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Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers

53 Pages Posted: 24 Jan 2017 Last revised: 6 Dec 2017

Samuel Estreicher

New York University Law School

Steven Menashi

George Mason University

Date Written: December 1, 2017

Abstract

This Article examines the constitutional validity of President Obama's decision, as part of his 2015 agreement with Iran, effectively to repeal seventeen different sanctions provisions for the fifteen-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a "nonbinding political agreement" with Iran and by aggregating individual waiver provisions in the sanctions laws into an across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power — what we term "the Steel Seizure principle," after Youngstown — the Steel Seizure case.

As the U.S. Supreme Court reaffirmed in Steel Seizure, the President does not have lawmaking power even where national security and foreign relations concerns are at stake. A vast literature has grown around Steel Seizure, especially its influential concurring opinion by Justice Robert Jackson. Yet relatively little attention has been paid to the majority view of the Justices that President Truman's seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional "plan" for addressing the particular policy issue. This aspect of Steel Seizure highlights what is particularly problematic about President Obama's decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear-related sanctions pursuant to his agreement with Iran. President Obama treated the waiver provisions as an invitation to end the congressionally prescribed sanctions regime for addressing Iran's nuclear weapons program and to replace it with his own nonsanctions regime for addressing the same issue. Yet the President lacks the unilateral power to overturn Congress's prescribed policy and to replace it with his own.

The President can be viewed both as an agent and, particularly in the foreign relations area, as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President's role in foreign affairs. Once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the President's role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the President to seek new legislation each time flexibility was needed. It did not, however, invite the President to override the sanctions framework altogether.

An emergent literature in administrative law has praised Congress's willingness to delegate waiver authority to the President for providing needed flexibility and other policy benefits. Yet that literature recognizes that the President's exercise of waiver authority must be carefully circumscribed to avoid enabling the President effectively to revise a statutory regime out of disagreement with Congress’s policy choices. Such limiting principles are no less necessary in the foreign affairs context, where President Obama used purported waiver authority in the Iran sanctions statutes to pursue his own policy in defiance of Congress.

Keywords: Joint Comprehensive Plan of Action, JCPOA, Iran Nuclear Agreement, Separation of Powers, Statutory Waiver Authority, Youngstown Sheet and Tube v. Sawyer

Suggested Citation

Estreicher, Samuel and Menashi, Steven, Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers (December 1, 2017). Fordham Law Review, Vol. 86, No. 3, p. 1199, December 2017; NYU School of Law, Public Law Research Paper No. 17-03; George Mason Legal Studies Research Paper No. LS 17-04. Available at SSRN: https://ssrn.com/abstract=2903574 or http://dx.doi.org/10.2139/ssrn.2903574

Samuel Estreicher

New York University Law School ( email )

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Steven Menashi (Contact Author)

George Mason University ( email )

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Arlington, VA 22201
United States
202-596-7375 (Phone)
202-315-3462 (Fax)

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