Day: September 3, 2015

By Robert B. Sklaroff, M.D. and Lee S. Bender, Esq.

When Congress returns from recess after Labor Day, one of the most pressing issues on the agenda is the Joint Comprehensive Plan of Action (JCPOA), known commonly as “the Iran deal.” Much has been discovered since the Corker-Cardin-Menendez bill was enacted, including the White House’s and State Department’s deceit without which the Senate likely would not have abandoned its constitutionally-provided role regarding treaties.

Now it might take a lawsuit spearheaded by Senate Majority Leader Mitch McConnell (R-KY) to reverse not only the damage to the Constitution but also potential military damage to America and our allies as a result of the provisions of the Iran nuclear-deal.

Senate Majority Leader Mitch McConnell has overwhelming justification to sue President Obama over the JCPOA, which is actually a treaty and thereby must be ratified by a 2/3-vote of those senators present prior to implementation.

Such a suit could ultimately prompt the Supreme Court to disclaim Obama’s portrayal of this document as an “executive agreement.” It could also sustain the overwhelming will of the American people–according to polling data—to trash this “legacy” effort, for reasons that have been exhaustively detailed.

Blocking implementation of the Iran nuclear-deal would thereby necessitate the legislative branch triggering a confrontation between the judicial and the executive branches.

Two essays {authored by RBS} published in The Hill explored the legalities of this initiative, focused on its “treaty” [July 29] and “rule-of-law” [August 25] components.

In the interim [USA Today, August 5], Professor Alan Dershowitz recognized that a Supreme Court opinion challenged the president’s power to enter into long-term deals with foreign powers without the consent of Congress. A president cannot avoid congressional oversight by simply declaring an important deal with foreign powers to be an executive agreement rather than a treaty [Gibbons v. Ogden]: “[G]eneral and permanent commercial regulations with foreign powers must be made by treaty, but…the particular and temporary regulations of commerce may be made by an agreement of a state with another, or with a foreign power, by the consent of Congress.”

Two other authors, legal-authority Andrew C. McCarthy [National Review Online, July 17] and accomplished-author Caroline B. Glick [Jerusalem Post, July 21] also claimed the deal is a treaty, but neither of these columnists nor Dershowitz proposed a remedy that would halt this out-of-control Obama Administration. Writer Jerry Gordon has comprehensively detailed “How Best to Overturn the Iran Nuclear Pact” [New English Review, August].

The drip-drip-drip of news about details of the deal as well as “secret” side arrangements that has emerged this summer congeals into two major rationales for such litigation, addressing both specifics and lack of transparency. Leaks unveiled multiple side-deals between Iran and the IAEA that satirize the concept of “anytime, anywhere surveillance” but, perhaps more important, Obama and his cabinet-members “inexplicably” failed to reveal this information to Congress as secrets. Moreover, the Administration also misled Congress and the American public about the nature of the deal and the resulting preservation of Iran’s nuclear infrastructure and right to continue advanced research that will facilitate a bomb when the pact expires in a mere decade to 15 years.

The “legislative intent” of the Corker-Cardin bill (Iran Nuclear Agreement Review Act of 2015) was focused exclusively on Iran’s nuclear program, contrasting with the final pact the Administration concluded lifting conventional-weapon sanctions. Iran sought—and was granted—this specific concession reportedly at the very end of the negotiations. This was outside what the Administration had originally advised Congress about the parameters of this deal: that it was focused solely on nuclear-weapons capability and not conventional weapons (or ICBMs). Thus, the final version of the Iran nuclear-deal encompassed issues, such as weaponization, that the Administration did not disclose to Congress before it debated and passed the Corker-Cardin Bill.

(Other facets of the negotiation were also misrepresented by the Obama Administration prior to when Kerry inked the deal. For example, although release of American prisoners was not ultimately achieved, Deputy Secretary of State Antony Blinken testified before the Senate Foreign Relations Committee on January 21, 2015 that the Administration’s negotiators “continue to insist” that Americans held in detention be released.) John Bolton recently elucidated additional major concessions (National Review, August 24).

This deception started before the Corker-Cardin Bill was passed in May. It was even maintained by Iran when the Tasmin News agency reported [June 15] “Secretary of Iran’s Supreme National Security Council (SNSC) Ali Shamkhani reiterated that negotiations between Tehran and six major world powers solely focus on nuclear topics, dismissing any talk of military subjects in the talks.”

Evidence of the ongoing deception was manifest when Defense Secretary Ashton Carter and Chairman of the Joint Chiefs of Staff Martin Dempsey testified during a Senate Armed Services Committee hearing on July 7—only one week prior to when the deal was signed [July 14]—that the arms embargo, pursuant to Security Council Resolution 1929, was not to be lifted.

Thus, overall, absent the ability to review all relevant data, the Senate (1)—cannot render an informed judgment, consistent with its “advise/consent” role, and (2)—cannot be viewed to be facing a 60-day deadline, for the Corker-Cardin Bill mandates that this “clock” start “ticking” only after the database has been completed.

Refusal to provide copies of side-agreements to Congress continues unabated, as per testimony on August 5 by chief-negotiator Wendy Sherman and IAEA Director General Yukiya Amano. We now know why normally-sedate Senator Corker exploded (“We cannot get him to even confirm that we will have physical access inside of Parchin”) because such inspections have been serially outsourced by Obama to the IAEA and then, we learned more recently, by the IAEA to Iran.

The “toughest inspections-regime in history” forces America (and the world) to allow Iran to provide proof that Iran is not making nukes in Iran.

Perhaps more ominous is the dismissive posture adopted by Secretary of State Kerry [July 28] when confronted by Rep. Brad Sherman (D-CA) during a House Foreign Affairs Committee hearing. The innocent hypothetical was unambiguous: Would he “follow the law” governing existing congressional sanctions if Congress voted to override a veto? Kerry’s elitist reply challenged the rule-of-law: “I can’t begin to answer that at this point without consulting with the President and determining what the circumstances are.”

Could Obama go rogue?

The ability of the Supreme Court to exercise “judicial review” is rooted in the Supremacy Clause, was affirmed in 1803 [Marbury v. Madison], and has never been tested again.

But, because the Supreme Court does not command any enforcement capability the remedy for potential lawlessness is unclear. Indeed, this concern would extend to any nullification effort by the President related to the prospect that the Supreme Court would declare the Iran-Nuclear Deal to be a “treaty” rather than the “executive agreement” the President has potentially improperly considered it to be, to skirt congressional oversight and approval.

These concerns were predicted [May 7] and corroborated [July 23] in essays that presage the current crisis [by RBS, both published in The American Thinker]. They were confirmed in an e-mail exchange by noted constitutional scholar, Dr. John C. Eastman [the Henry Salvatori Professor of Law & Community Service at the Dale E. Fowler School of Law at Chapman University and Founding Director of The Claremont Institute’s Center for Constitutional Jurisprudence]: “First, because only a ‘treaty’ is the Supreme law of the land, a mere executive agreement could not overturn statutorily-imposed sanctions,” Eastman wrote in an e-mail. “And neither, in my view, could a change in the constitutionally-mandated default rule for adopting a treaty. Second, if that is true, then members of the Senate who, collectively, had the votes to prevent ratification of a treaty would have standing to challenge the process that negated their vote. That’s the Coleman v. Miller case on all fours.” This 1939 landmark decision ensured that Congress was empowered to specify a deadline by which an external entity was to affirm proposed legislation, such as a Constitutional amendment.

The Ottoman-Islamic defeat at the “Gates of Vienna” in 1683 is on the verge of being reversed by Obama/Kerry and their P5+1 partners, again in Vienna. The irony is that the West is validating Iranian-Islamic supremacism. It seems only the U.S. Senate can rescue (Judeo-Christian) Western Civilization from the Administration’s collaboration and perfidy.

The Senate must definitively impose a limit to the President’s executive lawlessness before a constitutional crisis erupts. Resolution by the courts may be the most effective way to check and to balance the scales that Obama has usurped.

Robert B. Sklaroff, M.D. is a physician-activist and may be contacted at rsklaroff@gmail.com. Lee S. Bender, Esquire, is an attorney, activist and co-author of the book, “Pressing Israel: Media Bias Exposed From A-Z.”

Sue Obama To Stop Iran Deal