very loudly complain that they lifted their sanctions and made new commercial arrangements with Iran in reliance on the Corker law – they’d undoubtedly accuse the U.S. of violating international law.

This is a matter of legal consequences, not messages. If Congress proceeds with the otherwise pointless process of voting on the Iran deal, Obama’s failure to disclose the entire deal as the Corker law requires will be deemed forgiven and the sanctions will be repealed. If Congress resolves not to proceed with the review process because Obama has not complied with his disclosure obligation, then the anti-nuke sanctions will not be repealed (even if Obama declines to enforce them) and the next president can immediately begin enforcing them.

Without more thought, I am not prepared to come down on one side or the other in this debate. But I hope Republican leaders in Congress are giving their strategy as thoughtful consideration as Andy and Paul are.

PAUL ADDS: I am grateful to Andy not only for engaging my arguments, but for the respectful manner in which he takes them on.

Andy is a terrific lawyer and an outstanding political analyst. He has consistently produced the most thought-provoking writing I’ve seen about the Corker-Cardin Act and the process it established.

Nonetheless, I disagree with much of what he says in response to my piece. I’ll explain why in a forthcoming post.