At Opinio Juris, Bruce Ackerman and David Golove have a response to Julian Ku's criticism of their earlier article. Professor Ku has further thoughts, with support from David Moore (BYU). The issue is whether Congress approved the Iran deal in its May 2015 legislation, thus making the deal a binding congressional-executive agreement rather than (as generally has been assumed) a nonbinding political commitment.
Here's the full exchange:
Can the Next President Repudiate Obama's Iran Agreement? (Ackerman and Golove)
President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One” (Ku)
The Lawless Presidency of Marco Rubio–A Reply to Professor Ku (Ackerman and Golove)
Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal (Ku)
A Presumption Against Authorization in the Iran Nuclear Agreement Review Act (Moore)
I'm sticking with my prior conclusion that Professor Ku has it right. But I'm more interested in Ackerman & Golove's theory of statutory interpretation, which they don't make clear. A purposivist view (or one even mildly influenced by context) would surely conclude that Congress did not intend to authorize a binding agreement with Iran. As Professor Ku and I have pointed out, the context was that the President was expressly pursuing a nonbinding agreement on his own authority, and Congress wanted to be sure it had the opportunity to review any such deal before it went into effect (or, strictly speaking, Congress wanted to opportunity to review the lifting of U.S. sanctions pursuant to a nonbinding deal). Republican opposition to any deal with Iran, or at least one without a very strict verification regime, was widespread. The idea that a Republican-dominated Congress would authorize the President to enter into a binding deal with Iran, subject only to a congressional review and disapproval that could be vetoed, is absurd. (And doubly absurd that they would have done this with anyone commenting on it). This context is surely enough to show that the text of the statute is (at best) ambiguous, and that the ambiguity is best resolved against congressional authorization of a binding agreement. (See Chief Justice Robert's majority opinion in King v. Burwell, the recent Obamacare case, using context and purpose to identify and resolve statutory ambiguity).
But perhaps Ackerman and Golove are Scalia-like literalists who would enforce the plain text of the statute in defiance of the enacting Congress' obvious intent. (I don't recall them praising Scalia's dissent in King v. Burwell, though). Even so, their argument fails. As Professor Ku points out, nothing in the statute authorizes anything. In particular, the text does not authorize the President to enter into an agreement (binding or not). Ackerman and Golove do not identify any specific text that accomplishes what they say the statute accomplishes. Rather, they rely on its implication: the statute contemplates that an agreement will be made by the President, and that pursuant to that agreement sanctions will be lifted unless Congress disapproves. But, if we are going to be literal about this, recognizing that an agreement is going to be made is not the same as authorizing it. A statute might recognize an agreement authorized by some other source (such as independent presidential authority), or it might try to regulate an agreement Congress thought unauthorized.
True, one could say that the statute authorizes the agreement by implication (I take it this is really what Ackerman and Golove are saying). But understanding the statute's implication requires looking at its context. And looking at the context takes us back to the earlier discussion. At minimum, the context was that the President did not seek authorization, and Congress understood that the President planned to proceed with the agreement on his independent authority. In that context, it should be clear that the statute is an attempt to constrain the President's exercise of his independent power, not an attempt to give him more power.
In sum, you can try to discern Congress' purpose, or you can follow the text regardless of purpose, but neither approach gets Ackerman and Golove where they want to be. Their argument rests on a speculation as to purpose, oddly divorced from the best evidence of what the purpose actually was. The argument only works (sort of) because they aren't clear about their interpretive approach.
Posted at 6:30 AM