Coping with Corker-Cardin — a reply to Andy McCarthy

Andy McCarthy, whom we admire, has responded to a post in which I argued (1) that Congress should not follow the voting procedure established by the Corker-Cardin legislation, but (2) if Congress does follow this procedure it will not, by doing so, repeal any sanctions against Iran. Andy has been the leading proponent of the first proposition, but he disagrees with the second.

In his original post, which prompted mine, Andy wrote “[i]f lawmakers. . .go ahead with the vote on the Iran deal despite Obama’s failure to comply with the Corker legislation’s terms, there would be a very reasonable legal argument that the sanctions have been repealed” because “Congress could be seen as forgiving Obama’s default.” (Emphasis added).

In his response to my post, Andy goes further. He contends (it seems to me) that there would be a compelling argument that sanctions have been repealed.

As explained below, I continue to disagree with the view that sanctions reasonably could be deemed repealed by virtue of a vote pursuant to Corker-Cardin.

Andy begins by saying that I misstated his case when I said I see no merit “in an argument that the Corker-Cardin process is sufficient to repeal an act of Congress.” Andy insists that “the sanctions are not being repealed by the Corker process; they were already conditionally repealed by the operative terms of the Corker law.”

But conditional repeal is not repeal. Repeal can occur only if the applicable conditions are met (they have not) or if they are “forgiven” as a result of Congress going through the Corker-Cardin process.

Here’s what Andy wrote originally:

From a legal standpoint, by going forward with the review process despite Obama’s failure to comply with the Corker-Cardin legislation’s terms, Congress could be seen as forgiving Obama’s default. If lawmakers then go ahead with the vote on the Iran deal. . .there would be a very reasonable legal argument that the sanctions have been repealed.

(Emphasis added.)

It is, then, the process — in particular, the vote — that, in Andy’s view, repeals the sanctions. As he says, prior to the voting process, the sanctions are only conditionally repealed. (I’m not sure they would be “repealed” even if all conditions were met, but I’ll assume for purposes of this discussion that they would be).

The condition of repeal is submission of the full agreement to Congress. Because, as Andy and I agree, that condition manifestly has not been fulfilled, there is no repeal unless the voting process brings this about by forgiving Obama’s default.

Such forgiveness, I maintain, would not — cannot — occur by virtue of going through the Corker-Cardin process. The legislation conditions alteration of the sanctions on submission by the Obama administration of the full agreement to Congress. I see nothing in the agreement that provides for forgiveness of that obligation under any circumstances.

By conditioning alteration of the sanctions on submission of the full agreement, Congress laid down its definitive directive on how the sanctions it enacted can be altered. Conducting a vote wouldn’t repeal Congress’ directive. Only another piece of duly enacted legislation would do so.

If Congress wants to emphasize this reality, it can, as I suggested, pass a resolution saying so. Andy responds that a resolution cannot alter the terms of the Corker-Cardin legislation.

That’s true, of course, and I didn’t mean to suggest otherwise. The purpose of the resolution wouldn’t be to alter the terms of Corker-Cardin; as I have argued, no alteration is needed to keep sanctions on the books. The purpose would be to make clear, in the event that someone later tries to construe a vote as Andy argues it should be construed, that by following the Corker-Cardin procedure, Congress did not intend to scrap sanctions. But such a resolution would be surplus to requirements.

Congress passed Corker-Cardin because it wanted a process through which it could either block the Iran deal or at least express its disapproval through a vote that the White House and congressional Democrats recognized as proper (and in which some Democrats would buck the administration). Obama’s failure to comply with Corker-Cardin does not enable him to force Congress either to lose that opportunity (for what little it may be worth) or else be deemed to have “repealed” sanctions. Obama cannot profit in this way from Corker-Cardin by violating it.

Congress can declare the entire legislation null and void, and I believe it should as a matter of principle. But it isn’t required to do so in order to keep sanctions on the books.

I want to thank Andy again for engaging my arguments and for the manner in which he did so.