In addition to all the matters of legitimate concern associated with this proposed deal between Iran, the United States, and the European powers, the deal has a strongly anti-democratic quality. This quality can be seen in paragraph twenty-five of the proposed deal’s general provisions. This holds:
If a law at the state or local level in the United States is preventing the implementation of the sanctions lifting as specified in this JCPOA, the United States will take appropriate steps, taking into account all available authorities, with a view to achieving such implementation. The United States will actively encourage officials at the state or local level to take into account the changes in the U.S. policy reflected in the lifting of sanctions under this JCPOA and to refrain from actions inconsistent with this change in policy.
So in other words, the Federal government is going to undertake to override state laws insofar as such laws conflict with the deal. Doesn’t it do that all the time? To see why this is a problem, we look at Article Six, Clause 2 of the United States Constitution, known as the “Supremacy Clause.” This clause holds that the supreme law of the land shall be the Constitution, treaties, and federal statutes. State laws that conflict with the Federal rules are held null and void, provided that the Federal government is acting in accord with one of its authorized powers.
Now this deal is not going to be a treaty, because to be a treaty it would require the support of a two thirds’ majority of US Senators. Then the deal would have significant democratic legitimacy as an expression of American will, or at least Congressional will. In this case, however, Congress is only going to express legislation either approving or disapproving of the deal. That requires not two-thirds’ majority, which is 67 votes in the Senate, but only the 60 votes required to get to cloture. This does not meet the Constitutional standard for a treaty.
Worse, should Congress vote to disapprove the deal, the President has already said that he will veto their disagreement. That means that Congress would have to override the veto for its disapproval of the deal to be binding. Overriding a veto requires a two-thirds’ majority of both houses, whereas approving a treaty requires only a two-thirds’ majority in the Senate alone. Thus, this deal does not merely invert the Constitutional process for approving a treaty, it actually sets a harder standard for Congressional will to be exercised.
So let’s return to the Supremacy Clause and paragraph 25 of this deal. Is it legitimate for the Federal government to undertake to override democratically-enacted state legislation on the will of the President alone?
In Edgar v. MITE Corp, a 1982 ruling by the Supreme Court, a two part test was set up for when the Supremacy clause would apply to state actions. The first part of the test is that compliance with both State and Federal laws is impossible, and that might hold. However, the second part is that “State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Emphasis added. Congress’ will in this case may well be that the deal be disapproved. Thus, state laws resisting the deal would be in accord with the will of Congress.
Subsequent Supreme Court rulings underline the point. Missouri v. Holland applies to the treaty power – but this is not being enacted as a treaty, as it lacks the democratic support that would be required to meet the standard for creating a treaty. The other supremacy clause rulings since 1982 all deal with the expressed will of Congress.
Supremely binding legislation at the Federal level cannot be made in defiance of the will of Congress. By flipping the treaty process on its head, this deal defies the will of Congress and yet presumes the authority of a treaty. State legislation to resist it should be perfectly appropriate. Yet the State Department, acting under the authority of the President alone, has pledged to use the power of the Federal government to quash democratic objections that align with the expressed will of Congress.
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