The Obama administration's unprecedented lawlessness.

• Author: Cruz, Ted
• Position: Pres. Barack Obama - Continuation of III. Nonenforcement Under Previous Presidential Administrations F. Ronald Reagan and the Iran-Contra Affair through V. Conclusion, with footnotes, p. 89-115

1. Arms Sales to Iran

   After Ayatollah Khomeini overthrew the Iranian Shah and attacked the American Embassy in Tehran, the United States imposed economic sanctions and an arms embargo on Iran. (149) The signing of the Algiers Accord in 1981 lifted the U.S.-imposed trade sanctions but continued the weapons embargo. (150) Wary of Soviet influence in Iran, National Security Advisor Robert McFarlane and members of the National Security Council staff recommended reversing the United States' weapons embargo policy, on the theory that opening arms sales to Iran would counter Soviet influence. (151) The Reagan Administration turned down the proposal. (152)

   Afterwards, Israel presented similar proposals to the United States. Israel knew that Iran required missiles to contend with Iraq's tank and air superiority during the Iran-Iraq War, (153) and the Israelis wanted to strengthen Iran against Iraq. (154) In 1985, after Hezbollah hijacked TWA flight 847 and took U.S. citizens hostage, several Israeli officials and businessmen suggested that Israel could potentially use arms sales to obtain the release of American hostages in Lebanon. (155) Israel indicated that the Iranians were willing to open a dialogue, and that they believed they could influence Hezbollah to release the American hostages, but that the Iranians would require "something to show for the dialogue" and it would "probably be weapons." (156) McFarlane informed President Reagan of the possibility, and the President indicated that he was interested. (157)

   In August 1985, Robert McFarlane met with David Kimche, Director General of the Israeli Foreign Ministry. (158) According to McFarlane, Kimche made a proposal for Israel to sell 100 TOW missiles to Iran in exchange for the release of hostages, and for the United States to sell replacements to Israel. (159) When and how President Reagan responded to the idea is "quite murky" according to the Tower Commission Report. (160) McFarlane claimed that Reagan approved the deal, reasoning that "if Israel chose to transfer arms to Iran, in modest amounts not enough to change military balance and not including major weapon systems, then it could buy replacements from the United States." (161) But Secretary of Defense Caspar Weinberger recalled that Reagan rejected the deal at a meeting with Weinberger and Secretary of State George P. Shultz. (162) White House Chief of Staff Donald Regan recalled that the President was "upset" when he first learned about the sale in September-after it had taken place--and that McFarlane said the Israelis had "simply taken it upon themselves to do this." (163) Regardless of which account is to be believed, the United States went on to complete additional sales of weapons directly to Iran. (164)

   It is disputed whether the United States' arms sales to Iran violated federal statutes, such as the Arms Control Export Act. As President Obama's former State Department Legal Adviser Harold Koh wrote, the statute "left ambiguous whether the executive branch could transfer weapons abroad secretly, so long as that transfer occurred as part of an intelligence operation conducted under other laws." (165) The Independent Counsel that investigated the Iran-Contra Affair concluded that "the sale of U.S. arms to Iran [was] in contravention of stated U.S. policy and in possible violation of arms-export controls." (166)

2. Funding the Nicaraguan Contras

   The United States' arms sales to Iran resulted in profits of almost $20 million. (167) During one of Israel's attempts to broker an agreement with Iran in 1986, Israel suggested to U.S. Lieutenant Colonel Oliver North that it could send some of this money to support the Nicaraguan Contras--a group that opposed the ruling regime in Nicaragua that had aligned itself with the Soviet Union. (168)

   But in December 1982, Congress had passed the first Boland Amendment, a statute "prohibiting the Department of Defense and the Central Intelligence Agency from spending funds to overthrow Nicaragua or provoke conflict between Nicaragua and Honduras." (169) On October 3, 1984, "Congress cut off all funding for the Contras and prohibited DoD, CIA, and any other agency or entity 'involved in intelligence activities' from directly or indirectly supporting military operations in Nicaragua." (170)

   Approximately $3-4 million of the proceeds from the Iran arms sales were diverted through Israel to fund the Contras. (171) The Tower Commission that investigated the Iran-Contra Affair found "no evidence to suggest that the president was aware of LtCol North's activities." (172) In November 1986, Attorney General Edwin Meese III learned that profits from the Iran arms sales were being used to aid the Contras. (173) At President Reagan's direction, the Attorney General and the Tower Commission conducted an investigation that resulted in the firing of several individuals in the Reagan Administration, including individuals in the CIA, National Security Council (NSC), and the White House. (174)

   It is disputed whether the diversion of the Iran arms sales proceeds to the Contras violated the Boland Amendment. The Tower Commission noted that the Boland Amendment was subject to conflicting interpretations: "[S]everal of its Congressional supporters believed that the legislation covered the activities of the NSC staff," but "LtCol North and VADM Poindexter received legal advice from the President's Intelligence Oversight Board that the restrictions on lethal assistance to the Contras did not cover the NSC staff." (175) The Independent Counsel, in contrast, found that "the provision and coordination of support to the contras violated the Boland Amendment ban on aid to military activities in Nicaragua." (176)

   Ultimately, the Iran-Contra Affair provides an example of subordinates' possible lawlessness rather than clear presidential lawlessness. Although President Reagan had a responsibility, like any President, to be aware of the actions of his subordinates and to bear ultimate responsibility for them, President Reagan's actions in the Iran-Contra Affair did not exemplify a President actively suspending or dispensing with federal statutes. Moreover, President Reagan took serious steps in response to the scandal, firing those responsible and ensuring his Administration upheld the law in the future. In any event, the Iran-Contra Affair is an isolated incident involving foreign affairs, and provides no precedent for a President to categorically ignore statutes dealing with domestic policy.

   7. George W. Bush's Signing Statements

      When presidents sign bills passed by Congress, they frequently issue a "signing statement" as commentary on the new law. (177) Presidents have used signing statements to describe a bill's purpose, to advocate for a particular interpretation of a bill or one of its provisions, to criticize Congress, or to explain how the executive intends to enact or interpret a bill. (178) Frequently, the signing statement serves as a vehicle to express constitutional objections to a bill and the executive branch's accompanying intent to refuse enforcement. (179)

      Signing statements have long formed a component of executive practice, enabling the President to assert executive power preemptively as Congress passes a bill. James Monroe was the first President to sign a bill but then not enforce specific provisions of that bill. (180) Andrew Jackson, John Tyler, James K. Polk, and Ulysses S. Grant also issued statements that expressed doubts about legislation they signed into law. (181) Andrew Johnson, likewise, employed signing statements "to construe the legislation in a manner that preserved its constitutionality," as he did when criticizing part of the Public Works Appropriation Act as an unconstitutional delegation of executive power to congressional committees. (182) Franklin Roosevelt also employed the signing statement, attaching, for example, his objections and refusal to abide by the removal restrictions mentioned above in the rider to the Urgent Deficiency Appropriation Act. (183)

      Various Presidents have issued signing statements saying they would not abide by legislative vetoes. President Ford "entered no fewer than six vetoes and five signing statements criticizing the legislative veto," grounding his objections on the need to preserve the Constitution's separation of powers framework. (184) Ford explained that "legislative-veto provisions 'purported to involve the Congress in the performance of day-to-day executive functions in derogation of the principle of separation of powers, resulting in the erosion of the fundamental constitutional distinction between the role of the Congress in enacting legislation and the role of the executive in carrying it out.'" (185) President Carter likewise objected to the legislative veto via signing statement, announcing "his intention to treat legislative vetoes as 'report and wait' requirements" while challenging the constitutionality in court. (186) President Reagan also continued to use signing statements against unconstitutional legislative veto provisions. (187)

      Although the data confirm that Bill Clinton actually issued more signing statements than George W. Bush, (188) President Bush's signing statements were viewed as more controversial. One commentator noted that Bush "quietly claimed the authority to disobey more than 750 laws enacted since he took office." (189)

      But President Bush's signing statements were not mere policy objections; they were constitutional objections. According to a 2007 report by the American Constitution Society, President Bush issued 363 objections concerning his Article II authority as the unitary executive, 13 objections concerning the Vesting Clause and Take Care Clause, 147 objections concerning his authority over foreign affairs, and 76 objections concerning his Commander in Chief power. (190) To take a notable example, when Bush signed the Detainee Treatment Act into law in 2005, he included a...