Eugene, some may recognize here, is a fantastic mind on lawyer issues, international law. Here he doesn’t disappoint either.
The Volokh Conspiracy
A two-pronged litigation strategy for Iran sanctions suspension
Both Congress and the States have an important role to playing in ensuring judicial review of the legality of any Iran sanctions relief. Congress must sue to assert its constitutional prerogatives. States, on the other hand, should continue to enforce their existing sanctions, because Corker-Cardin has not authorized sanctions relief by the President.
By Eugene Kontorovich September 13
Previous posts have discussed the jurisdictional and statutory questions involved in possible judicial challenges to sanctions relief pursuant to the Joint Comprehensive Plan of Action. Here I will sketch what seems to me the most effective way of ensuring prompt judicial review of these issues – a two-pronged litigation strategy involving both Congress and the several states. At the end, I’ll return to some questions about congressional standing in response to insightful comments by Prof. Josh Blackman.
The first step would be for the House to challenge any sanctions relief declared by the President. Such a case raises novel and complex standing questions. While a recent D.C. Federal court decision opens the door to such suits, it is not clear how wide, and the House may be found to not have standing. Yet even in such a situation, the suit could be important.
Even if a House suit fails on standing grounds – and there is no disgrace in a case not being judicially revieable – it would help shape judicial perceptions of the equities of subsequent suits involving states, where standing will not be in question. That is, the House’s vigorous assertion in court of a separation of powers violation, even if not ruled on, could give added credibility to subsequent separation of powers claims in litigation involving the states. If Congress tried but failed on a jurisdictional issue, it still gives the substantive issue the dimension of a major dispute between co-equal branches about federal statutes and foreign trade legislation, rather than states questioning Executive decisions.
For example, when the Line-Item veto act was passed, some congressmen who opposed it challenged it in court. They were found not to have standing (this does not weaken congressional standing in our case, where it would be the House in its institutional capacity, not simply a few members on the losing side of a vote bringing the suit). However, subsequently, when New York City and private groups affected by the Line Item Veto brought suit, their justiciable and ultimately successful case may have seemed more serious in light of the prior legislative challenge.
The states’ role
Dozens of states currently have Iran sanctions in place. Many of these are tied to the federal sanctions scheme, such that the state sanctions automatically terminate when the federal ones do. The simplest strategy for states is to insist on the ongoing validity of their sanctions even after President Obama purports to order sanctions relief.
The states can follow the House’s lead, and say they do not regard Corker-Cardin as having been complied with, and thus their sanctions remain in place. Indeed, the non-compliance with Corker-Cardin will protect state laws from preemption, as even the robust version of “executive policy” preemption in Giaramedi does not apply when the executive policy is blocked by express legislation.
(So far I, have assumed the the Executive will argue that Corker-Cardin gives him broad new sanctions cancellation power that he will purport to use; obviously, the existence power depends on compliance with that authorizing statute. If the Executive merely purports to be using previous waiver authority, which I doubt he will be content to do, then there is a reasonable argument, though no slam-dunk, that such authority is frozen pending Congress’s review of the full deal.)
State sanctions offer many routes to judicial review. First, the state can itself bring enforcement actions. State and lower federal court rulings in enforcement suits would also give courts an opportunity to rule on the legality of sanctions relief, but would not immediately bind the federal government.