Congress Can Respond to Putin With More Sanctions

By PAULA J. DOBRIANSKY And DAVID B. RIVKIN JR., Oct. 4, 2015 6:11 p.m. ET

From Ukraine to Syria, the Obama administration has consistently misread Russian President Vladimir Putin ’s objectives and the implications of cooperating with him. This has led to costly failures, but the administration is unlikely to change its approach. Congress need not sit idle too. By enacting new sanctions on Russia, U.S. lawmakers can send a strong signal to Moscow that its continued aggression against Ukraine and growing complicity in a genocidal war in Syria will come at a heavy price.

After Russia annexed Ukraine’s Crimea in 2014, the Obama administration and many U.S. allies imposed sanctions on Russian businesses and individuals. But those measures clearly haven’t been effective in discouraging Mr. Putin’s quest to exert Russian power and influence.

In Ukraine, despite the supposed cease-fire effected by the Minsk Accords negotiated by Germany, France, Ukraine and Russia, Moscow-supported aggression continues in the contested east. Russian troops remain in the region, as an extensive Sept. 14 report from the Atlantic Council documents, and Reuters has reported that new Russian military bases are being built.

In Syria, Mr. Putin, under the guise of fighting Islamic State, supports the Bashar Assad regime, which has used barrel bombs and chemical weapons in slaughtering tens of thousands of civilians, mostly Sunni Muslims—making Russia complicit in, and legally accountable for, these actions. The Obama administration over the past week has hinted that it might cooperate with Russia’s anti-ISIS campaign.

The danger of association with an aggressor like Mr. Putin, who is also working with Iraq and Iran, can be seen in Russian airstrikes over the past few days directed not at ISIS but at other opponents of the Assad regime. The Obama administration’s initial seeming openness to working with Mr. Putin in Syria has already compromised the White House’s ability to hold Moscow accountable on any front, including for its aggression in Ukraine.

Under the U.S. Constitution, the president has formidable authority for conducting foreign policy, but there are several steps—practical and symbolic—that Congress can take that would demonstrate a resolve toward Russia that hasn’t been forthcoming from the Obama administration.

On the symbolic side, Congress can legislate a finding, based on ample evidence, that the Russian military has committed war crimes in Ukraine, and is aiding and abetting the Assad regime’s genocide and Iran’s terrorism-sponsoring activities. Using the congressional bully pulpit can help drive the public debate, especially during the 2016 presidential election campaign.

Congress can also enact new sanctions that will have an immediate and profound effect—starting with the Russian oil-refining industry.

Despite Mr. Putin’s far-reaching strategic aspirations, Russia is punching well above its weight. The Russian economy continues to shrink, buffeted by falling oil prices and Western sanctions, and 2014 capital flight has exceeded $150 billion. Hundreds of Russian casualties in Ukraine are causing discontent, with Russian media reporting how Russian contract soldiers—in the part-volunteer, part-draftee military—are refusing to deploy to Ukraine or Syria. According to the Moscow-based independent polling organization Levada, fewer than 14% of Russians support military intervention in Syria.

Russia’s greatest vulnerability may be its refineries. While Russia is one of the world’s top energy producers, its refining facilities are antiquated, with low product quality, no spare capacity, and infrastructure in desperate need of significant investment. The refining infrastructure is so weak that Russia ran out of gasoline in 2011, precipitating shortages and substantial popular discontent. Russian media reported that the head of the majority-government-owned Rosneft oil company, Igor Sechin, sent Mr. Putin a letter on July 15 warning of a major shortfall in refined products by 2016-17 unless the refining sector gets emergency financial assistance.

Most of Russia’s approximately 50 major refineries date to the Soviet period. According to a 2014 report prepared for Russia’s parliament, the refiners also require a steady supply of Western, particularly American, equipment. Current U.S. sanctions apply only to new Russian oil and gas production projects. But an embargo—even if only a unilateral one by the U.S.—on exports of refinery pumps, compressors, control equipment and catalytic agents would cause widespread shortages of refined products, putting tremendous pressure on Russia’s civilian economy and Moscow’s ability to carry out military operations. The Putin regime would suffer major political damage.

President Obama might veto such refinery sanctions legislation because of its potentially drastic effect, but as Russia’s behavior becomes ever more outrageous, he might not be able to summon Democratic support as readily as he did for the Iranian nuclear deal. In any case, Congress would do well to make U.S. policy toward Russia a matter for serious discussion during an election year—and to remind Mr. Putin that with the Obama administration’s days dwindling, a significant course correction in U.S. foreign policy could be on the horizon.

Ms. Dobriansky is a former undersecretary of state for democracy and global affairs in the George W. Bush administration. Mr. Rivkin is a constitutional lawyer who served in the Justice Department under Presidents Reagan and George H.W. Bush.


A Win for Congress and a Setback for ObamaCare


Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years.

The most specious but widespread objection to the lawsuit was that Congress, as an institution, is incapable of suffering an injury serious enough to establish “standing” to sue. Critics argued that, because the Supreme Court in Raines v. Byrd (1997) denied standing to a group of six congressmen who sued President Bill Clinton over his use of the line-item veto, there is no such thing as legislative standing.

But Raines never foreclosed legislative standing; it merely denied standing to six disgruntled members of Congress who had lost a political battle with their own colleagues. Raines didn’t involve a claim of institutional injury. The House lawsuit, by contrast, was authorized by a majority vote and does claim an institutional injury. In the words of Judge Collyer, the “plaintiff here is the House of Representatives, duly authorized to sue as an institution, not individual members as in Raines. . . . That important fact clearly distinguishes this case.”

Congress is not an institutional orphan, incapable of vindicating injury to its constitutional prerogatives. Indeed, just a few months ago, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court recognized that the Arizona legislature had standing to assert its claim that a state executive commission had usurped its power to initiate redistricting. Standing existed because the Arizona legislature was “an institutional plaintiff asserting an institutional injury.”

Judge Collyer ruled that the House has standing to pursue its appropriations-related claims, but not its employer-mandate-related ones. Regarding the former, she recognized that the “genius of our Framers was to limit the Executive’s power” by reserving to Congress exclusive control over the federal purse. In her words, “Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution.”

The Obama administration contended that Congress could remedy its appropriations injury via “the elimination of funding” for ObamaCare. But as Judge Collyer noted, the administration was “apparently oblivious to the irony” of this argument, since a failure to appropriate money is, itself, an elimination of funding. She concluded, “Congress cannot fulfill its constitutional role if it specifically denies funding and the Executive simply finds money elsewhere without consequence.”

While Judge Collyer correctly permitted the appropriations claim to move forward, she incorrectly concluded that “the Employer-Mandate Theory is fundamentally a statutory argument” that merely asserts that the administration is “misinterpreting” ObamaCare. She was mistaken in asserting that other, private litigants are “free to sue” over such misinterpretation. Several private plaintiffs have already tried to litigate these misinterpretations, and federal courts in both the seventh and 11th circuits have held that they, too, lack standing.

When neither Congress nor private litigants have standing to challenge an executive’s unilateral rewriting of a statute, the executive possesses a dangerous, unchecked legislative power.

If the “genius of our Framers was to limit the Executive’s power,” as Judge Collyer wrote, by reserving to Congress exclusive control over the federal purse, the Founders were equally inspired in giving Congress exclusive control over legislation and obligating the president to “faithfully” execute such laws.

“The power of executing the laws,” the Supreme Court emphasized in Utility Air Regulatory Group v. EPA (2014), “does not include a power to revise clear statutory terms that turn out not to work in practice.” If a law has defects, fixing them lies solely within Congress’s legislative power, not with the executive branch. Disregard for this aspect of congressional power—not merely its appropriations power—also amounts to a “grievous harm on the House” sufficient for institutional standing.

As for the Obama administration’s Hail Mary claim that the House lawsuit involved a “political question” that shouldn’t be taken up by the judiciary, disputes between Congress and the executive have been decided by the courts since Marbury v. Madison in 1803. As Judge Collyer put it, “the mere fact that the House of Representatives is the plaintiff does not turn this suit into a non-justiciable ‘political’ dispute.” You could almost say the administration’s claim was ridiculous, frivolous—and, as of Wednesday, resoundingly dismissed.

Mr. Rivkin is a constitutional litigator who has served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.


A side agreement could void the Iran deal

By Mike Pompeo and David B. Rivkin Jr., September 6 2015 7:07PM in the Washington Post

The Iran Nuclear Agreement Review Act of 2015, which requires the president to submit to Congress the nuclear agreement reached with Iran, represents an exceptional bipartisan congressional accommodation. Instead of submitting an agreement through the constitutionally proper mechanism — as a treaty requiring approval by a two-thirds majority in the Senate — the act enables President Obama to go forward with the deal unless Congress disapproves it by a veto-proof margin. Unfortunately, the president has not complied with the act, jeopardizing his ability to implement the agreement.

The act defines “agreement,” with exceptional precision, to include not only the agreement between Iran and six Western powers but also “any additional materials related thereto, including . . . side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.” But the president has not given Congress a key side agreement between Iran and the International Atomic Energy Agency (IAEA). This document describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved, as well as the precise operational parameters of the verification regime to which Tehran will be subject.

This omission has important legal consequences. At the heart of the act is a provision, negotiated between Congress and the White House, freezing the president’s ability to “waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran” while Congress is reviewing the agreement.

That review period was supposed to take 60 days and is triggered the day the president submits the agreement to Congress. However, because the president failed to submit the agreement in full, as the law requires, the 60-day clock has not started, and the president remains unable lawfully to waive or lift statutory Iran-related sanctions. Indeed, since the act also provides for the transmittal of the agreement to Congress between July 10 and Sept. 7, the president’s ability to waive statutory sanctions will remain frozen in perpetuity if Congress does not receive the full agreement Monday .

Congress must now confront the grave issues of constitutional law prompted by the president’s failure to comply with his obligations under the act. This is not the first time this administration has disregarded clear statutory requirements, encroaching in the process upon Congress’s legislative and budgetary prerogatives. The fact that this has happened again in the context of a national security agreement vital to the United States and its allies makes the situation all the more serious.

For Congress to vote on the merits of the agreement without the opportunity to review all of its aspects would both effectively sanction the president’s unconstitutional conduct and be a major policy mistake. Instead, both houses should vote to register their view that the president has not complied with his obligations under the act by not providing Congress with a copy of an agreement between the IAEA and Iran, and that, as a result, the president remains unable to lift statutory sanctions against Iran. Then, if the president ignores this legal limit on his authority, Congress can and should take its case to court.

Mike Pompeo, a Republican, represents Kansas in the House and is a member of the Permanent Select Committee on Intelligence. David B. Rivkin Jr., a constitutional litigator and a senior fellow at the Foundation for the Defense of Democracies, served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.


Ignore Trump — the issue of birthright citizenship has been settled

By DAVID RIVKIN, JOHN YOO, Sept. 6 2015 in the Los Angeles Times

Donald Trump’s call to end birthright citizenship has roiled the Republican presidential primary. Jeb Bush, John Kasich and Marco Rubio embrace the traditional view that the Constitution bestows citizenship on anyone born on U.S. territory. Ben Carson and Rand Paul agree with Trump that Congress could dismantle birthright citizenship by itself. Meanwhile, Ted Cruz acknowledges birthright citizenship but seeks a constitutional amendment to abolish it.

Conservatives should reject Trump’s nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party’s greatest achievements: the 14th Amendment. Under its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is a U.S. citizen.

Although the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Congress did not draft this language to alter the concept of citizenship but to affirm American practice dating from the origins of our republic.

With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace) rather than the rule of jus sanguinis (citizenship defined by that of parents), which still prevails in much of continental Europe. As the 18th century English jurist William Blackstone explained: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”

After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery’s grave distortions of our law. In Dred Scott vs. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that anyone born in the U.S., irrespective of race, is a citizen. It also removed from the majoritarian political process the ability to revoke the citizenship of children born to members of disfavored ethnic, religious or political minorities.

The only way to avoid this straightforward understanding is to misread “subject to the jurisdiction thereof” as an exception that swallows the jus solis rule. Some scholars have argued that this language must refer to aliens, who owe allegiance to another nation and not the United States. We disagree.

Conservatives should reject Trump’s nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party’s greatest achievements: the 14th Amendment.

Proponents of “allegiance” citizenship do not appreciate the consequences of opening this Pandora’s box. Among other problems, such a standard could spell trouble for millions of dual citizens, who certainly owe allegiance to more than one country. This is not an entirely speculative concern; during World Wars I and II, public sentiment ran strongly against German Americans or Japanese Americans.

More generally, the whole notion of national loyalty is open-ended, requires person specific determinations and would put the government in the business of reviewing the ancestry of its citizens. Washington and the states would have to pour even more resources into already dysfunctional immigration and security bureaucracies that cannot even control the borders. Reading allegiance into the 14th Amendment would largely defeat the intent of its drafters, who wanted to prevent politicians from denying citizenship to those they considered insufficiently American.

As a matter of constitutional interpretation, the 14th Amendment’s reference to jurisdiction means only that the children fall under American law at birth. Almost everyone in the United States, even aliens, come within our jurisdiction; otherwise, they could violate the law with impunity. “Subject to the jurisdiction thereof” refers to discrete categories of people that American law does not govern, such as diplomats and enemy soldiers occupying U.S. territory during war. International law grants both diplomats and enemy soldiers protected status, when present on the soil of another state, from the application of that state’s laws.

At the time of the 14th Amendment’s ratification, one obvious group not subject to U.S. jurisdiction: Native Americans living on tribal lands; the tribes exercised considerable self-governance. In the late 19th century, the federal government began to regulate Indian life, substantially diminishing tribal sovereignty and in 1924 extended birth citizenship to them as well.

The 14th Amendment’s drafting history supports our reading. The Civil Rights Act of 1866, which inspired the amendment, guaranteed birthright citizenship to anyone born in the U.S. except those “subject to any foreign power” and “Indians not taxed.” If the 14th Amendment’s drafters had wanted “jurisdiction” to exclude children of aliens, they easily could have repeated the “foreign power” line.

Significantly, congressional critics of the amendment recognized the broad sweep of the birthright citizenship language. Sen. Edgar Cowan of Pennsylvania, a leading opponent, asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Sen. John Conness of California responded yes, and later lost his seat because of anti-Chinese sentiment in his state. The original public meaning of the 14th Amendment, which conservatives properly believe to be the lodestar of constitutional interpretation, affirms birthright citizenship.

Our position, finally, works no great legal revolution. The Supreme Court has consistently read the 14th Amendment to grant birthright citizenship. United States vs. Wong Kim Ark (1898) upheld the American citizenship of a child born in San Francisco to Chinese parents, who themselves could never naturalize under the Chinese Exclusion Acts. The court held that “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” It also explicitly rejected the argument that aliens, because they owed allegiance to a foreign nation, were not within the jurisdiction of the United States.

Critics of birthright citizenship respond that the Wong Kim Ark decision does not apply to the children of undocumented immigrants because Wong’s parents lived here legally. But in 1898, federal law did not distinguish between “legal aliens” and “illegal aliens,” so the court’s opinion could not turn on the parents’ legal status.

In Plyler vs. Doe (1982), moreover, the Supreme Court held 5 to 4 that the equal protection clause required Texas to provide public schooling to children of unauthorized immigrants. All nine justices agreed that “no plausible distinction with respect to the 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”

The 14th Amendment settled the question of birthright citizenship once and for all. Conservatives should not be the ones seeking a new law, or even a constitutional amendment to reverse centuries of American tradition.

David Rivkin is a constitutional litigator and served in the Reagan and George H.W. Bush administrations. John Yoo is a professor of law at UC Berkeley and a visiting scholar at the American Enterprise Institute. He served in the George W. Bush administration.


Symposium: Correcting the “historical accident” of opt-out requirements

By David Rivkin and Andrew Grossman, 27 August 2015 in SCOTUSblog

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment.

But that was a dubious assumption, for both legal and practical reasons. As a legal matter, the opt-out approach plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights. Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all – by default, it gets the money.

As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities. No union of which we’re aware presumes that workers who have declined to join it – and therefore presumably don’t support its political activities – wish to opt out from subsidizing those activities. Nor do unions presume that workers who opted out last year, the year before, etc., might wish to do so again this year – workers must go through the process of objecting every single year, except for where courts have mandated otherwise. Opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights. Other materials provided by the union often attempt to sow confusion over opting out. For example, the California Teachers Union enrollment form gives the impression that teachers can join the union without funding its political activities; the relevant checkbox, however, only concerns whether a portion of dues will be allocated to the union’s political action committee. Forms used by other unions give workers the opportunity to opt out of relatively small PAC contributions and receive a refund. In either instance, workers still pay the full subsidy for the union’s own political activities. The point of this chicanery is to confuse workers into thinking that they’ve exercised their opt-out rights when they actually haven’t. And then there’s the intimidation and harassment often leveled against workers attempting to exercise their opt-out rights.

These difficulties arise from the inherent conflict of interest in requiring a labor union to administer the procedures for workers who object to funding its own activities. Of course the unions don’t want to make it easy to opt out. As a result, the courts have been forced to constantly police unions’ grudging administration of the opt-out process. It is strange, when you think about it, that workers’ First Amendment right to be free from compelled speech and association is at the mercy of the very organizations that the workers are seeking to resist.

These issues came to a head in Knox, a 2012 decision concerning a challenge by dissenting workers forced to pay into an “Emergency Temporary Assessment to Build a Political Fight–Back Fund” intended for politicking. Because “a special assessment billed for use in electoral campaigns” went beyond anything the Court had previously considered, it gave the opt-out issue a fresh look. Applying the general First Amendment principle that “individuals should not be compelled to subsidize private groups or private speech,” it held that a public-sector union imposing a special assessment or dues increase partway through the year may not exact any funds from nonmembers without their affirmative consent.

This affirmative consent, or “opt-in,” requirement drew criticism from Justice Sonia Sotomayor (in concurrence, joined by Justice Ruth Bader Ginsburg) and Justice Stephen Breyer (in dissent, joined by Justice Elena Kagan). Justice Sotomayor agreed that the union was constitutionally required to provide an additional notice to workers and opportunity to make their choice, but she faulted the majority for (in her view) reaching beyond those issues to hold that affirmative consent was required. Justice Breyer, in turn, argued that the union had reasonably complied with the Court’s precedents by reducing the special assessment charged to workers who had already objected by the proportion of total dues that it had spent on political activities in the previous year.

Notably, neither separate opinion offered any defense on the merits of requiring workers to opt out from subsidizing unions’ political speech. Although recognizing that the majority “cast serious doubt on longstanding precedent,” Justice Sotomayor made no attempt to address the validity or correctness of that precedent. Justice Breyer deemed the majority’s approach “particularly unfortunate” because its logic seems “to apply, not just to special assessments, but to ordinary yearly fee charges as well,” which means that “the opinion will play a central role in an ongoing, intense political debate” – one that he would have the Court avoid entirely. The most he ventured on the merits of the question was that an opt-in requirement might not do much good, because “the additional protection it provides primarily helps only those who are politically near neutral.”

But even that tepid objection falls apart under scrutiny. The reality is that the burden of opt-out requirements has artificially suppressed objections. According to the Bureau of Labor Statistics, thirty-three percent of state government workers and forty-six percent of local government workers are represented by labor unions. About eight percent of those workers have declined union membership – a prerequisite to opting out of paying political subsidies. Yet polls consistently report that about a quarter of state and local employees subject to collective-bargaining agreements identify themselves as Republicans, with another thirty percent or so identifying as independent. It is no secret that unions’ political expenditures overwhelmingly favor the Democratic Party and its candidates – for example, ninety-eight percent of the American Federation of Teachers’ donations go to Democrats. This means that, due to opt-out requirements, more than three million public-sector workers are paying to subsidize a political party that they have refused to join, with one million of those workers identifying as members of the opposing party.

So far as we’re aware, there isn’t any good argument in favor of requiring employees to bear the often-considerable burden of objecting so as to avoid paying into labor unions’ political coffers. But there is an honest one. In a moment of candor, a teachers’ union explained in litigation that it favors opt-out requirements because they allow unions to “take advantage of inertia on the part of would-be dissenters who fail to object affirmatively.” In fairness, one can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

But it’s more difficult to understand how such a scheme could ever withstand the careful application of First Amendment principles.

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.


The Lawless Underpinnings of the Iran Nuclear Deal


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.

Last week the U.N. Security Council endorsed the Iran deal. The resolution, adopted under Chapter VII of the U.N. Charter, legally binds all member states, including the U.S. Given the possibility that Congress could summon a veto-proof majority to block the president’s ability to effect sanctions relief, the administration might be unable to comply with the very international obligations it has created. This is beyond reckless.

On March 11 Secretary of State John Kerry defended the administration’s decision not to take the treaty route with Iran, saying it had “been clear from the beginning we’re not negotiating a legally binding plan.” The Security Council gambit has enabled the administration, without Senate consent, to bind the U.S. under international law.

The U.N. Charter resolution has trapped the U.S. into a position where it can renounce its obligations only at the cost of being branded an international lawbreaker. The president has thus handed the legal high ground to Tehran and made undoing the deal by his successor much more difficult and costly.

Yet the nuclear agreement’s legitimacy in international law is far from clear. The Convention on the Prevention and Punishment of the Crime of Genocide imposes an affirmative obligation on all convention parties to prevent genocide and threats of genocide. Iran remains publicly committed to Israel’s elimination, an unequivocal threat of genocide in violation of the Convention.

Since nuclear weapons delivered by ballistic missiles are the most likely means by which Iran could implement its genocidal policy, an agreement that calls for lifting the Security Council resolutions banning the sale of ballistic missiles to Iran after eight years—as this nuclear deal does—also seems to contravene the genocide convention.

A further legal complication: Even if Congress doesn’t vote to bar President Obama from lifting sanctions on Iran, the president still wouldn’t be able to deliver fully on the deal’s unprecedented sanctions-lifting commitments. They were promised regardless of any future Iranian aggression in the region, sponsorship of terrorist acts or other misconduct.

Some of the U.S. statutes allow the president to lift certain sanctions on Iran. But many of the most important sanctions—including sanctions against Iran’s central bank—cannot be waived unless the president certifies that Iran has stopped its ballistic-missile program, ceased money-laundering and no longer sponsors international terrorism. He certainly can’t do that now, and nothing in the deal forces Iran to take either step. The Security Council’s blessing of the nuclear agreement has no bearing on these U.S. sanctions.

The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.

That leaves the states free to impose their own Iran-related sanctions, as they have done in the past against South Africa and Burma. The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel.

For now, though, we are left with another reminder from the administration that brought ObamaCare: Constitutional shortcuts almost invariably lead to bad policy outcomes.

Messrs. Rivkin and Casey are constitutional lawyers at Baker Hostetler LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.


Taking the Iran Deal Disaster Seriously

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.

Second, even if international sanctions can somehow successfully be “snapped back,” as the Obama administration claims, it is far from clear whether our allies will follow—even after the case is made to them. They most certainly will not blindly follow some inauguration day stunt and put themselves in violation of their international obligations too. While the United States can, of course, lawfully proceed with unilateral sanctions, this would not be an optimum approach. Nor will threatening at the outset to sanction the banks, other businesses and citizens of third countries, including our key allies, for continuing to deal with Iran help the United States convince its allies to reinstitute these programs. Unilateral U.S. action should be our last, not first, response.

Moreover, it has taken nearly forty years of various sanctions regimes, and at least a decade of intense and nearly complete sanctions, to give the United States and its allies the leverage they now have. That leverage cannot and will not be restored overnight. As a consequence, if the Iran deal is renounced by the United States on the new president’s first day in office, the certain result will be an Iran free of both sanctions and whatever obligations it has undertaken, and the United States isolated and humiliated. Everyone can agree that this is not the way to serve the country’s interests, or to begin a successful presidency.

In addition, simply renouncing the deal and imposing sanctions cannot end Iran’s regional and global ambitions—nuclear and otherwise. Iran’s nuclear program—for obvious reasons—has been the most important issue in that country’s relations with the West, but it is very far from the only issue. Iran remains one of the most prolific state-sponsors of terrorism in the world. It has and will certainly continue to seek hegemony in the Middle East, to deliberately destabilize its neighbors and other states in the region, and to promote ballistic missile proliferation and human-rights abuses throughout the Near and Middle East and beyond.

Only a comprehensive strategy, led by the United States and supported by our major allies, can neutralize Iran’s malign activities, and this will take time. In particular, that program must take into account the views and interests of U.S. allies in the region, including Israel and those Arab States that understand and fear Iran’s ambitions and capabilities.

Finally, a simple renunciation of the Iran deal will involve the inevitable risk of a military confrontation with Iran, perhaps a confrontation in which the United States would be unable to count on many allies beyond Israel. Like potential international opprobrium, this may be inevitable. However, no responsible president would set foot on that path without first having a sound national-security team in place and reviewing the military options and the nation’s capabilities at that time. A president who has pledged simply to abrogate the Iran deal on his first day in office, and who then decided to behave responsibly and make these assessments, will be seen as having “backed down” even before his first full workday. There simply is no reason to do this. Such an action certainly cannot be justified as a matter of sound statecraft and is nothing more than an opportunity for some pre-primary chest thumping.

President Obama has negotiated a bad deal, and he very likely will impose this deal on the country. The next president will have to clean up the mess, but must do so through a considered and measured strategy that actually has some real chance of success.

David B. Rivkin, Jr. and Lee A. Casey are constitutional lawyers at Baker Hostetler, LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. Rivkin is also a Senior Fellow at the Foundation for The Defense of Democracies.