The blog in a nutshell

The blog in a nutshell

Friday, September 11, 2015

Over at the Volokh Conspiracy,  Eugene Kontorovich has a series of posts  about David Rivkin's theory that President Obama's failure to submit the agreement between the IAEA and Iran regarding the details of certain IAEA inspections of Iranian nuclear sites somehow violates the Corkin-Cardin framework.

First, for those of you who are new here (everybody, except I am sure nobody is reading this), the Volokh Conspiracy is the conservative blog whose members championed, among other things, the various challenges to Obamacare, while Rivkin was heavily involved in those efforts as well.  So while the argument they make is fringe - it was not mentioned by anyone until Democrats had secured the votes to prevent disapproval - as you will probably see over the next days and weeks, it will become a mainstream Republican position.  Indeed, House Republicans are planning a vote for some reason on this "issue," even though it is, at heart, a (bad) legal argument, not a legislative policy argument.

Second, the argument according to Rivkin is that the IAEA-Iran deal is a "side agreement."  Kotorovich takes a different position, which is that it is not a side agreement, but part of the agreement itself.  Both are wrong, but I first want to point out why this matters, and why it does not.

Under the Corker-Cardin framework, Obama had 5 days from reaching an agreement with Iran to transmit three things:  the "agreement," a state department report about the adequacy of safeguards in the agreement, and a Presidential certification that the agreement is complete, and conforms to the US's legal obligations and non-proliferation objectives.

Once the agreement is certified, then Congress has a specific timeframe - ending September 17 - to disapprove of the deal.  Such a disapproval would only take into effect if the disapproval not only passed both houses of Congress, but was either signed by the President, or if Congress overcame a presidential veto.  Since there are 42 votes in favor of the deal in the Senate, that isn't going to happen - the vote of disapproval was successfully filibustered and will continue to be filibustered until time runs out.

But, according to Rivkin and Kontorovich, the side-agreement, which the United States (including the President himself) does not have access to - the IAEA historically never releases the contents of these arrangements - is part of the agreement.  Because it was not transmitted to Congress (Obama did not even have a copy of it), the theory goes, the "agreement" was not transmitted to Congress, and so the Congressional review period was never initiated.

Is that correct?  I don't know (although I think it is pretty clear that this is not the type of question a court will likely ever answer).  I think it is pretty clear that there was an agreement.  And Obama did transmit an agreement to Congress.  Assuming the substantive theory of R+E is right (it's not, we'll get to that), then Obama still sent *an* agreement to Congress.  I think other than "the clock hasn't started," there are two significantly more likely outcomes from a legal process view:

1 - The President has the right, consistent with his certification, to decide what is part of the agreement and what is not, and if Congress disagrees, they have a remedy specifically listed in Corker-Cardin: they can disapprove of the agreement; or

2 - The President imperfectly performed his obligation, and thus violated the law, but there's no remedy here, other than voting down the agreement, or perhaps impeachment.

So overall, while the arguments are dressed up as legal arguments,  they are really political arguments.  Their purpose is to legitimize the deal in the public eye, and to continue the narrative of Obama as a lawless, perhaps un-American, president.  But since they are legal arguments in the abstract, I think it is important to determine if they are correct.  The answer is no.

The Agreement ("JPA" or Joint Plan of Action) is defined by Corker-Cardin:

“(1) AGREEMENT.—The term ‘agreement’ means 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, regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future."

So let's start with Rivkin's argument.  Is it a "side-agreement?"  Almost certainly not.  First, a side agreement is an agreement that is part of "any joint comprehensive plan of action entered into or made between Iran and any other parties."  The "other parties" to the JPA are France, Germany, England, Russia, and China.  The IAEA is not an other party, so for that reason alone it is not a "side agreement."  Second, as Professor Rob Howse explains, an agreement - including a side agreement - is one where "the United States commits or otherwise agrees to take action."  The side agreement, remember, is an agreement between Iran and IAEA which details how Iran is going to comply with Iran's obligations under the JPA.  The United States makes no commitment, legally or otherwise, under the agreement.  (Kontorovich disagrees, but his disagreement is plainly based on him conflating Iran's obligations and the United States's obligations.)  And finally, nothing in the JPA, and none of the United States's obligations, are contingent on the contents or existence of the IAEA-Iran agreement.  Sure, without the agreement Iran would likely not allow IAEA inspectors to perform their jobs, and so *Iran* would be *violating* the agreement, but there would still be an agreement - just one that has been breached.

The beauty of Rivkin's argument is that it is simple and facile.  The agreement includes "side agreements," Republicans have successfully labeled it a "side deal" in the press, so it must be covered.  This is legally wrong, but remember, the argument is fundamentally political, not legal.  And the public does not have the attention span for detail.  So it is, in fact, a clever argument.

Kontorovich's argument is more nuanced.  It's a law professor's argument, not a political one.  And so it will ultimately be irrelevant.  But it is wrong too.  Kotovorvich claims that it is “implementing materials,” since, according to Kontorovich, "these arrangements implement the Roadmap, which is explicitly incorporated into the" JPA.  (This is what I said above - the agreement allows Iran to fulfill its obligations under the JPA.  But when Kontorovich says "incorporated," to the extent he means contingent, he's just wrong.)

The Agreement definition does include "implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future."  But Kontorovich's argument requires an unnecessarily context-free analysis of the meaning of these terms.  Based on Kontorovich's uncharitable reading, it "implements" the deal, thus is it is incorporated, thus it must have been transmitted within 5 days.

But 5 days!  We don't know when the IAEA-Iran deal took place.  It became public 7 days after the agreement was signed, but we don't know if it was agreed to 6 days after, 1 day after, or before the JPA became official.   But, certainly, some implementing material would occur after the agreement took place - even the definition of  the supplemental materials to be transmitted includes the language "whether entered into or implemented prior to the agreement or to be entered into or implemented in the future." And yet, unless Corker-Cardin was intended to accomplish nothing, there can be no requirement to transmit incorporating materials that do not even exist at the time transmission is due.

Instead, there's an easier way to understand the definition of agreement.  Many of us have signed agreements all the time - credit card agreements, employment agreements, etc.  They will generally incorporate or be contingent on other documents or agreements.  They will contain appendices, they will refer to laws, regulations, or "terms of service" of a website, etc.  What the definition of agreement means, is that the President should not just submit the list of clauses agreed to.  He should submit everything incorporated by reference or contingency as well, to the extent it existed at the time.

And this is where Kontorovich's claim fails.  The future existence of an Iran-IAEA agreement was contemplated by Iran, the United States, and the other parties at the time of the signing.  But it wasn't incorporated into the agreement (you can look, but we almost don't have to do this because it was such a surprise when discovered through third parties days after the agreement was transmitted to Congress).  And so it's not covered by the definition.

Think of it this way.  You just entered into a contract to buy a new house.  You need to submit the deal for regulatory approval, including all the "related documents."  That includes, of course, the appendices, the deed, and any contingencies and side-deals (say, they agree to kick in $1000 for closing, you agree not to inspect whether that musty smell in the basement is mold).  The deal is *not* contingent on financing, as you are not taking out a loan.  But in order to close the deal, you need to sell your old house - it's the only way to raise the money.  Do you need to provide the agency the contract to sell your old house?  Of course not.

Under no commonly understood interpretation of the term "agreement" would that sale be considered part of the agreement to buy the new house. Athough I am trying desperately to avoid citing cases in this blog (we'll see how long it lasts), the Supreme Court just decided that we have to look at the general understanding of a defined word and the context of an agreement to understand the meaning of the defined word itself, so that we don't take an overbroad, overliteral definition of a "chemical weapon" to render a woman who gave a guy a rash with some potassium dichromate a terrorist.  Likewise, we would never consider an agreement between Iran and the IAEA, to which the US does not even have access, to be part of an agreement between the Iran and US.

- J

PS - I said above that no court will take this issue up. I may or may not do a follow up post on why that it is, but I think the idea that a court would take this up to be so unlikely that I doubt that there will ultimately be any real effort.  That is why I label the argument a fundamentally political one.

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