Beginning on Sunday, sources in the House began to report that there would be an effort to pass a "sense of Congress" vote that the president did not comply with the Corker-Cardin bill because the administration didn't turn over information about the side deals between the U.N. and Iran. Not surprisingly, the House GOP caucus doesn't want to vote on an agreement without knowing exactly what they are voting on.
Corker-Cardin was the bill passed and signed by the president months ago to allow for debate and vote on the Iran deal which was defined by Obama as an executive agreement (as opposed to a treaty). Unlike treaties, executive agreements usually do not need congressional approval and the Supreme Court has ruled in the past that it is the president who decides whether something is a treaty or an executive agreement.
A "sense of Congress" resolution saying Obama has not complied with Corker-Cardin would be the first step to filing a lawsuit to prevent implementation of the deal. But, until Wednesday evening, there was no hope of that resolution reaching the floor.
By Thursday afternoon, however, the resolution was passed and Speaker Boehner said legal action is “an option that’s very possible.” Privately, Congressional sources are saying a lawsuit is more than possible.
Two things happened to change the fate of the "sense of Congress" resolution. First was a revolt by House Republicans demanding that they do something more than simply vote on the resolution to disapprove the deal and allow Senate Democrats to filibuster (the Corker-Cardin requires the Congress to vote on whether they object to the Iran agreement as opposed to approving it).
The second thing that helped to change the fate of the resolution concerns Obamacare. On Wednesday evening, for the first time in the history of the United States, a federal court held that Congress has standing to sue the administration for stomping on its responsibilities as laid out in Article I of the Constitution (House vs. Burwell). This gave GOP house leadership confidence in their ability to mount another lawsuit.
professor at Northwestern University School of Law, and an expert on constitutional and international law) Washington Post's Volokh Conspiracy blog concluding that the Burwell ruling did, indeed, create "a major and previously unanticipated opening for a congressional lawsuit challenging the [Iran Agreement]."
The legal argument is a little bit more subtle than the usual "Corker clock hasn't started" arguments. It begins in the usual place: the 60-day review process hasn't started because the Iran-IAEA side deals haven't been transmitted to Congress. But, the injury isn't just that waiving sanctions is illegal, which is the way the argument usually precedes. Instead, the Kontorovich argument is that Congress has been denied its ability to execute its responsibilities as laid out in Article I of the Constitution. Since the binding action on the Iran deal can only occur between Day 1 and Day 60 of the Corker "period of review," and since that clock hasn't started, and we're not in Day 1, Congress has been denied the ability to act on the deal.
To move ahead with their strategy the House is moving ahead with two bills and a resolution:
- H. Res. 411 –(The "sense of Congress" resolution) Finding that the President has not complied with section 2 of the Iran Nuclear Agreement Review Act of 2015 .
- H.R. 3460 –A bill to suspend until January 21, 2017, the authority of the President to waive, suspend, reduce, provide relief from, or otherwise limit the application of sanctions pursuant to an agreement related to the nuclear program of Iran.
- H.R. 3461 – While Corker-Cardin requires a negative vote---this will be a vote to approve the P5+1 deal which will put the Democrats on record as supporting the agreement. More importantly according to Kontorovich:
Congress should insist on not voting on anything labeled 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.
Corker-Cardin was an unprecedented bill passed by Congress and, furthermore, suing the president is also not a usual event, therefore the fate of this strategy is very much up in the air, but it's going to be a very interesting process and crucial for preventing a nuclear Iran, something the P5+1 agreement fails at achieving.