President Obama’s nuclear agreement with Iran may prove to have more loopholes than substance. But don’t heap all the guilt on Mr. Obama; he is following the pattern created by Congress. Our sanctions against Iran are also riddled with loopholes because Congress granted the president super powers to cancel the sanctions.
Mr. Obama makes his plan sound tough. Congress likewise made the sanctions on Iran sound tough. But everybody left themselves plenty of wiggle room to undercut their tough talk with mild enforcement or even no enforcement.
Who gave Mr. Obama the authority to return $12 billion to Iran when negotiations began? Congress did. Who gave Mr. Obama authority to give Iran back another $100 billion or more in frozen assets? Congress did.
Mr. Obama is not applying authority granted to him by the U.S. Constitution. He is applying additional powers gifted to him by a Congress that passes the buck on tough decisions.
The sanctions law dictates harsh punishment for Iran, then undoes it all by authorizing a president either to “lift” sanctions or to “waive” them altogether. The White House simply must “certify” its decisions.
The practice is common in all types of federal laws, including Iran sanctions, other foreign policy legislation and in a multitude of domestic laws.
Here’s one example of how it works: In 2010, Congress enacted the Comprehensive Iran Sanctions, Accountability and Divestment Act (CISDA) imposing extensive restrictions on that country. However, Section 401 of CISDA states all sanctions “shall cease to be effective” if the president “certifies to Congress” that “the Government of Iran has ceased providing support for acts of international terrorism” and “has ceased the pursuit, acquisition and development” of “nuclear, biological and chemical weapons and ballistic missiles.”
What if the president certifies these things, even though he’s flat-out wrong to do so? Too bad; the law allows no review to question his judgment. The sanctions are lifted.
CISDA gives the commander-in-chief another alternative, namely “waiving” sanctions instead of “lifting” them. The statute states, “The President may waive the application of sanctions … if the President determines that such a waiver is in the national interest of the United States.”
Again, once the chief executive issues his written conclusion, then it wipes out everything else, even if his conclusion is blatantly false. The rest of the process is just window-dressing, giving Congress 30 days’ notice before the sanctions evaporate.
Loopholes like these are common in foreign affairs legislation. As noted by the Congressional Research Service (CRS), presidents and congresses historically “have worked together to provide the President substantial flexibility” including “the authority to tighten and relax restrictions.”
Similar language allows the president, the State Department or Department of Defense variously to cancel out the laws passed by Congress whenever they decide to disagree with those laws.
Loosey-goosey draftsmanship in writing our laws is enabling Mr. Obama to run roughshod.
I once asked the Congressional Research Service for a list of all federal laws that explicitly enable presidents or their appointees to cancel out legislation. CRS replied that the list is too big and too long to assemble.
Congressmen and senators will bluster, accuse and wax indignant over Mr. Obama’s deal with Iran. They can make a great case that it is a horrible, shameful and dangerous agreement. But those who gave Mr. Obama such extra powers need to accept their share of the blame.
Former Congressman Ernest Istook is president of Americans for Less Regulation. Get his free newsletter at here.