By DAVID B. RIVKIN JR. and LEE A. CASEY

The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make. However, because of the way the deal was pushed through, the states may be able to derail it by enacting their own Iran sanctions legislation.

President Obama executed the nuclear deal as an executive agreement, not as a treaty. While presidents have used executive agreements to arrange less-important or temporary matters, significant international obligations have always been established through treaties, which require Senate consent by a two-thirds majority.

The Constitution’s division of the treaty-making power between the president and Senate ensured that all major U.S. international undertakings enjoyed broad domestic support. It also enabled the states to make their voices heard through senators when considering treaties—which are constitutionally the “supreme law of the land” and pre-empt state laws.

The Obama administration had help in its end-run around the Constitution. Instead of insisting on compliance with the Senate’s treaty-making prerogatives, Congress enacted the Iran Nuclear Agreement Act of 2015. Known as Corker-Cardin, it surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement. Instead, the act effectively requires a veto-proof majority in both houses of Congress to block elements of the Iran deal related to U.S. sanctions relief. The act doesn’t require congressional approval for the agreement as a whole.

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By David B. Rivkin, Jr., and Lee A. Casey; July 21, 2015, in The National Interest

The best approach to Iran in the wake of President Obama’s deal is to recognize the complex nature of the problem, and the absolute need for a well-considered and comprehensive approach. The agreement cannot and should not be simply repudiated on the next president’s first day in office, as some Republican presidential contenders have suggested. The agreement is terrible, but once concluded, the national interest requires that it be undone only with care, patience, and masterful diplomacy—an approach championed by Gov. Jeb Bush and Senator Lindsey Graham. Indeed, to suggest otherwise, is to fail to appreciate the full extent of the damage done by the deal and the difficult foreign-policy legacy President Obama is leaving for his successor.

First and foremost, simply abrogating the deal—which already has been enshrined in a Chapter VII UN Security Council Resolution binding on the United States and all members of the United Nations—would actually put the United States in violation of its international obligations and will hand tremendous strategic benefits to Tehran. This may be inevitable, since Russia and China will certainly take advantage of any American action against Iran to score diplomatic and strategic points against us. But, we do not have to make it easy for them, and we should not.

In addition, whatever action the new president takes on January 20, 2017, Iran will remain free of the vast majority of the sanctions that brought it to the bargaining table in the first place. While the next president will be able to vitiate promptly President Obama’s waivers of the existing statutory sanctions—some of which are certain to go beyond his lawful waiver authority—thereby making the existing domestic statutory sanctions available, it would still make sense to consult with Congress on whether the sanctions regime needs adjustment in light of new circumstances.

Although President Obama has ignored Congress, or affirmatively sought to curtail its constitutional prerogatives, the next President should work with Congress and must seek to build a bipartisan consensus on how to meet the Iranian challenge. As Supreme Court Justice Robert Jackson wrote in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer (1952), a president acts at the height of his constitutional authority when working with, rather than against, Congress.

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By David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman, June 15 2015

Note from the Editor:

This article discusses the Environmental Protection Agency’s Clean Power Plan under the Clean Air Act. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about the issues involved. To this end, we offer links to other perspectives on the subject, and we invite responses from our audience. To join the debate, please e-mail us at info@fed-soc.org.

Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory.1 It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.

The Environmental Protection Agency’s “Clean Power Plan” (the “Proposed Rule”) abandons that careful accommodation and, in so doing, violates the Tenth Amendment and principles of federalism. The Proposed Rule requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030. Although ostensibly directed at emissions from fossil-fuel-fired power plants, the Proposed Rule sets targets for individual states that incorporate “beyond-the-fenceline” cuts to be achieved by increasing reliance on natural gas generation, adopting zero-emissions generation such as wind and solar, and reducing electricity demand. The goal is to phase out coal-fired power plants, which currently account for nearly 40 percent of electricity generation.

In the service of achieving EPA’s policy objectives, the Proposed Rule forces each state to overhaul its energy market. Just to keep the lights on, states will have to dramatically change their energy mix, to account for the loss of coal-fired generating capacity, and to rework their regulation of energy producers, power dispatch, and transmission. This will require changes to states’ legal and regulatory structures, as well as numerous regulatory actions directed at their own citizens—energy producers and consumers alike. In order to accomplish these objectives, even a state that declines to implement the Clean Power Plan will have to employ EPA’s “building blocks” to prevent the Plan from wrecking the state’s energy economy. And states that refuse to accede to EPA’s demand to implement this new program face the specter of financial sanctions. In short, EPA’s Proposed Rule forces the states to act to carry out federal policy. It is a gun to the head of the states: “Your sovereignty or your economy” is EPA’s ultimate demand.
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By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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By Elizabeth Price Foley and David B. Rivkin Jr. — Tuesday, March 10, 2015

Since its partisan passage in 2010, Obamacare has traversed a rocky road. President Obama has taken numerous executive actions to delay and modify the poorly written law in an effort to ease the political consequences of full implementation and make it work. However, in the president’s zeal to rewrite yet another area of law — immigration — he’s sabotaged one of Obamacare’s primary goals: expanding employer-sponsored health insurance.

The president’s executive actions on immigration — the major one of which is currently on hold due to a court order — confers two specific benefits upon approximately 6 million individuals who have entered this country illegally or overstayed their visas. First, they are completely exempted from deportation. Second, they are granted work permits. These unilaterally conferred benefits are powerful evidence that the president isn’t just exercising executive “discretion” by prioritizing enforcement of existing immigration law — he is rewriting it.

This massive influx of now-lawful workers will predictably reduce job opportunities for U.S. citizens and lawful residents. But beyond this obvious negative impact, granting work permits to these individuals will have a subtler, equally pernicious effect: It will encourage employers to hire these 6 million individuals over U.S. citizens and legal residents. This is due to Obamacare’s structure.

Under Obamacare, employers must pay a tax — called the “employer responsibility” tax — if they either fail to offer insurance altogether, or they offer “substandard” insurance. The employer responsibility tax is hefty, ranging between $2,000 to $3,000 per year, and is payable for every full-time employee who buys health insurance on an exchange and receives a tax subsidy as a result. The idea is to incentivize employers to offer generous insurance coverage, thus keeping workers off the exchanges, and away from tax subsidies. If no full-time worker receives a tax subsidy for buying health insurance, the employer will pay no employer responsibility tax. Read more »