Supreme Law of the Land

Just as Congress gets ready to take up the agreement the Obama administration has inked with Iran, a new question has arisen — could the pact be ripe for attack in a different place, namely the United States federal courts? The question has been raised in an important piece in Forbes.com by an adjunct professor at Brooklyn Law School, Harold Furchtgott-Roth. He questions whether the Joint Comprehensive Plan of Action, which is the formal name for the Iran deal, conflicts with an already existing treaty on nuclear proliferation.That treaty, known as the Nuclear Non-Proliferation Treaty, was ratified in the United States Senate in 1969 and has been in effect since 1970. Professor Furchtgott-Roth raises this question: “Can the administration issue by itself an order that conflicts with that treaty?” He argues that the Iran deal does conflict “repeatedly” with American obligations under the non-proliferation treaty. That would mean that the president is, in and of himself, without authority to enter upon the course of action he is taking.This is owing to what is called the “supremacy clause.” It is the part of Article VI of the Constitution that says: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” The emphasis in the above is ours.What it means is that the Nuclear Non-Proliferation Treaty outranks mere international agreements. And Mr. Furchtgott-Roth has listed three instances where the Iran deal violates the Non-Proliferation Treaty. The treaty prohibits signatories, of which we’re one, from “in any way” assisting, encouraging, or inducing any non-nuclear weapon state in acquiring atomic bombs. Yet the Iran deal, Mr. Furchtgott-Roth notes, ends prohibitions on nuclear weapons after a fixed number of years and provides immediate funding, violating American responsibilities under existing treaty.The existing treaty would, Mr. Furchtgott-Roth argues, also be modified by the Iran deal. That’s because the Iran deal fails to limit Iran’s ability to obtain nuclear weapons after a certain number of years but merely places a timeline on such acquisition. In addition, Mr. Furchtgott-Roth contends, the Iran deal dilutes safeguards regarding verification that the NPT members undertook, by treaty law, to accept. Access already promulgated under the NPT is much broader than under the Iran deal, which lacks for “at all times to all places.” The professor also notes that the Iran deal skirts the non-proliferation treaty’s own method of amendment.Mr. Furchtgott-Roth reckons that Congress could yet find a supermajority in both chambers to block the Iran agreement. But he thinks it unlikely (as do we). He reckons that the more salient question is the “legitimacy of this entire process: Can the administration or an independent agency issue an order that conflicts with a ratified treaty?” He thinks the answer is surely no. If he’s right, it would mean that the appeasement now under way can be reviewed not only in the Congress but also in the courts. Our own two-cents would be to suggest that this be done in parallel with and not in series with — meaning, not after — Congressional review. The supremacy clause is not some flakey point; it’s American bedrock, and deserves to be enforced.

Supreme Law of the Land

Supreme Law of the Land

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