Expanding the executive branch's foreign relations power: an analysis of the Iran nuclear agreement.

• Author: Korn, Adam B.

"The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." (1)

1. INTRODUCTION

   One of the most important aspects of the U.S. Constitution is the establishment of three separate but equal branches of government, and the division of the power to manage foreign relations among the branches. (2) As a result of the Obama Administration's successful passage of the 2015 Iran Nuclear Agreement (Agreement), the executive branch has potentially assumed some of the Senate's constitutional power. (3) This Agreement lifts economic sanctions against Iran, with the expectation of curtailing the Iranian nuclear program. (4) The magnitude of this Agreement on the international stage cannot be understated: With the passage of the Agreement, more than $ (100) billion will become available to Iran. (5)

   While this Agreement will have significant foreign policy repercussions as the United States attempts to reposition itself in the Middle East, its impact on our domestic political structure is worthy of even greater legal analysis. (6) The manner in which the Agreement was implemented establishes a potential precedent that could significantly alter how future international agreements take effect. (7) President Obama likely acted against the will of Congress when he instituted the Agreement, which raises important constitutional questions in light of Youngstown Sheet & Tube Co. v. Sawyer (8Youngstown), United States v. Curtiss-Wright Export Corp. (9Curtiss-Wright), and other judicial precedent. (10)

   Per the U.S. Constitution, two-thirds of the Senate must vote in favor of a treaty for it to be approved. (11) Due to unique voting procedures, however, the Agreement was implemented with the support of only forty-two senators and without Congress's direct affirmation. (12) The forty-two senators who supported the Agreement prevented the Senate from casting a formal vote to either approve or deny the Agreement. (13)

   This Note examines the executive branch's role in enacting agreements with foreign nations, and considers how the Agreement alters the delicate balance of power between the executive and legislative branches. (14) Part II.A presents the Madisonian perspective on the division of the federal government's power to manage foreign affairs between the executive and legislative branches. (15) Part II.B outlines Supreme Court precedent concerning the scope of executive power with respect to foreign affairs. (16) Part II.C traces the implementation of sanctions against Iran by the United States between 1979 and 2008. (17) Part II.D discusses the implementation of additional sanctions against Iran during President Obama's presidency and the subsequent enactment of the Agreement. (18)

   In Part III.A, this Note argues that President Obama should not have implemented the Agreement without the support of a majority of Congress. (19) Part III.B asserts that President Obama's actions in implementing the Agreement were unconstitutional. (20) This Note concludes by maintaining that President Obama's unconstitutional implementation of the Agreement jeopardizes the separation of powers that is essential to the constitutional structure of the U.S. government. (21)

2. HISTORY

   1. The Madisonian Perspective on the Power to Conduct Foreign Affairs

      The Framers of the U.S. Constitution created a government with three coequal branches. (22) In doing so, they hoped to establish a system of checks and balances, preventing the types of abuses that might occur if all governmental powers were to be concentrated in a single branch. (23) In the Federalist Papers, Hamilton examined the necessity of requiring legislative support for the executive branch to enact treaties. (24) Hamilton noted that once enacted, treaties have the force of law, and the Union would benefit from the executive and legislative branches working together to formulate and implement such treaties. (25) Hamilton explained in the Federalist No. 47 that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny." (26) Scholars who advocate for a stronger legislative branch have cited Federalist No. 47 to argue for congressional authority to regulate functions that could fall exclusively within the executive branch. (27)

   2. Examining Supreme Court Jurisprudence Concerning the Scope of the Executive Branch's Power to Manage Foreign Affairs

      In 1934, Congress passed a resolution that prevented the United States from selling arms to Bolivia or Paraguay. (28) After the resolution's enactment, President Franklin D. Roosevelt issued a proclamation in support of it, but he revoked the resolution less than a year later. (29) In Curtiss-Wright, the Curtiss-Wright Corporation was charged with violating the arms embargo. (30) Because President Roosevelt revoked the embargo, the Curtiss-Wright Corporation argued that the revocation compelled the dismissal of all charges. (31) In deciding the case, the Supreme Court set the high-water mark of executive power, holding that the President alone has the power to speak as a representative of the nation in negotiating with foreign nations. (32) The Supreme Court did not, however, give the President the power to implement treaties unilaterally. (33)

      In Goldwater v. Carter, (34) the Supreme Court refused to consider the question of whether President James E. Carter acted against the will of Congress when he unilaterally ended a treaty between the United States and Taiwan. (35) Members of the Senate brought the case and argued President Carter's termination of the United States's defense treaty with Taiwan was unconstitutional because it lacked congressional approval. (36) Concurring in the judgment, Justice Rehnquist, believing the issue before the Court to be a political question, argued that if an Article III court decided such a question, it could create a significant disruption among the three branches of government. (37) In another concurring opinion, Justice Powell argued that the political question doctrine did not render this issue nonjusticiable, but that the Court should not address the issue because it was not ripe for review. (38)

      Notwithstanding the Court's holdings in Curtiss-Wright and Goldwater, Youngstown has provided the framework for analyzing the President's power to conduct foreign relations vis-a-vis congressional oversight. (39) In Youngstown, the Court considered whether President Harry S. Truman could order the seizure of privately operated steel mills during the Korean War without congressional authority. (40) President Truman, concerned about an imminent labor strike's potentially disastrous effect on the war effort, seized the steel mills and placed them under government control. (41) The Supreme Court held that President Truman exceeded his constitutional authority because he did not have congressional approval to seize private property. (42)

      While Youngstown's majority opinion had immediate consequences, it is Justice Jackson's concurring opinion that continues to play an influential role in analyzing the President's power to conduct foreign affairs. (43) In Youngstown, Justice Jackson created a tripartite test for use in determining presidential authority with respect to foreign affairs. (44) Justice Kennedy has lauded Justice Jackson's concurrence in Youngstown as a preservative of the country's checks and balances system. (45)

      Justice Jackson's tripartite test states that when the President is acting pursuant to the express or implied will of Congress, his or her "authority is at its maximum." (46) When the President acts neither pursuant to the will of Congress nor against Congress, he or she may rely only on his or her "independent powers." (47) When the President acts against the express or implied will of Congress, his or her power is at its lowest, and the President can only rely on his or her authority minus the authority of Congress to act. (48) If a President's actions fall within the third category of Justice Jackson's test, they are likely unconstitutional and should not be upheld. (49)

      In Dames & Moore v. Regan, (50Dames) the Court examined the constitutionality of a deal between the United States and Iran to secure the return of hostages seized from the U.S. Embassy in Tehran. (51) The Court applied Justice Jackson's tripartite test in holding President Carter's actions constitutional. (52) The first issue was whether Congress gave President Carter the authority to issue Executive Order 12,294, which ordered the termination of all lawsuits in U.S. courts against Iran, and required arbitration as the method of resolving these disputes. (53) Even though the Court held that the International Emergency Economic Powers Act (IEEPA) did not give President Carter the authority to suspend claims against Iran in the United States, the Court concluded that President Carter's actions fell into Justice Jackson's second category because he had been granted this authority through congressional acquiescence. (54) The Court further held that President Carter could unfreeze Iranian assets held in the United States because Congress explicitly authorized such action. (55)

      In Zivotofsky v. Kerry (56) (Zivotofsky II), the Supreme Court yet again used Justice Jackson's test to analyze an ongoing dispute between the legislative and executive branches. (57) Zivotofsky II examined whether Congress could enact a statute that orders the executive branch to recognize Jerusalem as the capital of Israel on U.S. passports. (58) Originally entitled Zivotofsky v. Clinton (59) (Zivotofsky I), the Court ruled it could hear the case despite arguments that the key issue was a political question and nonjusticiable. (60)

      In Zivotofsky II, the Court held that Congress could not order the...