Eugene Kontorovich explains that because the President has failed to transmit all of the documents (including side deals) as required by the Iran Nuclear Review Act of 2015 (Corker-Cardin), the sixty-day review period hasn’t started. Because this period hasn’t started, Eugene writes, it is irrelevant whether Congress actually votes to disapprove the removal sanctions. Eugene highlights two possible routes by which this action could be challenged in court: (1) by the House of Representatives as an institution, or (2) by private parties (such as state attorneys general) who are still subject to state-imposed sanctions.
First, citing Judge Collyer’s decision yesterday in House of Representatives v. Burwell, Eugene notes the House of Representatives has suffered an institutional injury, and would have standing.
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.
Judge Collyer didn’t base standing merely on an injury, but on an injury derived from what she called the “non-appropriation theory” of standing.
Properly understood, however, the Non-Appropriation Theory is not about the implementation, interpretation, or execution of any federal statute. It is a complaint that the Executive has drawn funds from the Treasury without a congressional appropriation—not in violation of any statute, but in violation of Article I, § 9, cl. 7 of the Constitution.17 The Non- Appropriation Theory, in other words, is not about how Section 1402 is being applied, but rather how it is funded.
Specifically, the problem was not that the President was violating a statute, but that he was drawing funds in the absence of an appropriation.
The House of Representatives as an institution would suffer a concrete, particularized injury if the Executive were able to draw funds from the Treasury without a valid appropriation. The House therefore has standing to sue on its Non-Appropriation Theory, to the extent that it seeks to remedy constitutional violations.
Where the dispute is over true implementation, Congress retains its traditional checks and balances—most prominently its purse strings. But when the appropriations process is itself circumvented, Congress finds itself deprived of its constitutional role and injured in a more particular and concrete way.
Collyer distinguished the payment of funds without an appropriation from the alternative claim that the delay of the employer mandate was unlawful.
The Employer-Mandate Theory stands on very different footing than the Non- Appropriation Theory. The House alleges that Secretary Lew and Treasury have disregarded the congressionally-adopted employer mandate in two ways. First, Secretary Lew delayed the effective date of the mandate beyond the statutory prescription of January 1, 2014. Compl. ¶ 45. Second, he reduced the percentage of employees or full-time equivalents (FTEs) who must be offered insurance, thereby decreasing the burden on employers. Id. ¶ 46. Both of these regulatory actions are said to “injure the House by, among other things, usurping its Article I legislative authority.”
However, these are statutory claims, even if framed in constitutional terms.
Despite its formulation as a constitutional claim, the Employer-Mandate Theory is fundamentally a statutory argument. The House cites only Article I, § 1 and Article I, § 7, cl. 2 in its Complaint. See Compl. ¶¶ 91-108 (Counts VI-VIII). Those provisions, taken together, establish that Congress has sole legislative authority and that laws cannot be adopted without its approval. The House extrapolates from this that any member of the Executive who exceeds his statutory authority is unconstitutionally legislating.
The court–in what I see as its key limiting principle to prevent the floodgates from opening–explains that the implementation of law, or even extra-statutory action, is not sufficient to justify standing.
The argument proves too much. If it were accepted, every instance of an extra- statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against “the specter of ‘general legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or the Constitution.” House of Representatives, 11 F. Supp. at 89-90; cf. Windsor, 133 S. Ct. at 2689 (“The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise.”).25 In sum, Article I is not a talisman; citing its most general provisions does not transform a statutory violation into a constitutional case or controversy.
So back to the injury that Eugene describes. At heart, the dispute centers over whether the President has complied with the terms of Corker-Cardin–that is whether all of the documents have been supplied, and the review period began. The challengers would say they have not been provided, and therefore the review period never began. The President (were he forced to defend it in court) would probably say based on his understanding of his responsibilities under international law, he has provided everything the Congress can compel him to provide, and therefore the 60-day clock expired. Is this, like Judge Collyer explains, an instance of the President violating the Constitution straight-up. Or, is he violating the implementation of a statute. This injury, as framed, seems far closer to the delay of the employer mandate (a statutory implementation debate) than the appropriation of funds without an appropriation (a constitutional violation debate). But I pause here to note that the ink of Judge Collyer’s decision is still not dry–and this distinction may not even be correct.
Nick Bagley writes that this distinction is “incoherent”:
But the judge’s distinction—one she characterizes as “critical” to her decision—is incoherent. Both challenges involve the violation of a constitutional requirement. The challenge to the cost-sharing reductions alleges a violation of the Appropriations Clause. And the challenge to the delay of the employer mandate alleges a violation of Congress’s constitutional authority to make laws.
Likewise, both challenges concern the implementation of a statute. The Obama administration says that an existing statute supplies a permanent appropriation for the cost-sharing reductions. It also says that the IRS has been delegated the authority to temporarily delay the effective date of statutes.
Elizabeth Price Foley (who was the first academic to suggest the House could sue over Obamacare, along with David Rivkin) writes that the distinction is an “artificial and unsustainable bifurcation.” Ian Millhiser writes, “It’s a novel distinction establishing a novel limitation to a novel rule that carves out a novel exception to decades of established precedent.” I wrote that this theory, to quote Justice Scalia in Zivotofsky, is “gerrymandered to the facts of this case.” When we all agree on a key constitutional question, you know there is something lacking in the court’s opinion.
In any event, another aspect of Judge Collyer’s opinion weakens possible institutional-based standing. As Eugene notes in his second route, there are other private parties that can sue.
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. …
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.
Indeed standing in state courts is often far more flexible than in federal courts. But this proves the point that the House doesn’t need to be the party in interest here.
Judge Collyer explains that standing is not warranted for the employer-mandate suit, private parties are free to sue over its delay.
The generalized nature of the injury alleged in the Employer-Mandate Theory is also relevant because other litigants can sue under the Administrative Procedure Act to invalidate Treasury regulations. Cf. Blackfeet Nat’l Bank v. Rubin, 890 F. Supp. 48, 54 (D.D.C.), aff’d 67 F.3d 972 (D.C. Cir. 1995). Indeed, litigation over implementing regulations has been ubiquitous since the ACA’s inception. E.g., King v. Burwell, 135 S. Ct. at 2488. A private plaintiff who is aggrieved by Treasury’s actions is free to sue and convince a court that such regulations are contrary to the ACA or otherwise improper.
This is almost certainly wrong, with respect to Obamacare. One of the insidious aspects of the Obama administration’s delays of penalties is that no one is injured (see my Cato brief in King v. Burwell). The plaintiffs in King v. Burwell–who were in a very slim income band–were only able to establish standing because the imposition of the mandate, in light of the subsidies, means they would have to pay more money. For virtually every income band, that would not be the case. I still haven’t seen how anyone would have standing to challenge the delay of the employer mandate. As Elizabeth notes, the 7th and 11th Circuits have tossed those challenges. But as a general matter, the court is correct–where private parties can sue, prudence dictates the House shouldn’t. This case can make it to Court, in a similar fashion that Dames & Moore v. Regan did.
With respect to a potential suit over the Iranian sanctions–assuming standing is present–I think Zivotofsky v. Kerry is quite relevant. Zivotofsky was unique. We were in Zone 3 of Justice Jackson’s framework–Congress said to stamp the passports with Israel as the place of birth, and the President said no. The President’s powers were at his lowest ebb, and the courts must scrutinize his claim with caution. Yet, notwithstanding this fact, the Court ruled in favor of the President. Why? Even rejecting the “sole organ” dicta from Curtiss-Wright, the Court found that because the recognition power was exclusive, Congress could not force the Secretary of State to contradict the President’s own foreign policy.
So why is this relevant here? While the Court found that the recognition power is exclusive (a dubious proposition as a matter of text and history), other powers were concurrent (such as ratification of treaties and appointment of ambassadors), and others were exclusive in Congress (Art. I, Sec. 8). As Justice Kennedy explained, Congress can declare war and embargo a country the President seeks to have relations with. Will this frustrate the diplomatic process? Absolutely, but Congress can take these actions pursuant to its authority under Article I, Section 8.
One of these Article I, Section 8 powers is the power to regulate foreign commerce. Sanctions on foreign nations falls clearly within this power, which is exclusive for Congress. If Zivotofsky was a close case, because Congress was intruding on the President’s exclusive authority, this case would cut the exact opposite way–the President is intruding on Congress’s exclusive powers. But then again, I don’t think we are Jackson’s zone 3. There is a plausible argument that the period of review began, and there is a plausible argument that it hasn’t. This puts us, I think, in Justice Jackson’s proverbial zone of twilight. Votes by the House to vote on whether the review period began will be helpful to show that there has not been acquiescence to the President’s understanding of the law. Indeed, in Dames & Moore v. Regan, Justice Rehnquist looked to post-action behavior by the House to find signs of disapproval.
Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself, Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Senate Committee has stated that the establishment of the Tribunal is “of vital importance to the United States.” S.Rep. No. 97-71, p. 5 (1981). We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority.
A vote that the review period never began is conclusive evidence of congressional “resist[ance] to the exercise of Presidential authority.” To the extent that majorities of both the House and Senate vote to reject the President’s reading of the statute (even without 60 votes), even under Dames & Moore, it will be much harder to side with the Executive in a sphere where the Congress has exclusive authority.
Here, Justice Scalia’s rejoinder to Justice Thomas’s view of executive supremacy, I think, wins the day:
That brings me, in analytic crescendo, to the concur- rence’s suggestion that even if Congress’s enumerated powers otherwise encompass §214(d), and even if the President’s power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “conflict[s]” with the President’s passport policy. Ante, at 24. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the execu- tive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, Art. I, §8, cl. 18, but the President must “take Care” that Congress’s legislation “be faithfully executed,” Art. II, §3. And Acts of Congress made in pursuance of the Constitu- tion are the “supreme Law of the Land”; acts of the Presi- dent (apart from treaties) are not. Art. VI, cl. 2.
Even under Thomas’s parsimonious reading of Congress’s role over recognition, he viewed the naturalization power as one exclusively with Congress–and thus they could control the consular reports. The regulation of foreign powers would be seen in a similar fashion. And nothing in Justice Kennedy’s decision for the Court is to the contrary.