Tag Archives: Barack Obama

‘Clean Power’ Plays and the Last Stand for Federalism


Sept. 25, 2016, in the Wall Street Journal

After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way.

Even these approaches were not enough for the Obama administration to cajole the states to carry out its energy agenda. So it resolved to obliterate one of the last vestiges of the Constitution’s vertical separation of powers: the bar on federal commandeering of the states and their officials to carry out federal policy.

The Clean Power Plan is enormously complicated, but its overall approach is straightforward. Previous emissions regulations have focused on reducing emissions from particular facilities, but this one relies on shifting electricity generation from disfavored facilities (coal-fired power plants) to those the EPA prefers (natural gas and renewables). The EPA then determined what, in its view, is the maximum amount of such shifting that each of the nation’s regional electric grids could possibly accommodate and calculated the emissions reductions.

Parcel those figures out by state, factor in additional reductions due to estimated efficiency improvements at older plants, and the result is state-specific reduction targets. The states can elect to achieve those targets themselves—or, if they decline, the EPA will do it for them. “Textbook cooperative federalism,” says the EPA.

Not quite. Whether or not the states choose to implement the plan directly, it leaves them no choice but to carry out the EPA’s federal climate policy. That’s because the EPA can destroy but not create. It can regulate emissions of existing facilities, but it lacks the legal authority to facilitate the construction and integration of new power sources, which is ultimately the only way to achieve the plan’s aggressive targets.

That duty falls to the states, which the plan depends upon to carry out what the EPA calls their “responsibility to maintain a reliable electric system.” Doing nothing, as in the cooperative federalism scenario, is not an option.

So this is how the plan works: The EPA pushes coal-fired plants off the grid, and then counts on the states to ensure that the resulting reductions in capacity are matched by increases in EPA-preferred forms of power generation. State agencies will have to be involved in decommissioning coal-fired plants, addressing replacement capacity—like wind turbines and solar arrays—addressing transmission and integration issues, and undertaking all manner of related regulatory proceedings. All this to carry out federal policy.

The Clean Power Plan implicates every evil associated with unconstitutional commandeering. It dragoons states into administering federal law, irrespective of their citizens’ views. It destroys accountability, by directing the brunt of public disapproval for increased electricity costs and lost jobs onto state officials, when the federal government deserves the blame. And it subverts the horizontal separation of powers, by allowing the executive branch to act where Congress has refused to legislate.

One can only wonder what will be left of our constitutional order if the plan passes judicial muster.

The federal government would no longer be a government of limited powers, but instead be able to compel the states to do its bidding in any area. The states, in turn, would be reduced to puppets of a federal ventriloquist, carrying out the dirty work for which federal actors wish to avoid accountability. And the federal executive, in many instances, could effectively create new law by working through the states, free of the need to win over Congress.

So it is difficult to imagine a U.S. where the Clean Power Plan is the law of the land. It would not be the same country, or the same Constitution, that Americans have enjoyed all these years.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and represent the State of Oklahoma and the Oklahoma Department of Environmental Quality in their challenge to the Clean Power Plan.

Source: http://www.wsj.com/articles/clean-power-plays-and-the-last-stand-for-federalism-1474841482

Pulling the Plug on Obama’s Power Plan

President Obama’s Clean Power Plan is dead and will not be resurrected. The cause of death was hubris. As a result, the plan’s intended victims—including the national coal industry, the rule of law and state sovereignty—will live to fight another day.

On Tuesday the Supreme Court put President Obama’s signature climate initiative on hold while a lower court considers challenges brought by industry opponents and 27 states. That stay will remain in effect through the end of Mr. Obama’s presidency, until the Supreme Court has a chance to hear the case—in 2017 at the earliest. The stay sends the strongest possible signal that the court is prepared to strike down the Clean Power Plan on the merits, assuming the next president doesn’t revoke it.

Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power.

The dubious legal premise of the Clean Power Plan was that Congress, in an all-but-forgotten 1970s-era provision of the Clean Air Act, had empowered the Environmental Protection Agency to displace the states in regulating power generation. The EPA, in turn, would use that authority to mandate a shift from fossil-fuel-fired plants to renewables. The effect would be to institute by fiat the “cap and trade” scheme for carbon emissions that the Obama administration failed to push through Congress in 2009.

The legal defects inherent in this scheme are legion. For one, in a ruling two years ago the court held that the EPA couldn’t conjure up authority to make “decisions of vast economic and political significance” absent a clear statement from Congress. Thus, the EPA may have the authority to require power plants to operate more efficiently and to install reasonable emissions-reduction technologies. But nothing authorizes the agency to pick winners (solar, wind) and losers (coal) and order generation to be shifted from one to the other, disrupting billion-dollar industries in the process.

The agency also overstepped its legal authority by using a tortured redefinition of “system of emission reduction.” That statutory term has always been taken to give authority to regulate plant-level equipment and practices. Instead the EPA contorted the term to apply to the entire power grid. That redefinition, while necessary for the EPA to mount its attack on traditional power sources, violates the rule that federal statutes must be interpreted, absent a clear indication to the contrary, to maintain the existing balance of power between the federal government and the states. Federal law has long recognized states’ primacy in regulating their electric utilities, the economic aspects of power generation and transmission, and electric reliability.

Worse, the Clean Power Plan commandeers the states and their officials to do the dirty work that the EPA can’t. The agency seeks to phase out coal-fired plants, but it lacks any ability to regulate electric reliability, control how and when plants are run, oversee the planning and construction of new generators and transmission lines, or take any other of the many steps necessary to bring the plan to fruition.

Only the states can do those things, and the plan simply assumes that they will: Because, if they refuse, and the federal government forces coal-plan retirements, the result would be catastrophic, featuring regular blackouts, threats to public health and safety and unprecedented spikes in electricity prices.

The EPA defended this approach before the Supreme Court during legal arguments leading up to Tuesday’s stay order as a “textbook exercise of cooperative federalism.” But the textbook—our Constitution as interpreted by the court in case after case—guarantees that the states can’t be dragooned into administering federal law and implementing federal policy. Their sovereignty and political accountability require that they have the power to decline any federal entreaty. The Clean Power Plan denies them that choice.

No doubt the court was swayed by evidence that the states already are laboring to accommodate the plan’s forced retirement and reduced utilization of massive amounts of generating capacity. Given the years that it takes to bring new capacity online, not even opponents of the plan could afford to wait for the conclusion of judicial review to begin carrying out the EPA’s mandate.

By all appearances, that was the Obama administration’s strategy for forcing the Clean Power Plan, legal warts and all, into effect. After the court ruled last term that the EPA’s rule regulating power plants’ hazardous air emissions was unlawful, the agency bragged that the judgment wouldn’t make a difference because the plants had already been forced to comply or retire during the years of litigation. The Clean Power Plan doubled down on that approach.

It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and are counsel in the case on behalf of plan challengers. Mr. Rivkin served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/pulling-the-plug-on-obamas-power-plan-1455148680

Putin’s anti-Obama propaganda is ugly and desperate

By Paula J. Dobriansky and David B. Rivkin Jr. in the Washington Post

January 4, 2016, at 7:13 PM

Although international relations are not conducted under Marquess of Queensberry rules and political satire can be expected from one’s foes, intensely personal attacks on foreign leaders are uncommon except in wartime. While Soviet-era anti-American propaganda could be sharp, it did not employ slurs. But in recent years racist and scatological salvos against foreign leaders have become a staple of official Russian discourse.

Turkish, German and Ukrainian officials are cast as sycophantic stooges of the United States. While slamming Ankara at a December news conference for shooting down a Russian plane that violated Turkish airspace, Russian President Vladimir Putin opined that “the Turks decided to lick the Americans in a certain place.” Sergey Glaziev, a senior adviser to Putin, has called Ukrainian President Petro Poroshenko “a Nazi Frankenstein,” and Deputy Prime Minister Dmitry Rogozin compared Ukrainian Prime Minister Arseniy Yatsenyuk to “a rubber doll from a sex shop.”

The ugliest vilification campaign, however, has been reserved for President Obama. Anti-Obama tweets come openly from government officials. Rogozin, while commenting on Obama’s 2015 State of the Union address, compared Obama to a Tuzik, Russian slang for a pathetic small dog. Irina Rodnina , a well-known Duma member, tweeted doctored images of Barack and Michelle Obama staring longingly at a banana.

Nobody in Russia gets to freelance propaganda-wise. Thus, anti-Obama rants, even when coming from prominent individuals outside government, have Putin’s imprimatur. Russian media personalities, including Dmitry Kiselyov, the host of the widely viewed “News of the Week” TV roundup, often deliver racist slurs, as compiled by Mikhail Klikushin on the Observer Web magazine. Evgeniy Satanovskiy, a Russian academic and frequent guest on Kiselyov’s program, recently also referred to Obama as a “monkey,” prompting derisive laughter and applause from the audience. Meanwhile, the famous nationalist comedian Mikhail Zadornov regularly deploys the term “schmoe” — a slang Russian prison acronym for a person who is so debased he deserves to be defecated upon — alongside Obama’s name. “Obama schmoe” has become ubiquitous enough to be scrawled on the runway of Russia’s Latakia air base in Syria.

Russia’s print and electronic media channels carry stories depicting Obama as lazy and incompetent. Shops sell bumper stickers, posters, T-shirts and cardboard cut-outs with images of Obama as an ape and a chimney sweep. One Russian city held a contest inviting children to kick Obama’s cardboard image. Obama has been burned in effigy on numerous occasions, and zoo animals have been named after him, including a black piglet at the Volgograd zoo.

This despicable onslaught is not just the random venting of a narcissistic Kremlin leader but also an indispensable component of Putin’s efforts to mobilize domestic support for his policies and enhance his standing. The fact that this propaganda campaign is working — Putin and his policies remain popular — is attributable to several factors.

First, the Kremlin controls the news and entertainment media. Journalists who have refused to toe the official line have been fired, jailed or killed. This state monopoly, particularly when combined with the palpable failure by the West to communicate effective rebuttals to Russian audiences, has enabled the regime to mold Russian perceptions on every major policy issue.

Second, these propaganda themes skillfully capitalize on nostalgia felt by the Russian people about Moscow’s imperial past, which is often perceived in a highly idealized light. The repression of the Soviet and Czarist periods has been played down, and a key related theme is that Russia has always been the victim of foreign machinations and intrigue.

But Putin’s propaganda campaign also bespeaks of certain desperation. The Russian economy is in free fall, buffeted by both falling oil prices and Western sanctions. Fuel shortages and the resulting disruption of deliveries of key commodities pose a particular challenge to the Kremlin. Corruption and mismanagement are rampant and have drawn the ire of the Russian people.

There is widespread labor unrest in cities where private-sector workers have not been paid for months at a time. There also have been months of strikes by long-distance truckers protesting extortionist road fees and corruption. Even fire and rescue first responders employed by the federal Ministry of Emergency Situations have not been paid in months. That emergency personnel in such major cities (and places where revolutions have started in Russia’s past) as St. Petersburg and Moscow, with responsibilities for handling public protests, have gone without pay underscores the precariousness of Russia’s finances and the risks it is forced to incur.

Against this backdrop, and lacking either democratic or ideological legitimacy, Putin’s government is increasingly brittle. As the Kremlin doubles down on its aggressive foreign policy and increases domestic repression, it has also intensified its global propaganda efforts. Moscow has heavily invested in its broadcasting assets, with the satellite network RT being the pivotal component, giving it an unprecedented ability to reach domestic and foreign audiences.

All Americans should be outraged by the Kremlin’s messaging campaign and support a robust U.S. response. To present such a response effectively to global audiences, Congress should promptly enact bipartisan legislation proposed by House Foreign Affairs Committee Chairman Edward R. Royce (R-Calif.) and ranking Democrat Eliot L. Engel (N.Y.) to revitalize America’s public diplomacy infrastructure. Winning the global battle of ideas is an essential part of fostering a stable democratic world order. Consistent with our core values, the United States must lead in challenging Moscow’s racist propaganda and highlighting the moral narrative of democracy, tolerance, human rights and rule of law.

Paula J. Dobriansky was undersecretary of state for global affairs from 2001 to 2009 and is a fellow at the Harvard Kennedy School’s Belfer Center for Science and International Affairs. David B. Rivkin Jr. is a constitutional lawyer who served in the Justice Department and the White House under Presidents Ronald Reagan and George H.W. Bush.

Source: https://www.washingtonpost.com/opinions/putins-anti-obama-propaganda-is-ugly-and-desperate/2016/01/04/57647c48-b0c4-11e5-b820-eea4d64be2a1_story.html

Obama’s empty climate agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future.

Likewise, the president cannot unilaterally commit the US to binding emission-reduction targets. The Senate and executive branch have both understood for years that any “targets and timetables” for emissions must be put to a ratification vote. When the Senate ratified the United Nations Framework Convention on Climate Change in 1992, it extracted a promise from the George H.W. Bush administration to that effect. And when President Bill Clinton signed the Kyoto Protocol in 1997, it was failure to secure Senate ratification that blocked the U.S. from becoming a party and stopped it from becoming binding under U.S. law. In foreign-affairs law, these are extraordinarily strong precedent for the proposition that any binding reductions must be put to Congress.

The Obama administration’s solution to these seemingly intractable problems is to structure the deal as what it calls a “hybrid agreement.” Under this approach, only measures dealing with emissions reporting would be binding on parties. The rest would constitute what diplomats call “political commitments” — in other words, empty promises that are not legally enforceable. In short, the agreement will contain little in the way of substance.

That is not, however, how it will be touted to the American people. The administration, having identified the Paris agreement as a key plank of the president’s “climate legacy,” has sent a gaggle of senior officials to the negotiations and launched an all-out publicity barrage. The chief focus so far has been on the agreement’s longwinded aspirational language, including the likely-to-be-declared long-term goal of “decarbonisation of the global economy over the course of this century.” But that, like the other “commitments,” will have all the legal force of a fortune cookie message.

For those participating in the Paris talks, there should be a sense of déjà vu. The negotiations over the 2009 Copenhagen Accord marked the Obama administration’s climate-diplomacy debut, and the United States played a lead role in drafting the deal. Its key provisions? Aid payments to to developing nations and “quantified economy-wide emissions targets.” President Obama called it “meaningful and unprecedented breakthrough.” Structured to avoid the need for ratification, the accord was not legally enforceable and quickly came to be viewed, on its own terms, as a complete failure.

One that the president appears determined to repeat in Paris.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who previously worked at The Heritage Foundation, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2015/12/10/paris-climate-change-constitution-treaty-column/76676732/

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