The Senate Must Sue Obama to Block the Iran TREATY

By Robert B. Sklaroff, M.D. and Lee S. Bender, Esq.

When Congress returns from recess after Labor Day, one of the most pressing issues on the agenda is the Joint Comprehensive Plan of Action (JCPOA), known commonly as “the Iran deal.” Much has been discovered since the Corker-Cardin-Menendez bill was enacted, including the White House’s and State Department’s deceit which influenced the Senate to abandon its constitutionally-provided role regarding treaties.

Now it might take a lawsuit spearheaded by Senate Majority Leader Mitch McConnell (R-KY) to reverse not only the damage to the Constitution but also potential damage to America and our allies as a result of the provisions of the Iran nuclear-deal.

Senate Majority Leader Mitch McConnell has overwhelming justification to sue President Obama over the JCPOA which constitutes a treaty and thereby must be ratified by a 2/3-vote of those present prior to implementation.

Such a suit could ultimately prompt the Supreme Court to disclaim Obama’s portrayal of this document as an Executive Agreement. It could also sustain the overwhelming will of the American people–according to polling data—to trash this “legacy” effort, for reasons that have been exhaustively detailed.

Blocking implementation of the Iran nuclear-deal would thereby necessitate the legislative branch triggering a confrontation between the judicial and the executive branches.

Two essays {authored by RBS} published in The Hill explored the legalities of this initiative, focused on its “treaty” [July 29] and “rule-of-law” [August 25] components.

In the interim [USA Today, August 5], Professor Alan Dershowitz recognized that a Supreme Court opinion challenged the President’s power to enter into long-term deals with foreign powers without the consent of Congress. He cannot avoid Congressional oversight by simply declaring an important deal with foreign powers to be an executive agreement rather than a treaty [Gibbons v. Ogden]: “[G]eneral and permanent commercial regulations with foreign powers must be made by treaty, but…the particular and temporary regulations of commerce may be made by an agreement of a state with another, or with a foreign power, by the consent of Congress.”

Two other authors, legal-authority Andrew C. McCarthy [National Review Online, July 17] and accomplished-author Caroline B. Glick [Jerusalem Post, July 21] also claimed the deal is a treaty, but none of these columnists proposed a remedy that would force a clash with this out-of-control Obama Administration. Jerry Gordon has detailed, comprehensively, “How Best to Overturn the Iran Nuclear Pact” [New English Review, August 2015].

The drip-drip-drip of news about details of the deal as well as “secret” side arrangements that has emerged this summer congeals into two major rationales for such litigation, addressing both specifics and lack of transparency. Specifically, multiple side-deals between Iran and the IAEA satirize the concept of “anytime, anywhere surveillance” but, perhaps more important, Obama and his cabinet-members “inexplicably” failed to reveal this information to Congress as secrets. Moreover, the Administration also misled Congress and the American public about the nature of the deal and the resulting preservation of Iran’s nuclear infrastructure and right to continue advanced research that will provide it with a bomb when the pact expires in a mere decade to 15 years.

The “legislative intent” of the Corker-Cardin Bill (Iran Nuclear Agreement Review Act of 2015) was focused exclusively on Iran’s nuclear program, contrasting with the final pact the Administration concluded that was expanded to allow lifting of conventional-weapon sanctions. Iran sought—and was granted—this specific concession at the very end of the negotiations. This was outside what the Administration had originally advised Congress about the parameters of this deal, focused on nuclear-weapons capability and not conventional weapons (or ICBMs). Thus, the final version of the Iran nuclear-deal encompassed issues, such as weaponization, that the Administration did not disclose to Congress before it debated and passed the Corker-Cardin Bill.

(Other facets of the negotiation were also misrepresented by the Obama Administration prior to when Kerry inked the deal. For example, although release of American prisoners was not ultimately achieved, Deputy Secretary of State Antony Blinken testified before the Senate Foreign Relations Committee on January 21, 2015 that the Administration’s negotiators “continue to insist” that Americans held in detention be released.)

This pattern of deception started before the Corker-Cardin Bill was passed in May. It was even maintained by Iran when the Tasmin News agency reported [June 15] “Secretary of Iran’s Supreme National Security Council (SNSC) Ali Shamkhani reiterated that negotiations between Tehran and six major world powers solely focus on nuclear topics, dismissing any talk of military subjects in the talks.” And, reflecting the persistence of the deception, it was manifest one week prior to when the deal was signed [July 14] during a Senate Armed Services Committee hearing via testimony from Defense Secretary Carter and Chairman of the Joint Chiefs of Staff Dempsey that the arms embargo, pursuant to Security Council Resolution 1929, was not to be lifted [July 7].

Thus, overall, absent the ability to review all relevant data, the Senate (1)—cannot render an informed judgment, consistent with its “advise/consent” role, and (2)—cannot be viewed to be facing a 60-day deadline, for the Corker-Cardin Bill mandates that this “clock” start “ticking” only after the database has been completed.

Refusal to provide copies of side-agreements to Congress continues unabated, as per testimony on August 5 by chief-negotiator Wendy Sherman and IAEA Director General Yukiya Amano. We now know why normally-sedate Senator Corker exploded (“We cannot get him to even confirm that we will have physical access inside of Parchin”) because such inspections have been serially outsourced by Obama to the IAEA and then, we learned more recently, by the IAEA to Iran.

The “toughest inspections-regime in history” forces America (and the world) to allow Iran to provide proof that Iran is not making nukes in Iran.

Perhaps more ominous is the dismissive posture adopted by Secretary of State Kerry [July 28] when confronted by Rep. Brad Sherman (D-CA) during a House Foreign Affairs Committee hearing. The innocent hypothetical was unambiguous: Would he “follow the law” governing existing congressional sanctions if Congress voted to override a veto? The elitist reply challenged rule-of-law: “I can’t begin to answer that at this point without consulting with the President and determining what the circumstances are.”

Could BHO go rogue?

The ability of the Supreme Court to exercise “judicial review” is rooted in the Supremacy Clause, was affirmed in 1803 [Marbury v. Madison], and has never been tested again to this day.

But, because the Supreme Court does not command any enforcement-military, the remedy for potential lawlessness is unclear. Indeed, this concern would extend to any nullification effort by the President related to the prospect that the Supreme Court would declare the Iran-Nuclear Deal to be a “treaty” rather than the “executive agreement” the President has potentially improperly considered it to be, to skirt congressional oversight and approval.

These concerns were predicted [May 7] and corroborated [July 23] in essays that presage the current crisis [by RBS, both published in The American Thinker]. They were confirmed in an e-mail exchange by noted constitutional scholar, Dr. John C. Eastman [the Henry Salvatori Professor of Law & Community Service at the Dale E. Fowler School of Law at Chapman University and Founding Director of The Claremont Institute’s Center for Constitutional Jurisprudence]: “First, because only a ‘treaty’ is the Supreme law of the land, a mere executive agreement could not overturn statutorily-imposed sanctions.” Eastman continued in an e-mail, “And neither, in my view, could a change in the constitutionally-mandated default rule for adopting a treaty. Second, if that is true, then members of the Senate who, collectively, had the votes to prevent ratification of a treaty would have standing to challenge the process that negated their vote. That’s the Coleman v. Miller case on all fours.” This 1939 landmark decision ensured that Congress was empowered to specify a deadline by which an external entity was to affirm proposed legislation, such as a Constitutional amendment.

The Ottoman-Islamic defeat at the “Gates of Vienna” in 1683 is on the verge of being reversed by Obama/Kerry and their P5+1 partners, again in Vienna; the irony is that the West is validating Iranian-Islamic supremacism. It seems only the U.S. Senate can rescue (Judeo-Christian) Western Civilization from the Administration’s collaboration and perfidy.

The Senate must definitively impose a limit to the President’s executive lawlessness before a constitutional crisis erupts. Resolution by the courts may be the most effective way to check and to balance the scales that Obama has usurped.

Robert B. Sklaroff, M.D. is a physician-activist and may be contacted at rsklaroff@gmail.com. Lee S. Bender, Esquire, is an attorney, activist and co-author of the book, “Pressing Israel: Media Bias Exposed From A-Z.”

August 29, 2015 | 74 Comments »

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50 Comments / 74 Comments

  1. The conservative Rep are impotent and incompetent. They will do nothing about Iran because the Obama deal benefits the military-industrial complex! On top of it, they are no fervent supporter of Israel. So forget the rhinos. Now who will fund the IAEA if the US congress refuses to give a penny? The power of the purse!!!

  3. @ woolymammoth:

    I have seen in all the MSD and alternative media, literally thousands of articles many well written explaining quite well …all or most of the deficiencies of the Iran deal. In the end they all speak to their constituent choirs…. There is only one kind of leverage that has any sway over politicians and that is that they are assured of paying a political and monetary price for voting against Obama… They are beholdin to the party Obama and those who control them…. and they who control them want the deal…. my suggestion was for anti deal proponents to establish a sizable fund to be used in ousting all those key congressmen in the coming election. Digging up any and all dirt to be used against them and making sure they are aware of the personal consequences to them if they vote with Obama. Anything short of such tactics assures Obama win, a potential nuclear attack by Israel down the road against Iran and anyone can speculate on what could or might be the unintended consequences after that….. I personally think it’s too late Obama knew what he was doing and got his guys lined up in lock step and all you amoebas can think of is writing articles and letters…. never worked in the past so why do you think it will this time….. You all mean well but are all in the box thinkers a sure prescription for failure and you will fail again…. 🙂

  4. @ babushka:

    Regime change at this point has about as much chance as you being able to think and analyze rationally based on facts and not wishful thinking, (Zero chance) Didn’t ya know it is the main Iranian opposition that began the Nuke project and popular consensus in Iran is all for Iran becoming an Nuke power and hegemony in the region if not broader… so be careful of what and who you wish for babs 🙂 😛

  9. [done!]

    Also, I already sent it directly to Lieberman in his NYC-office, along with having sent it to his assistant.

  10. Mixing beef and milk ?

    You obviously still haven’t purchased that dictionary. Maybe I will get you one for Ramadan. “Genetically modified” cheeseburgers consist of brisket, kasha, and latkes. Hence the immortality.

    Tea party made up of dead heads and neo Nazis is dead and thank G-d for that.

    This guy makes more sense than you do:

    https://www.youtube.com/watch?v=iJFVuSge_J4

  11. @ rsklaroff: I respectfully disagree about the petition, which should go International, speaking of tsunamis. You are under estimating the value of your work, Doc, quite typical in the profession. INMO.
    How about contacting the following point person at Citizens for a Nuclear Free Iran(nuclearfreeiran.org): patrickdorton@nuclearfreeiran.org
    They are well endowed and set up to post your articles in their “press room” and you can ask Dorton whether he can copy you email and articles to Shelley Berkeley, Joseph Lieberman and the other members of The Board. You can fill him in on the progress you have made with Tea Party and The ZOA.
    I do like Honeybee. Reminds me of Caroline Glick’s sense of humor, but no, that can not be.

  17. @ Ted Belman:

    Would have or could have has no standing fact in this congress republican controlled is in bed and lock step with Obama…..Who agreed in the first place to allow this kind of congressional approval rather than an up/down simple majority vote on the Iran deal??
    The Republican intentionally handed Obama his victory. That means that A- the powers pulling the strings for both parties and they are the same are calling the shots and B- the Jews are wimps with no standing in the congress or the electorate.. The deal will pass Israel and the Jews have taken another hit and it’s time for a reassessment and that includes you.

    Note: Your christrian allies don’t seem to have much influence either haaaa 🙂

  20. rsklaroff Said:

    My goal is to create a tsunami, starting from social-media, mediated via the Tea Party Patriots, and culminating in plans for the 9/9/15 event.

    Tea party made up of dead heads and neo Nazis is dead and thank G-d for that. 🙂

  22. And my goal is to create a genetically modified cheeseburger that endows immortality. My goal is more realistic than your goal.

  23. My goal is to create a tsunami, starting from social-media, mediated via the Tea Party Patriots, and culminating in plans for the 9/9/15 event.

  24. Congress possesses a multiplicity of mechanisms to control the executive. The Constitution endows the House and Senate with enormous influence, ranging from dominion over every penny spent to possessing the ability to override presidential decisions to veto authority of presidential appointments to unlimited subpoena power to impeachment to removal from office. The legislature has a million and one ways to control the executive.

    But they will not control him because – cynically manipulative rhetoric notwithstanding – they agree with what he is doing.

    And with that, rsklaroff, i again salute you:

    https://www.youtube.com/watch?v=Z6xfpLqn5IM

  26. Just funning with him, Ted. There is no Internet Regulatory Commission, but if there were I am certain it would be ecstatic about rsklarloff’s brilliant proposal. The legislative branch petitioning the judiciary to perform the functions that the Constitution assigns to the legislature. Il est le génie!

    I salute you, rsklarloff:

    https://www.youtube.com/watch?v=dYUdoE4gtII

  27. …which is why lotsa info was distilled and disseminated [in the series of essays, actually starting back in May] that diss the ability to apply Corker.

  28. As for whether we seek the ruling of the Supreme Court or encourage the senate to ignore the Corker amendment and declare the Iran Deal is a treaty requiring 2/3 approval in the senate will depend on whether we can bypass the Corker Bill like it never happenned. If the bill declares that the deal is not a treaty, you have no choice but to go to the court for a ruling. If you can ignore it then you should and at the same time apply to the court.

    Even if the Corker amendment accepts that the deal is not a treaty, the senate may be able to pass another Bill claiming it is.

    I might mention I was against the amended bill and was very unhappy when some stalwart Senators like Ted Cruz supported it. Also AIPAC and even ZOA supported it.

  29. My proposal [explicitly citing this piece, which was widely distributed] has been placed onto the agenda of the weekly teleconference of the Tea Party Patriots; hope springs eternal.

  31. Actually, Ted was warned that he could incur sanctions by the IRC (Internet Regulatory Commission) because other websites were complaining that his outstanding blog filled with superb content was making them look bad by comparison. It was only then that he began posting your material.

  33. Because if you are an example of the “thinking-individual”, then the “thinking-individual” is estranged from reality and also quite snide.

  34. Listen to him, and he says that corporate interests fear the thinking-individual, so why not attempt to attain that status?

  35. Why can’t any of you state the obvious.

    On matters involving the transference of great wealth, the United States is not a democracy. It is a corporate kleptocracy. Trades agreements. Illegal immigration. Obamacare. The Iranian capitulation. These issues all involve transferring massive sums of money to the financial elite. On each of these matters, the big money interests always prevail.

    If you really believe that lawsuits and petitions will prevent Corporate America from attempting to get its covetous hands on that $150 billion, knock yourself out. Never mind that the politicians and judges you will beseech are owned by Corporate America. Just launch that sixth grade civics lesson into action and patriotically participate as a citizen activist influencing our democracy within a republic.

    https://www.youtube.com/watch?v=hYIC0eZYEtI

  36. Afraid time is too tight for petitions; please disseminate concept and remit your e-mail address so that I can provide copies of future pieces.

  37. @ rsklaroff:Sure, a petition, to be signed online,at home, at work, or
    any place including at the big demonstration, where people will want to have reason for some hope. Posted directions to read your excellent articles and sign petitions online while at the demonstration. What are the speakers at the demonstration going to talk about in terms of what can we do. Let them get the word out about the initiative, where to read more about it and sign the petition on line. I cannot help but think our host Ted, who is obviously sympathetic would not do anything he could to assist you in establishing your
    Living Petition. It may be a challenge to get it set up in a week, but stranger things have happened. If Cruz and/or Trump like the idea, it may make prime time and I hope it does. How can they not like it. Morton Klein is a class act on steroids, he will not let your idea fall through the cracks.

  39. I have been pushing this perspective virtually alone – invoking support from Ted Belman in May, plus Richard Baehr and editors Tom Lifton and Joseph Picard – facilitated by brainstorming from Lee and Steve Feldman.

  40. I also am communicating with Tea Party Patriots and chatted with a leader (about the Draft) a few hours ago, I am supposed to testify midday on the 9th but may be able to attend @ 2.

  41. I spoke with Mort – who knew my father- on Friday, and he was sent a Draft of a follow-up column a few hours ago.

  42. Why can’t any of you state the obvious. This is good work and warrants immediate and unanimous support.
    Doc, are you going to Ted Cruz’s public demonstration against the Iran Deal,(co-sponsored by Morton Klein and The ZOA).
    I suggest you phone Barbara Tuchman ESQ at ZOA and have her hook you up with Morton, Ted and if possible Trump. I am not jesting.
    Wooly Mammoth, RN, Main OR, Perioperative Circ/Scrub
    Kudos to Ted for publishing this.

  46. We are infinitely ignorant here. Why have our legislators failed to act? Rampant speculation is possible, but just as we lack information about President Obama, just as we lack information about his goals and must speculate, we lack, as well, information about our legislators. When such events in science raise their head, scientists try to define the event space, so that each point in that space has a definition.

    Here is my poor attempt to mimic what real scientists do; to define all possible reasons for the policy of inaction on the part of our elected leaders. Our legislators

    1) Lack courage to act
    2) Lack intellectual ability to handle the information about this JCPOA project
    3) Lack interest in tackling the problem
    4) Agree with the weak contract to control Iran’s nuclear weapons effort
    5) Fear for their positions
    6) Fear for their personal safety and reputation
    7) Are Communists or fellow-travelers
    8) Are not interested in any of the responsibilities that they were elected to carry out.
    9) Are expecting Israel to pull their chestnuts our of the fire by handling the problem for America
    10) Are interested in seeing Shi’ites and Sunnis slug it out and thus reduce the threat to the West
    11) Are hoping for conflict among Muslims to bring about a reform of their religion
    12) Believe with perfect faith that Islam should rule the world under a Caliphate
    13) Just want to see a good fight in the Middle East
    14) Want a nuclear confrontation between Israel and Iran.
    15) Want contracts with Iran to build American business interests just like the Europeans
    16) Believe they can move to another planet if things go very wrong here.
    17) Have no interest in the survival of humans who have overpopulated and polluted the world.

  48. The congress has been powerfully impotent and incompetent.
    From now on, European governments decline any responsibility when it comes to protecting their citizens against terrorism. That is why American citizens must keep their right to bear arms.

  49. There is insufficient time to await the results of future elections when this deal must be stopped ASAP; also, the SCOTUS has stopped BHO in other contexts, prominently interim-appointments.

    The major defect in this posting, however, is shared by too many people in the media, focusing on Dems rather than R’s, missing the gravamen of this and prior essays: we lose if we comply meekly and ignorantly with the Corker-Cardin bill, increasingly recognized to be intellectually vacuous.

    Illustrative of how unrealistic this posting actually is, is the suggestion that BHO be impeached; perhaps its author may wish to contemplate the immediate impact on the filing of such litigation on the political and emotional landscape.

  50. The Senate has full constitutional authority under the Treaty Ratification Provision to reject the deal. This is a legislative matter. Furthermore, it is irrational to expect this Supreme Court to overrule Obama on major policy matters. It has already genuflected before him on amnesty and Obamacare. There is no rational reason to believe the high court will suddenly become ethical.

    The Senate must definitively impose a limit to the President’s executive lawlessness before a constitutional crisis erupts

    The constitutional provision for dealing with this consideration is called “impeachment”, which is also a legislative function. It is futile to hope that the judiciary will assume responsibilities the legislature shirks.

    Congress is fully empowered to deal with the criminality and malfeasance of Obama. Yet as with amnesty and Obamacare, GOP leadership actually supports the Obama position on Iran. Despite the cynical dramatics performed to manipulate Republican voters, Boehner and McConnell invariably find a way to rubber stamp the Obama agenda, which is virtually indistinguishable from the Chamber of Commerce agenda.

    The electorate had the chance to stop the Obama Reign Of Terror by supporting Tea Party challengers during the 2014 election, and the electorate failed. The judiciary will not now intervene on behalf of a corrupt Congress or the masochistic voters who elected it.