At NRO, Marco Rubio repeats his determination to terminate the nuclear deal with Iran:
… [A]s president I will scrap this fundamentally flawed deal. Instead, I will reimpose the sanctions that President Obama waives and will impose crushing new measures targeting all of Iran’s illicit behavior. Rather than cutting deals with a regime with American blood on its hands, I will pressure Iran on all fronts across the Middle East. I will increase support to our allies in the region that are on the frontline of Iran’s nefarious activities.
Via Elizabeth Price Foley at Instapundit, who adds:
But as Bruce Ackerman and David Golove recently argued in The Atlantic, liberals/progressives (ironically) assert that repudiation by a Republican President would violate Article II, section three’s command that the President “take care that laws be faithfully executed.”
This argument is specious, as [the Corker-Cardin bill passed prior to the deal] was not an expression of approval of the Iran deal, but instead a decision by Congress not to approve of the Iran deal as a treaty (as it should, constitutionally, have been handled). Since Congress has never “approved” of the Iran deal by majority vote, a future President that chooses to repudiate the deal could hardly be characterized as failing to “faithfully execute” a law enacted by Congress.
I agree — most importantly, because the Iran deal is a nonbinding political commitment (as the State Department recently confirmed) and therefore (obviously) isn't part of the supreme law of the land even if Congress approved it. (Ackerman and Golove wrote their article before the administration made it clear that the agreement was nonbinding).
But on further reflection I think the Ackerman/Golove argument is misconceived in a more fundamental way. Even if the agreement were binding, and even if Congress had authorized the President to enter into it, that still would not make it part of domestic law. When Congress approves a prospective agreement in advance, it authorizes but does not require the President to enter into it. Assuming Congress' action is constitutional, that makes the President's action in entering into the agreement constitutional. But that does not make the agreement part of supreme law. The only thing that is part of supreme law is Congress' statute giving the President power to enter into the agreement. Nothing in Congress' authorization prevents the President (or a future President) from changing course and repudiating the agreement. Repudiating the agreement would violate international law (assuming the agreement is binding), but it would not violate the authorizing statute, which does not require the agreement in the first place and says nothing about whether an agreement must be kept in place.
Posted at 10:31 PM