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. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Read more »

By DAVID B. RIVKIN JR. And LEE A. CASEY, Jan. 20, 2015

Nuclear talks between Iran and the U.S. recommenced Jan. 14, ahead of full international talks with senior officials from the U.S., U.K., France, Russia, China and Germany two days later. A final agreement is to be reached no later than June 30. Nothing less than Middle Eastern and global security hangs in the balance.

That security depends on verifiable elimination of Iran’s nuclear-weapons and ballistic-missile programs. Unfortunately, the Obama administration is likely to accept a deal leaving in place a substantial Iranian nuclear-weapons infrastructure, including uranium-enrichment capability, long-range ballistic missiles and the ability to deploy a rudimentary nuclear force on short notice. A course correction that only Congress can effect is urgently needed.

It is difficult for Congress to stop a president determined to sign an agreement with foreign leaders. And as this newspaper pointed out in a recent editorial, President Obama has threatened to veto any legislation to impose further sanctions on Iran if the June 30 deadline is not met. Still, Tehran’s insistence that existing U.S. sanctions be lifted as part of a nuclear-weapons agreement gives U.S. lawmakers substantial leverage. The collapse of oil prices, which dealt a heavy blow to the already weakened Iranian economy, has further increased this leverage. Here is what Congress should do:

First, Congress should insist that any Iranian agreement take the form of a treaty. The Constitution requires that treaties be made only with the advice and consent of the Senate. At the time it was adopted, and throughout most of U.S. history, agreements fundamentally ordering the relationship between the U.S. and foreign nations took the form of treaties, not executive orders. A mere executive agreement, which Mr. Obama may use to evade congressional constraints here, would be constitutionally insufficient. Read more »

Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

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By David B. Rivkin Jr. and Lee A. Casey

While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.

The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture.  But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.

The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.

Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.

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