Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at an attempt in a federal district court to allow the Senate to approve the Iran nuclear deal as a treaty, and not an executive agreement.
This lawsuit is “a request for a declaratory judgment as to the unconstitutionality of the Iran Nuclear Agreement Act of 2015, violations of the U.S. Constitution, and specific performance….A judicial ruling construing the U.S. Constitution and its treaty-ratifying process may inform the Congress…to swiftly repeal that Act and enact legislation conforming with the U.S. Constitution, and not in violation of it.”
– Excerpt from a legal filing by a lawyer for Freedom Watch, a legal advocacy group, in federal district court in Palm Beach, Fla., on August 4, seeking to block the Iran nuclear arms agreement on the theory that Congress is considering it under a constitutionally invalid procedure.
WE CHECKED THE CONSTITUTION, AND…
With the rise of the United States as a global power during and after World War II, the way the nation made commitments to other nations changed markedly. The constitutional norm, with the president and government diplomats working out formal treaties with foreign governments and then asking the Senate’s approval (by a two-thirds vote), rapidly faded.
Replacing that process was the largely unilateral one of presidential “executive agreements.” The president makes a deal with another country (or with several), and does not seek Senate ratification. One historical study has shown that, throughout the 1980s and 1990s, the U.S. entered into 6,796 agreements with other nations, but only 415 (about 6 percent) were treaties that went to the Senate for advice and consent.
Conservative members of the Senate staged a revolt against the “executive agreement” approach in the 1950s, but efforts to curtail such pacts fell short. The most that Congress has been able to do since then is to demand to be notified when each such deal has been made.
When President Obama’s aides, including Secretary of State John Kerry, and diplomats from other nations worked out the new agreement with the government of Iran to significantly slow down its work toward developing a nuclear bomb, the President initially held the view that Congress did not have to be involved at all.
Later, however, the President agreed to the arrangement that is now unfolding. Under a law passed by Congress in May, the Senate and House were given only a 60-day period to debate the agreement, and then could vote on it – but only by up-or-down votes by simple majority, which would be subject to presidential veto. Since both houses, led by Republicans, are expected to vote No on the deal, the President has been focusing on staving off a congressional override of his certain veto.
Ordinarily, the courts would play little or no role in such an arrangement. Most judges tend to think that courts generally should stay out of foreign policy disputes, and regard most such controversies to be left, constitutionally, to the political branches to work out.
But the courts would not remain on the sidelines this time, if a legal advocacy group has its way. Freedom Watch, headed by a Florida lawyer, Larry Klayman, who is widely known as one of the nation’s most active users of the courts to try to challenge federal government policies, has sued the President, and three members of Congress, in an effort to put a sudden stop to the process now underway, and to kill the Iran nuclear deal.
Filed in federal district court in West Palm Beach, Fla., the new lawsuit with Klayman as Freedom Watch’s client seeks a court order that the Iran nuclear arms deal cannot be handled by Congress in any other way than the Constitution’s mode for review and ratification by a two-thirds vote in the Senate. The Constitution, it contends, does not allow Congress to give away its treaty-reviewing role to the president in this way.
Almost as soon as the lawsuit landed on the docket of District Judge Kenneth A. Marra, the judge ordered Klayman to offer reasons why the case should remain alive, as a genuine controversy under the Constitution’s Article III. The judge noted that his court would have no choice but to dismiss the case, if Klayman is unable to show that he would personally suffer a legal injury if the review process for the Iran deal went forward, or is unable to convince the judge that how the deal is being handled in Congress is anything other than a “political question.”
Klayman has now answered, seeking to show that a direct violation of the Constitution – what he and Freedom Watch see happening now – harms him personally as a citizen, and that the legal challenge would only require Judge Marra to make the kind of constitutional interpretation that courts make all the time.
Probably the toughest test for Klayman is his attempt to prove that he has “standing” to sue, in the Article III sense of showing a personal harm, because the Supreme Court in recent years has been regularly tightening the restrictions on the right to file lawsuits in federal courts. That trend, though, has not met with universal approval among federal judges.
In another recent case that Klayman filed in federal court, seeking to challenge President Obama’s new immigration policy that relaxes deportation rules for more than 4 million undocumented immigrants, the case was dismissed for lack of “standing” for Klayman’s client, an Arizona sheriff worried about increased crime by non-citizens.
But, notably, one of the three judges on the panel, Janice Rogers Brown, filed a strong separate opinion, criticizing the spread of the “standing” barrier. The doctrine, fashioned entirely by courts as they interpreted Article III, has grown to the point, the judge argued, that it “effectively insulates immense swaths of executive power from legal challenge. Our relentless emphasis on the need to show a concrete injury caused by executive action and redressable by judicial relief makes it virtually impossible to challenge many decisions made in the modern regulatory state.”
That, of course, was in a single judge’s opinion in a case in which she and the other two judges on the panel had no choice but to follow Supreme Court rulings that have expanded the barrier.
Even so, there seems little doubt that citizen-lawyer Klayman will continue to test the limits of the right to sue, even if he is thwarted again in his attempt to scuttle the Iran nuclear arms deal.
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