Guest Post: The Lawless Presidency of Marco Rubio–A Reply to Professor Ku

[Bruce Ackerman, Sterling Professor of Law and Political Science at Yale, is the author of The Decline and Fall of the American Republic and David Golove, Hiller Family Foundation Professor of Law, New York University School of Law, is the co-author of Is NAFTA Constitutional?]

Responding to our essay in the Atlantic, Professor Julian Ku believes that we are “deeply and badly mistaken” in criticizing Senator Rubio’s claim that the next President has constitutional authority to repudiate the Iran Nuclear Agreement on his first day in office.

We are not convinced.

According to Professor Ku, nothing in the “Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize[s] the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments.”

This claim boldly ignores the Iran Act’s key operative provisions. The Act specifically defines “agreement” to include any accord with Iran “regardless of whether it is legally binding or not.” § 2610e(h)(1).  It then authorizes the President to implement sanctions relief unless Congress enacts “a joint resolution stating in substance that the Congress does not favor the agreement.” 42 U.S.C. § 2610e(c)(2)(B).

Professor Ku is simply wrong in asserting that the statute is silent on the issue of legality. Congress was fully apprised of the President’s intention to conclude an accord. Far from objecting to his plans, it granted him authority to implement any “agreement” – so long as it passed its own specially devised procedure for reviewing the deal

He does, however, have a fallback position. Although Congress plainly gave the president authority to create a “legally binding” agreement, it did not require him to do so – and Professor Ku notes that the Administration at one stage denied that it had any such intention.

When those comments were made, President Obama was thinking of making an Iran deal entirely on his own authority. If he had taken this route, it was only natural for him to concede that he could not bind his successors to his purely executive agreement.

But the constitutional situation radically changed once the President signed the Iran Act in May. When Secretary Kerry hammered out the terms of the Six Power Agreement with Iran on July 14, he could do so with assurance that the agreement had the force of statutory authorization behind it, so long as it survived Congressional review.  Professor Ku fails to point to any subsequent statement from the State Department suggesting that the Administration did not take full advantage of its new legal powers.^[1]

In any event, we should be looking at the text of the Agreement itself to determine its legal status. Once again, Professor Ku’s interpretations of the text refute, rather than confirm, his larger claim. He emphasizes that Paragraph 36 of the Agreement creates an “exit ramp” for any party confronted with “significant non-performance” by another signatory.  This is surely an important provision, but it supposes that the American commitment is indeed binding unless and until such a “significant” breach has been established.

To override this obvious implication, the Agreement could have declared explicitly that, appearances to the contrary, it was non-binding.  But no such provision exists. Contrast a recent agreement also dealing with military affairs – the 2011 Vienna Document on Confidence and Security-Building Measures – which loudly proclaims: “The measures adopted in this document are politically binding and will come into force on 1 December 2011.”

Since Professor Ku rests his textual case on Paragraph 36, he has failed to present a convincing defense of Rubio’s position. The Senator is not telling the American people that he would terminate the agreement if he soberly determined that Iran’s on-going conduct fell significantly short of its commitments. Instead, he is saying that “there is nothing” about the agreement “that is binding on the next administration.”

Other commentators have presented additional arguments – both pro and con – based on the language of the agreement. Compare here with here.  A full assessment is beyond the scope of a brief blog-post. It is enough to explain why Professor Ku’s critique entirely fails to refute our position.

^[1] Our own independent search of the record has uncovered one relevant sentence from the post-ratification period. It appears on the White House site encouraging the general public to submit petitions soliciting presidential action. This particular petition, with 322,000 signatures, asserted that “47 senators have committed treason”, as well as a violation of the Logan Act, in writing a  “condescending letter to the Iranian government stating that any agreement brokered by our President would not be upheld once the president leaves office.” We do not know who was assigned the task of preparing a brief response to this inflammatory petition. But the anonymous author refused to confront the treason charge directly, providing a discussion which emphasized Congress constructive role, and contenting itself with the observation that “The United States has a longstanding practice of addressing sensitive problems in negotiations that culminate in political commitments, including in areas of national security significance.” See here. This sentence did not engage in any discussion of the Agreement’s text, nor does it explicitly address the interpretive issues we have discussed. Given the surrounding context, it cannot be fairly construed as a serious statement from a high-level official committing the Administration to a well-reasoned position that rejects the legally binding  character of the Iran agreement.