Speaker John Boehner (R-OH) is about to lose a legislative fight over the Iran nuclear weapons deal that President Obama supports and that Boehner and his fellow Republicans generally oppose. So, in a story that has now become predictable whenever congressional Republicans lose a legislative or political fight, Boehner is threatening to sue.
Yet, if the Speaker does move forward with this suit, his apparent legal arguments rest on a misreading of federal law.
On Thursday, Boehner previewed what his legal arguments are likely to be if he asks the federal courts to wade into a sensitive question of international diplomacy. Echoing an argument that first gained momentum after it was embraced by a group of especially conservative members of Congress who sometimes meet at a Mexican restaurant near the Capitol, the Speaker claimed that “the president has not complied” with a federal law governing Congress’s ability to review the Iran deal because that law “makes clear that any side agreements and any other type of an agreement — including those that do not directly involve us — must be turned over as part of it.”
An op-ed co-authored by Rep. Mike Pompeo (R-KS) lays out this legal theory in more detail. In essence, Boehner and the so-called “Tortilla Coast Caucus” rest their hat on a so-called “side agreement between Iran and the International Atomic Energy Agency (IAEA)” which allegedly “describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved.”
Pompeo claims that the 60 days federal law gives Congress to review the Iran deal has not begun yet because President Obama has not provided Congress with this so-called “side deal.”
The Iran Nuclear Agreement Review Act does indeed require President Obama to “transmit to the appropriate congressional committees and leadership” any “agreement” that his administration reaches with Iran “relating to the nuclear program of Iran.” It also permits Congress to review this agreement for 60 days if the president transmits it between July 10 and September 7th (these dates are probably a nod to the fact that Congress spends much of the month of August in recess. If the president had transmitted the agreement at some other time, Congress would only have 30 days to review it).
The problem with Pompeo’s argument, however, is that it ignores the full text of this law. As NYU law Professor Rob Howse explains, the law defines the word “agreement” to only include “an agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action.” In other words, while President Obama is required to fully disclose the details of an deal between the United States and Iran, or any deal that otherwise binds the United States, he is not required to disclose an agreement between third parties that the President of the United States has no actual authority over.
This reading of the law, according to Howse, “is supported not only by textualism; it is also dictated by common sense.” For, as he notes, a law “should not be construed as requiring the executive to do something it manifestly does not have the power or authority to do.”
Additionally, the Supreme Court has generally cautioned judges against weighing into questions of foreign relations because “many such questions uniquely demand single-voiced statement of the Government’s views.”
So the Tortilla Coast legal strategy is unlikely to prevail — at least if it comes before a judge who is interested in applying the law as it is written. The danger for President Obama and other supporters of the Iran deal, however, is that conservative lawyers have shown a remarkable talent for hunting down sympathetic trial court judges who have demonstrated a willingness to read the law creatively in order to advance the Republican Party’s goals.
The co-author of Pompeo’s op-ed is David Rivkin, a former Reagan and Bush I administration official who also litigated the multi-state lawsuit seeking to repeal the Affordable Care Act at the trial court level. Speaking on a panel last June, however, Rivkin admitted to engaging in “venue selection” when he and the other members of his legal team filed this lawsuit. The suit wound up being tried before a very conservative judge who held that the entire law should be struck down in an opinion that contained dozens of legal and factual errors.
Similarly, lawyers challenging President Obama’s immigration policies filed their legal complaint in a courthouse in the southern-most tip of Texas, where it was assigned to a judge with a record of criticizing the administration’s immigration policy as insufficiently harsh. That judge not only ruled against the administration, he’s engaged in unusual tactics that delayed appellate review of his decision and even threatened sanctions against attorneys defending the program.
The question for Boehner and his Tortilla Coast colleagues, in other words, is unlikely to be whether he has a valid legal argument. It is whether he can bring this case to a judge who is already inclined to rule in his favor.