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Opinion Standing to challenge the Iran deal – Congress and the states

President Barack Obama speaks about the nuclear deal with Iran, Wednesday, Aug. 5, 2015, at American University in Washington. (AP Photo/Carolyn Kaster)

Many observers have assumed that despite the deep legal infirmities in the White House’s Iran deal, there is no way to secure judicial review of it. In fact, there are at least two paths to invalidating any sanctions relief implemented by the president – a lawsuit by a House of Congress, or action involving state sanctions laws.

Congress’s standing
Yesterday a D.C. Federal district court issued a landmark ruling in House of Representatives v. Burwell, upholding the House of Representatives standing to challenge Executive action under the Affordable Care Act. The question of institutional legislative standing is a fairly novel one, and thus this is an important decision.

Whether it survives on appeal, the decision creates a major and previously unanticipated opening for a congressional lawsuit challenging the Joint Comprehensive Plan of Action. The constitutional argument would focus on the non-transmission of documents required under the Iran Nuclear Agreement Review Act of 2015 (the Corker-Cardin deal), which would seem to satisfy the standing test established by the district court.

Corker-Cardin makes clear that sanctions relief under preexisting statutory authority can only come after a positive vote, or no vote, or an overridden disapproval vote, during the “period of review.” Since the period of review has not started, sanctions relief would be unlawful. Congress suffers an injury by the president’s failure to begin “period of review.” Thus Congress can take no binding action with regard to the JCPA. This undermines Congress’s Article I ability to regulate foreign commerce, and indeed its ability to function as a legislature.

By not transmitting the relevant materials, the president is preventing Congress from exercising its legislative authority. That argument – whether ultimately successful or not – may state a sufficient injury under House of Representatives v. Burwell.

The President, of course, has broad, but not infinite discretion in the enforcement of federal law. Burwell found a related challenge to presidential enforcement action to be non-justiciable. But President Obama does not plan on merely not enforcing sanctions. Rather, he will purport to formally suspend them — a binding legal action. (One difference is that mere non-enforcement could be reversed by a subsequent president, who could enforce sanctions law against those who violated them even under Obama.)

Even if Congress proceeds to a vote, it will have no legal effect, because the “period of review” would not have started, and the statute only authorizes sanctions relief during or after the “period or review.” Congress cannot rewrite the “period of review” definition in Corker-Cardin simply by staging a vote.

However, to best preserve its ability to take advantage of yesterday’s standing ruling, Congress should insist on not voting on anything labelled a “resolution of disapproval.” Indeed, Congress cannot competently act on a resolution of disapproval, both because such a resolution lacks any legal force until the period of review commences, and because they have been denied the relevant information necessary to fulfill their constitutional role.

When it seemed Congress had no judicial recourse, voting on a purported disapproval resolution may not have seemed as costly; now there is a real downside. If, however, Congress votes on a resolution of approval, or other resolution outside the Corker-Cardin framework, it will not affect their ability to invoke the latter.

State sanctions and standing
There is another avenue for standing to challenge the implementation of the Iran deal — indeed, dozens of avenues. Assume the President proceeds, purporting to have satisfied Corker-Cardin, to waive and suspend sanctions under preexisting authorities. But since Congress’s vote was not within the “period of review,” which had not started, the entire exercise will be with no legal effect. Corker-Cardin’s freezing of the president’s sanctions suspension authority will still be in effect. Indeed, it will be in effect indefinitely.

Many states have their own Iran sanctions’ laws, and many are are moving to implement or strengthen such. Many of the state sanctions regimes provide that they terminate if federal sanctions are suspended. Such a state may well be sued by those subject to the state sanctions, arguing that the state sanctions are preempted by federal law, on the view that federal sanctions have been suspended or waived. The plaintiffs in such a case would certainly have standing. But as a defense to such a suit, the state could then argue that in fact the federal sanctions have not been waived or suspended, under the terms of Corker-Cardin.

Such an argument would be eminently justiciable, as standing generally applies to plaintiff’s claims, not to defenses. It is not unheard for the legality of something to be non-justiciable in a direct challenge, but reviewable in an enforcement action. To put if differently, state law can’t be preempted by an invalid federal action.

Indeed, a state Attorney General wishing to promptly challenge the President’s actions can easily do so by finding a company to enforce state sanctions laws against. This would also allow the process to take place in state court.

Either an enforcement action by a state or an anticipatory suit by businesses against state sanctions would give the state the opportunity to raise the legal challenges about Corker-Cardin. And if a court indeed ruled in such a case that Corker-Cardin had not been complied with, that proposition of law would be true even outside the context of the state sanctions litigation.

In other words, the validity of any presidential sanctions against will remain in doubt for quite a while. Any court ruling that Corker-Cardin was not complied with would potentially expose any companies that relied on sanctions “suspension” to enforcement actions under a subsequent president.

Finally, there may be still other routes to standing – for example, for people with claims against Iranian assets that will be released under the deal.