Tag Archives: Barack Obama

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.

Source: http://www.wsj.com/articles/congress-can-respond-to-putin-with-more-sanctions-1443996688

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.

Source: http://www.wsj.com/articles/the-lawless-underpinnings-of-the-iran-nuclear-deal-1437949928

To Stop Obama’s Power Grabs, Kill the Senate Filibuster

By DAVID B. RIVKIN JR. and LEE A. CASEY, March 23, 2015 7:31 p.m. ET

The Obama administration has systematically targeted critical congressional powers, including the authority to enact laws. It has rewritten such statutes as the Affordable Care Act, the Controlled Substances Act and the Immigration and Nationality Act. And it has effectively blocked Congress’s “power of the purse”—eviscerating authorities essential to maintain the balance of power between the legislative and executive branches of the federal government.
The recent standoff over the Department of Homeland Security appropriations bill is only the latest effort by President Obama to thwart Congress’s constitutional authority to limit the president’s use of federal funds to approved purposes. The administration’s basic position is that it is entitled to get its way on all of its spending requests. Any effort to impose budget caps or appropriations riders—all traditional congressional mechanisms—is illegitimate and the cause for the government shutdown, for which Congress is to blame.

By striking at Congress’s constitutional powers, particularly the power of the purse, Mr. Obama seeks an unprecedented aggrandizement of presidential power. One way to prevent that happening is by reforming the filibuster rule.

Spending battles and government shutdowns have taken place in the past. Yet the Obama administration’s strategy, denying the very legitimacy of Congress’s use of its appropriations power, is historically unprecedented. It has been abetted by Democratic senators who deploy the filibuster to keep spending legislation that the president opposes from an up-or-down Senate vote. Their goal is to spare the president any potential political damage from casting a veto, and to allow him to shift responsibility for government shutdowns from himself to Congress—undermining the paramount constitutional virtue of accountability. This situation has particularly vitiated the authority of the House of Representatives, which originates all of the spending bills.

The constitutional balance of power between the two political branches must be restored. In this connection, it is important to understand that the Senate filibuster rule has no constitutional basis. That document does not reference a “filibuster,” but merely permits each house of Congress to determine its own procedural rules. The filibuster is a historical fluke, resulting from the Senate’s failure to impose constraints on how long senators may speak on a particular matter, thereby delaying other business and especially votes on legislation that require only a majority to pass.

Only a cloture motion, which requires a supermajority of three-fifths (60) to pass, can end these delaying tactics—and cloture has become nearly impossible to achieve because of an increasingly ideologically divided Senate in which neither party has a supermajority.

This raises fundamental issues: Since all constitutional provisions must be read in harmony, rules in one house that consistently frustrate the ordinary legislative process by preventing a vote work to nullify other key congressional powers. Ultimately, this undermines the Constitution’s balance of power between Congress and the executive.

Despite the positive role the filibuster has played by delaying improvident legislation, it has become counterproductive. And the filibuster is no longer an untouchable Senate tradition. Last year, then-Majority Leader Harry Reid abolished the filibuster for most judicial and executive-branch appointments simply to help President Obama get controversial nominees confirmed—and did so in the middle of a Senate session, in violation of the rules. There is every reason to expect that similar political expediency will lead to future limitations on the filibuster when there is again a Democratic Senate majority—which should give comfort to any Republicans who continue to support the filibuster out of respect for Senate tradition.

Tradition is important, and eliminating the filibuster, despite its diminished policy utility, would be a momentous step. Yet it is one Senate Republicans should consider taking, given the constitutional imperatives at stake. One possibility is for the Senate to adopt rules limiting the time any particular matter can be debated before a vote, thereby removing the procedural gap that permitted filibustering in the first place. Another would be to reduce the number of votes needed to carry a cloture motion to a simple majority.

Whatever the means chosen, this strategy should be decoupled from any particular policy battle. It should be undertaken only at the beginning of the next congressional session, and with appropriate explanations of the reasons for the change: It is an essential measure so that Congress can begin to reassert itself against an executive branch that increasingly acknowledges no limits on its power; an executive branch that is even considering how the president himself can raise taxes.

If legislation commanding the support of majorities in both the House and Senate can no longer be permanently delayed by filibustering, a recalcitrant president would still be able to shut down a government agency or department by vetoing appropriations. But the American people would know whom to hold responsible.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-to-stop-obamas-power-grabs-kill-the-senate-filibuster-1427153516

Obama’s Security Council Gambit

by David B. Rivkin, Jr. & Lee A. Casey, March 15, 2015

The recent open letter by 47 Republican Senators, putting Iran on notice that the US Constitution fundamentally limits the President’s ability unilaterally to conclude a durable nuclear weapons agreement, has prompted strident criticisms from both the American and Iranian officials, giving some tantalizing hints on how a “nuclear deal” with Iran will be achieved. Despite some carefully-phrased statements to the contrary, it appears that the administration plans to evade the Constitution’s clear requirement that the Senate approve all treaties by having the UN Security Council adopt a resolution implementing the deal.

Indeed, Iranians seem to have been aware of this cynical game plan for quite some time, as evidenced by strong rejoinders in the Iranian state-controlled press, which mocked the Senate letter. Meanwhile, Iranian Foreign Minister Javad Zarif stated that any nuclear weapons deal “will not be a bilateral agreement between Iran and the U.S., but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council and will also be endorsed by a Security Council resolution.” And European diplomats and UN officials also have been aware for quite some time about the administration’s Security Council gambit. Only Congress and the American people have been in the dark.

This deception aside, the Security Council-centric approach, while solving some of the Administration’s political problems, would impose very significant long-term costs on the United States, and would not ultimately achieve a binding deal that cannot be altered.

The Constitution’s framers purposely divided the treaty-making power between the president and Senate, requiring that the Senate consent to any treaty by a two-thirds supermajority, both to limit presidential power and to ensure that all such international undertakings by the United States enjoyed broad domestic support. This bedrock requirement cannot be avoided by claiming that an agreement ordering critical aspects of our relationship with another country is somehow not a “treaty,” or by reference to another treaty like the UN Charter.Read more…

Ratification of the Charter committed the United States, like other UN members, to comply with certain Security Council resolutions and those resolutions may impose binding international obligations on the United States. Specifically, Chapter VII of the Charter indicates that the “Security Council shall determine the existence of any threat to the peace. . .and shall. . . decide what measures should be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” By invoking Chapter VII, the administration intends to bypass the Senate and Congress as a whole.

The Charter, of course, does not and cannot reorder the Constitution’s division of power between Congress and the president. As the Supreme Court noted in a recent case, involving U.S. obligations to implement International Court of Justice decisions under the Charter, where it found that ICJ decisions were not automatically binding as a matter of domestic law “[t]he President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution.” Medellin v. Texas (2008)

Nevertheless, having the Security Council drive an Iranian agreement will have several deleterious legal and policy consequences. First, while the Iranian nuclear deal would not be binding on the United States as a “signatory” to the agreement, rendering Secretary Kerry’s statement to this effect technically correct but utterly misleading, it would bind the United States as a UN member.

Second, as is common with Chapter VII resolutions, the Iranian nuclear weapons resolution would keep the Council seized of the matter. This means that the resolution could be revised only by future Security Council action, which the United States cannot guarantee. For example, the United States and its allies would be unable to extend the proposed 10-year sunset provision, even if that became necessary based on Iranian conduct, since Iran would surely oppose the measure with the backing of Russia and China, who can veto any change.

This point is worth emphasizing, since the administration’s main oft-articulated reason for choosing the 10-year time frame for the nuclear deal is its belief that over this time period Iran’s regime would lose its revolutionary character and become a responsible regional power. This optimistic assumption has been strongly challenged by Israel, Saudi Arabia and other Sunni Arab states, who point out that Tehran hasn’t mellowed over the last several decades. The response by administration’s supporters has been that the United States will be able to react in the future to evolving Iranian behavior, whether positive or negative; this claim rings hollow, given the Chapter VII resolution that would enshrine the nuclear weapons deal.

And even if Iran’s own behavior is impeccable, other developments may well arise that would require changes in the agreement. For example, Saudi Arabia has indicated that it will endeavor to acquire nuclear infrastructure matching Tehran’s, thus precipitating a nuclear arms race in the Middle East and beyond. And the administration’s erstwhile priority has been to deny uranium enrichment capability to Sunni Arab states.

So, to salvage this goal, it might wish to try changing the Iran nuclear deal, and yet, having chosen the Security Council venue, it would unable to so. This is highly ironic, since the administration’s main justification for eschewing the treaty route is to preserve the President’s flexibility to change the deal on a moment’s notice, if circumstances demanding the change arise.

Third, it would be up to the Security Council to determine whether or not Iran is complying, and whether any particular violation is material. Even if the United States believes that Iran is in clear violation of its obligations, it could not suspend compliance with its own obligations unless the Security Council agreed. If it threatened to use force without Security Council approval – which remains possible as a self-defense measure under the Charter – the U.S. would certainly be branded an international lawbreaker at a tremendous diplomatic cost.

Indeed, the broader consequence of this whole approach would be to make the Security Council Iran’s powerful international protector, buttressing its ambitions as a regional hegemon and inducing Sunni Arab states to propitiate Tehran. While the Security Council has not always been responsive to US wishes—given the veto power wielded by other permanent members—Washington has at least been able to render it ineffective by exercising it own veto. The transformation of the Security Council into Iran’s ally would represent one of the most disastrous failures of American statecraft, the point that the administration seems to have overlooked.

Fourth, the international law consequences aside, the administration may well argue that a Security Council resolution binding on all UN member states, coupled with certain existing delegations of authority from Congress to the president, has a comparable domestic legal effect, giving the President authority to suspend or even cancel the statutory sanction regime now in place against Iran. Although this argument is legally flawed, it might give the administration some political cover to lift sanctions against Iran.

The administration is also likely to claim that, having dismantled U.S. statutory sanctions, it will retain leverage against Iran thru the so-called “snap back scheme,” whereby the Security Council, having vitiated some Iran sanctions entirely, will suspend the rest of them on a rolling basis. This would require the Security Council to renew the suspension every 180 days, theoretically enabling the United States to block this by exercising it veto power.

This argument, however, fails to carry the day; since the Security Council would be seized of the compliance issues, it would be exceedingly difficult for the United States to claim that Iran has violated the agreement and unilaterally block the renewed sanction suspension. Moreover, once the sanctions have been relaxed for a protracted period of time and enough Western companies have invested in Iran, re-imposing them would be ever more difficult. And, once the Iranian economy has recovered, it will become resilient to the resumption of sanctions, even if they could be re-imposed.

Overall, it is understandable why by-passing Congress and going directly to the Security Council has appeal to the president and his advisors, who are desperately looking for something that can be portrayed as foreign policy achievement and appreciate the depth and breadth of congressional opposition to any agreement permitting Iran to retain its nuclear infrastructure. But this tactic would also create tremendous diplomatic and national-security costs for the United States in the future, giving Iran the “high ground” as a victim of American lawlessness in future confrontations over its nuclear ambitions.

It would also set a dangerous precedent for future presidents, who may also be determined to achieve their foreign policy ends regardless of Congress and the Constitution’s requirements for treaty-making. This would lead to the aggrandizement of presidential power at the expense of Congress and warping of the separation-of-powers architecture, which is the primary means of protecting individual liberty in our constitutional system.

Moreover, if the purpose of using the Security Council is truly to tie the hands of a future president and Congress who may view the Iranian regime and its geo-political ambitions differently, it will not work. However binding Security Council resolutions may be on the international level, they are not “treaties” and the UN Charter – which is – is not self-executing. Thus, although the U.S. might be in violation of its international obligations, as a matter of domestic law, the president must still obtain congressional assent before he can lawfully lift statutory sanctions against Iran.

A future president could simply begin again enforcing those sanctions against Iranian assets, individuals and businesses that violate them. Perhaps even more importantly, even if the United States were to take a harder line against Iran in the future, violating the anticipated resolution, the Security Council would have to adopt a second resolution imposing enforcement measures against the United States, which the United States could of course veto.

In other words, if the administration does proceed to enshrine a nuclear-arms deal with Iran through the Security Council as a means of cutting Congress out of the process, it will not achieve its ultimate goal of a long-term agreement binding on the United States. It will merely impose additional and avoidable costs on the United States in the future when – as will almost certainly be the case – Iran again moves towards achieving nuclear power status. As a result, the administration should eschew this path and accept what the Constitution requires – Senate approval of the treaty it is now negotiating.

Messrs. Rivkin and Casey are partners at BakerHostetler LLP, specializing in constitutional litigation, and served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://nationalinterest.org/feature/obamas-security-council-gambit-12421

When bad Obama policies collide

By Elizabeth Price Foley and David B. Rivkin Jr. — Tuesday, March 10, 2015

Since its partisan passage in 2010, Obamacare has traversed a rocky road. President Obama has taken numerous executive actions to delay and modify the poorly written law in an effort to ease the political consequences of full implementation and make it work. However, in the president’s zeal to rewrite yet another area of law — immigration — he’s sabotaged one of Obamacare’s primary goals: expanding employer-sponsored health insurance.

The president’s executive actions on immigration — the major one of which is currently on hold due to a court order — confers two specific benefits upon approximately 6 million individuals who have entered this country illegally or overstayed their visas. First, they are completely exempted from deportation. Second, they are granted work permits. These unilaterally conferred benefits are powerful evidence that the president isn’t just exercising executive “discretion” by prioritizing enforcement of existing immigration law — he is rewriting it.

This massive influx of now-lawful workers will predictably reduce job opportunities for U.S. citizens and lawful residents. But beyond this obvious negative impact, granting work permits to these individuals will have a subtler, equally pernicious effect: It will encourage employers to hire these 6 million individuals over U.S. citizens and legal residents. This is due to Obamacare’s structure.

Under Obamacare, employers must pay a tax — called the “employer responsibility” tax — if they either fail to offer insurance altogether, or they offer “substandard” insurance. The employer responsibility tax is hefty, ranging between $2,000 to $3,000 per year, and is payable for every full-time employee who buys health insurance on an exchange and receives a tax subsidy as a result. The idea is to incentivize employers to offer generous insurance coverage, thus keeping workers off the exchanges, and away from tax subsidies. If no full-time worker receives a tax subsidy for buying health insurance, the employer will pay no employer responsibility tax.

Under this scheme, the “ideal” worker — in terms of minimizing exposure to the employer responsibility tax — is a worker who is incapable of obtaining a tax subsidy for buying health insurance. Who are these workers? One large category is the 6 million immigration action beneficiaries. As Homeland Security Secretary Jeh Johnson confirmed at a recent hearing of the House Homeland Security Committee, beneficiaries of the president’s immigration actions “will not be eligible for comprehensive health care, ACA.” That is, they won’t receive government subsidies to purchase health insurance.

Because the 6 million immigration beneficiaries aren’t eligible for Obamacare tax subsidies, hiring them reduces employers’ chances of triggering the employer responsibility tax. Employers have a powerful financial incentive to hire them in place of U.S. citizens and permanent residents. The president’s unilateral grant of work permits, combined with the fact that these workers cannot trigger the employer responsibility tax, makes those workers significantly more attractive.

To make matters worse, recent reports indicate that millions of U.S. citizens and lawful residents — who are eligible to receive Obamacare tax subsidies — have opted to defy the individual mandate and forego buying expensive health insurance. Under the statute, that’s supposed to trigger a tax, too, but the president has effectively gutted this provision by unilaterally creating 19 categories of exemptions, including a blanket one for “general hardship.”

Because individuals who don’t buy health insurance won’t be claiming any Obamacare tax subsidies, they — like the 6 million immigration action beneficiaries — cannot trigger the employer responsibility tax. Both of these categories of workers are more attractive to hire, because they will not, by definition, have subsidized health insurance under Obamacare. The inevitable result is that more workers will lack employer-provided health insurance coverage.

The president isn’t a one-person lawmaker. He doesn’t have the power in our constitutional regime to fix laws he thinks are broken. When a president does so, he not only intrudes on Congress’ power, but also creates unpredictable repercussions for other laws. It’s no small irony that, by unilaterally attempting to fix our immigration law, Mr. Obama has undermined his own signature legislative achievement.

Elizabeth Price Foley is a constitutional law professor at Florida International University College of Law. David B. Rivkin Jr. is a partner at the firm Baker Hostetler LLP, and served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.washingtontimes.com/news/2015/mar/10/elizabeth-price-foley-david-rivkin-jr-obamas-amnes/

Nevada’s Right Choice on Immigration

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.”

The president is, in other words, stuck with laws passed by Congress and signed into law by previous presidents. The reason for this is at the heart of America’s constitutional separation of powers—the power to make laws and to execute them are divided between separate branches of government, Congress and the president respectively.

The third branch—the judiciary—has the power to say what the law is, including when the president and or Congress have crossed the constitutional lines. It is only litigation before the courts that can now vindicate the most basic tenets of our constitutional system.

However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.

Nor is Mr. Laxalt obliged to follow Gov. Sandoval’s preference. Nevada law permits the governor to direct the attorney general to bring or defend an action in the courts. But as Mr. Laxalt explained, it also imposes an entirely independent obligation on the attorney general to take such action if he believes it necessary to secure the state’s interests.

All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a “grand bargain” among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.

The separation of legislative and executive authority is among the most important limitations on federal power. It is now up to the federal courts to restore the Constitution’s balance between the president and Congress and between the federal government and the states. Mr. Laxalt made the right choice. Those state attorneys general that have yet to join Texas v. United States of America should follow his lead.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-rivkin-and-lee-casey-nevadas-right-choice-on-immigration-1422924012

How Congress Can Use Its Leverage on Iran

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.

Iran, too, should insist on a treaty and—to ensure sanctions ultimately are lifted—on congressional involvement in the negotiations. Presidents can unilaterally terminate both executive agreements and treaties, but executive agreements carry far less weight. Presidents are more likely to revise or revoke a predecessor’s agreements or orders than they are to repudiate treaties. The Iranians have already made clear that any deal would require their parliament’s approval. It is disconcerting to see Tehran treating its legislative branch with more deference than this U.S. president is treating Congress.

Second, the entire Congress—Senate and House—should be involved. A treaty ratified by the Senate has the force and effect of law. But the current Iranian sanctions regime is so complex—having been created over decades and involving an intricate and tangled web of statutes, executive orders and implementing regulations—that only new legislation can amend or eliminate it in a manner that ensures Iranian compliance.

Presidential orders nullifying specific sanctions, such as enabling U.S. financial institutions to return to business with currently blacklisted Iranian banks, should be unacceptable to the Iranians since such actions could be reversed by President Obama’s successor. Indeed, Tehran has repeatedly expressed concern that the U.S. might not deliver on its sanctions-lifting commitments.

Third, Congress should pass legislation now clearly stating the parameters of an acceptable nuclear deal with Iran, emphasizing the need to eliminate any Iranian breakout capability. It should also put the Iranians and our allies on notice that, absent congressional approval, the president cannot deliver comprehensive and permanent relief from the existing sanctions statutes.

This would prevent the worst possible scenario: Mr. Obama makes unilateral sanctions-related commitments, on which he ultimately cannot deliver. Tehran would thus have a perfect diplomatic cover to continue its nuclear-weapons program, while casting the U.S. as the deal breaker.

The legislation should lift sanctions in stages, as Iran begins to dismantle its nuclear and ballistic-missile programs in a transparent, permanent and verifiable manner, finally complying with its own international obligations. Congress should make clear that failure to submit an agreement as a treaty will lead to the imposition of an even broader and harsher sanctions regime against Iran. The statute should impose these sanctions now, slated to go into effect by a date certain, unless Congress repeals them after reviewing the final deal with Tehran.

These standby sanctions should have no waiver provisions. Given the administration’s willful nonenforcement of other statutes it dislikes, the legislation should enable private parties to bring civil actions against sanction-busting companies and persons. They can be patterned after the private enforcement provisions in the False Claims Act, which allow private citizens to sue on behalf of the federal government.

A genuine and enforceable deal ending Iran’s nuclear programs would give the president and the United States a major foreign-policy triumph. But this is possible only with the full cooperation of Congress, which Mr. Obama needs to treat as a partner and not as an enemy to be ignored, outmaneuvered, stonewalled or steamrolled.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-how-congress-can-use-its-leverage-on-iran-1421800630