Academic journal article Suffolk University Law Review

Expanding the Executive Branch's Foreign Relations Power: An Analysis of the Iran Nuclear Agreement

Academic journal article Suffolk University Law Review

Expanding the Executive Branch's Foreign Relations Power: An Analysis of the Iran Nuclear Agreement

Article excerpt

"The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." (1)

I. INTRODUCTION

One of the most important aspects of the U.S. Constitution is the establishment of three separate but equal branches of government, and the division of the power to manage foreign relations among the branches. (2) As a result of the Obama Administration's successful passage of the 2015 Iran Nuclear Agreement (Agreement), the executive branch has potentially assumed some of the Senate's constitutional power. (3) This Agreement lifts economic sanctions against Iran, with the expectation of curtailing the Iranian nuclear program. (4) The magnitude of this Agreement on the international stage cannot be understated: With the passage of the Agreement, more than $ (100) billion will become available to Iran. (5)

While this Agreement will have significant foreign policy repercussions as the United States attempts to reposition itself in the Middle East, its impact on our domestic political structure is worthy of even greater legal analysis. (6) The manner in which the Agreement was implemented establishes a potential precedent that could significantly alter how future international agreements take effect. (7) President Obama likely acted against the will of Congress when he instituted the Agreement, which raises important constitutional questions in light of Youngstown Sheet & Tube Co. v. Sawyer (8Youngstown), United States v. Curtiss-Wright Export Corp. (9Curtiss-Wright), and other judicial precedent. (10)

Per the U.S. Constitution, two-thirds of the Senate must vote in favor of a treaty for it to be approved. (11) Due to unique voting procedures, however, the Agreement was implemented with the support of only forty-two senators and without Congress's direct affirmation. (12) The forty-two senators who supported the Agreement prevented the Senate from casting a formal vote to either approve or deny the Agreement. (13)

This Note examines the executive branch's role in enacting agreements with foreign nations, and considers how the Agreement alters the delicate balance of power between the executive and legislative branches. (14) Part II.A presents the Madisonian perspective on the division of the federal government's power to manage foreign affairs between the executive and legislative branches. (15) Part II.B outlines Supreme Court precedent concerning the scope of executive power with respect to foreign affairs. (16) Part II.C traces the implementation of sanctions against Iran by the United States between 1979 and 2008. (17) Part II.D discusses the implementation of additional sanctions against Iran during President Obama's presidency and the subsequent enactment of the Agreement. (18)

In Part III.A, this Note argues that President Obama should not have implemented the Agreement without the support of a majority of Congress. (19) Part III.B asserts that President Obama's actions in implementing the Agreement were unconstitutional. (20) This Note concludes by maintaining that President Obama's unconstitutional implementation of the Agreement jeopardizes the separation of powers that is essential to the constitutional structure of the U.S. government. (21)

II. HISTORY

A. The Madisonian Perspective on the Power to Conduct Foreign Affairs

The Framers of the U.S. Constitution created a government with three coequal branches. (22) In doing so, they hoped to establish a system of checks and balances, preventing the types of abuses that might occur if all governmental powers were to be concentrated in a single branch. (23) In the Federalist Papers, Hamilton examined the necessity of requiring legislative support for the executive branch to enact treaties. (24) Hamilton noted that once enacted, treaties have the force of law, and the Union would benefit from the executive and legislative branches working together to formulate and implement such treaties. …

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