October 13, 2017


Don't Believe the Hype: Trump Is Not "Decertifying" the Iran Deal (Marty Lederman, October 13, 2017, Just Security)

-- He is not using the delegated statutory authorities that the President has long had to reimpose the nuclear sanctions on Iran that Presidents imposed before the JCPOA. President Obama lifted, or waived, those sanctions after Iran undertook major (and in important respects irreversible) steps to significantly constrain its nuclear program and submit to an extremely robust monitoring and transparency regime. As a matter of U.S. domestic law, the President could remipose them, although such action would constitute the United States' unilateral breach of the JCPOA. (As I have explained elsewhere, such a breach would not violate international law because the JCPOA is not binding on the U.S. (or the other parties) as a matter of international law--which is why President Obama was able to have the United States agree to it in the first place without Senate ratification or congressional authorization.) Notably, however, Trump is not doing so.[1]

-- The President is not certifying that Iran has done anything to breach the JCPOA.

-- Indeed, Trump is not "certifying" anything.  Instead, he is declining to certify one thing (see below).

-- The Presdient is not even refusing to certify that Iran has complied with the JCPOA--to the contrary, the President reportedly will certify, or at a minimum his officials are likely to confirm what virtually everyone agrees to be the case, namely, that Iran is complying with its obligations under the JCPOA.[2]

-- Trump is not identifying any material change in circumstances or new information since his last set of certifications to Congress (in July) pursuant to the Iran Nuclear Agreement Review Act of 2015 (INARA).

-- He is not doing (or declining to do) anything that would require Congress to reimpose, or "snap back" into place, the nuclear sanctions against Iran.

-- Nor is he doing (or declining to do) anything that would even require Congress to invoke the INARA's highly expedited procedures for considering whether to "snap back" sanctions.

So, if those are among the important things that Trump is not doing, what is he doing, and to what effect?

As he mentioned in his speech this afternoon, President Trump is refussing, this weekend (the statutory deadline is the 15th), to make one particular INARA certification that he made in April and in July--not direcly involving Iran's compliance with the deal, but simply a certification that the U.S.'s own "suspension of sanctions related to Iran pursuant to the agreement" is: (I) "appropriate and proportionate to the specific and verifiable measures taken by Iran with respect to terminating its illicit nuclear program; and (II) vital to the national security interests of the United States."  Trump is declining to make this particular certification to Congress, notwithstanding Secretary Mattis' recent testimony that it is in the national security interest of he United States to "stay in" the JCPOA.

What is the legal impact of Trump's refusal to make this discrete certification about the relationship between sanctions suspension and our national security?  Merely that, under INARA, it frees up Congress to circumvent its ordinary, internal legislative procedures for considering a new statutory "snap back" of sanctions. It is noteworthy, however, that Trump is not urging or recommending that Congress actually use such "fast track" procedures, let alone recommending that Congress approve a "snap back" of the sanctions. To the contrary, by all accounts Trump and his officials do not recommend that Congress enact such a "snap back," just as Trump himself is not exercising his own authority to lift the sanctions suspension.  And there's no indication that Congress is inclined to do anything of the sort.

Therefore, not only is the President's new refusal to certify that the U.S. sanctions suspension is "vital" to the national security and "appropriate and proportionate" to Iran's efforts an extremely narrow exception to his certifications; more importantly, it will also have no legal effect, either under domestic law or with respect to the continuing operation of the JCPOA.

Posted by at October 13, 2017 6:22 PM