What is to be done?

President Obama has failed to comply with the conditions of the Iran Nuclear Agreement Review Act (the Corker-Cardin bill) that he himself signed into law. By its express terms the law required Obama to transmit to Congress “the agreement. . . . including all related materials and annexes.” He was obligated to do this “not later than five days after reaching the agreement.”

Obama has not done so. The administration has failed or refused to submit the IAEA side deal with Iran regarding the possible military dimensions of Iran’s research at the Parchin military facility to Congress.

Indeed, the administration claim not even to have seen the IAEA side deal. Rather, administration officials claim only to have been briefed by the IAEA on the terms of the side deal. They claim it is cloaked in secrecy that prevents its disclosure. The side deal is nevertheless an integral part of the JCPOA and its disclosure expressly required by the act.

Whether or not the side deal is “confidential” matters not one iota under the terms of the Corker-Cardin bill. It should be noted, however, that the administration appears to have constructed an elaborate pretense regarding the side deal. Fred Fleitz has advanced a highly plausible case that administration officials themselves drafted one or more side deals including this one for the IAEA including the Parchin side deal. He calls the arrangement “a national security fraud.”

Obama’s noncompliance with the act is more than problematic. It precludes (or should) the president’s authority to waive sanctions. It prevents (or should) the JCPOA itself from coming to a vote in Congress. Yet little notice has been taken of any of the serious issues that Obama has created in the service of his Iranian fantasies. As always, Obama acts by the executive equivalent of main force and trusts others to fall into line.

Rep. Mike Pompeo and attorney David Rivkin take note in a brief Washington Post column. They write:

Congress must now confront the grave issues of constitutional law prompted by the president’s failure to comply with his obligations under the act. This is not the first time this administration has disregarded clear statutory requirements, encroaching in the process upon Congress’s legislative and budgetary prerogatives. The fact that this has happened again in the context of a national security agreement vital to the United States and its allies makes the situation all the more serious.

For Congress to vote on the merits of the agreement without the opportunity to review all of its aspects would both effectively sanction the president’s unconstitutional conduct and be a major policy mistake. Instead, both houses should vote to register their view that the president has not complied with his obligations under the act by not providing Congress with a copy of an agreement between the IAEA and Iran, and that, as a result, the president remains unable to lift statutory sanctions against Iran. Then, if the president ignores this legal limit on his authority, Congress can and should take its case to court.

At the least, the congressional leaders should refuse to call up the JCPOA for a vote of approval and “register their view” as Pompeo and Rivkin suggest. Congress should force the issue in other ways within the scope of their powers. I don’t know about the proposed judicial remedy; it seems like weak tea. I don’t have the answer, but Congress should not proceed as though the conditions precedent to a vote of approval and the waiver of sanctions have occurred as required under the Corker-Cardin bill; they have not.

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