Guest Post: A Presumption Against Authorization in the Iran Nuclear Agreement Review Act

[David H. Moore is a Professor at the J. Reuben Clark Law School, Brigham Young University.]

Professors Ackerman and Golove, on one hand, and Professor Ku, on the other, disagree over whether the Iran Nuclear Agreement Review Act provides statutory authorization for the recent Iran Deal. The resolution of this question bears on whether a future President may unilaterally withdraw from the Deal. Both sides begin and end their analysis in the text, purpose, and history of the Act. At the outset, however, the authorization inquiry should face a presumption against authorization.

Analysis of presidential power questions is stacked in the President’s favor. As the Supreme Court has repeatedly explained, the President acts lawfully when supported by constitutional or congressional delegations of power. Defining the President’s constitutional powers presents difficult and far-reaching questions such as the meaning of the Vesting Clause and the distribution of war powers. Accordingly, the Court has an incentive to decide presidential power cases by reference to Congress.

Applying Justice Jackson’s framework, the Court upholds presidential action, with very rare exception, if the President acts with congressional approval. If Congress has remained silent, the President, and perhaps more importantly, the Court sits in a twilight zone in which Jackson’s analysis provides little to no guidance as to the legality of the President’s conduct. If Congress disapproves the President’s action, the President’s power is at its lowest ebb. The President will lose unless, as in Zivotofsky, the President possesses an exclusive power to perform the challenged actr. But to find exclusive power, the Court must engage those difficult constitutional questions. Thus, the easiest way to resolve a case is to find congressional approval. As Dames & Moore illustrates, the Court will sometimes scratch hard for evidence of authorization. The President exploits this dynamic by avoiding Congress and cobbling together evidence of congressional approval. Reliance on the 2001 Authorization for the Use of Military Force to combat ISIS is, in my mind, a good example.

Further, even if a statutory authorization is clear, it is suspect. As I have discussed here, Congress has a variety of reasons to delegate power to the President against institutional interest. Reelection concerns, for example, might motivate Congress to affirmatively delegate foreign affairs decisions to the President to leave time to focus on domestic matters that are more salient to constituents.

The aggregation of these dynamics means that assessing the legality of presidential action by reference to Congress tends toward the expansion of presidential power. One way to check this expansion is to begin the search for congressional approval with a presumption against authorization. Applying such a presumption to the Iran Nuclear Agreement Review Act would render Professor Ackerman and Golove’s interpretation, and similar arguments for congressional approval, even more suspect than Professor Ku asserts.