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Will Republicans Protest and Litigate to Stop Iran Nuclear Pact?

stop iran rally september 9thWhere there were five undeclared Democrat Senators on the cusp of reconvening Congress, today there is only one, Ms. Cantwell from Washington State. Three Democrat Senators: Richard Blumenthal of Connecticut, Ron Wyden of Oregon and Gary Price of Michigan declared for the President’s position. Two of the three Democrat Senators who declared for the President position, Blumenthal and Wyden are up for re-election in 2016, while Price is not. The lone Democrat who joined with the Republican majority to oppose the Iran Pact is West Virginia Senator, Joe Manchin.

In a statement released by his office, Manchin said, “I believe that to be a super power, you must possess super diplomatic skills, and I believe that we can use these skills to negotiate a better deal.”

That leaves possibly 58 Senators, 54 Republicans and four Democrats opposing the Iran nuclear pact. That is two shy of the required 60 votes for cloture under the current Senate Rule 22 to cut off a filibuster. A vote on the majority resolutions rejecting the Iran pact could be scheduled as early as Thursday. That is, if the promised filibuster led by Senator Minority Democrat Leader Reid doesn’t stop the vote first.

Reid unleashed the filibuster option on Saturday, September 5th. White House Spokesperson Josh Earnest said Tuesday, September 8th:

It would be a little ironic for now Majority Leader Mitch McConnell to express concerns about a tactic that he, himself, employed on countless occasions. The other thing that I’ll point out is that the 60 vote threshold is actually one that was approved by the 98 senators who voted for the Corker-Cardin legislation back in the spring.

Opponents of the Iran nuclear pact circulated a letter on Capitol Hill today signed by 15 governors including  four  Republican hopefuls; Jindal of Louisiana, Christie of New Jersey, Kasich of Ohio and Walker of Wisconsin.  Republican majority and other opponents of the filibuster floor maneuver by minority Democrats criticize it for denying an up or down vote on the measure that Americans in leading polls taken by a 2 to 1 margin have urged Congress to reject the Iran deal.  Harvard law professor emeritus, Alan Dershowitz, author of The Case Against the Iran Deal said in a Steve Malzberg Show interview on NewsMax TV, September 3, 2015:

As an opponent of the deal, a filibuster would be a good result because it would deny legitimacy to the deal. The American public is not going to accept a deal that was filibustered. Let’s remember what a filibuster is. It was a southern strategy designed to undo democracy and to offend equality.

Dershowitz drew attention to the quandary that Israel and PM Netanyahu would face if the Iran pact was approved:

I know Benjamin Netanyahu. I’ve known him since 1973. He is not going to sit back and allow Iran to develop nuclear weapons.

This deal makes it much harder for Israel to defend its people.

In a Washington Post opinion article by Rep. Mike Pompeo (R-KS), member of the House Permanent Intelligence Committee, and Constitutional lawyer, David B. Rivkin, Jr.  Senior Fellow at the Foundation for Defense of Democracies argued that the failure to deliver a side deal might void the Iran pact. Further they raised the prospect of   possible litigation against the President on the grounds that the he didn’t deliver the requisite information. They were especially concerned about the IAEA side agreements with Iran to prepare a Road Map on prior military developments. Aversion of which was leaked with provisions for self inspection at the military site of Parchin, Iran.  That Road Map is a condition for release of $100 billion in sequestered funds held by US and foreign financial institutions.    Switzerland has already released their sanctions and Russia and China are poised to release their holdings. The EU3 component of the P5+1 are already in discussions with Tehran over billions of trade deals preventing a possible snap back of sanctions should Iran be found cheating on a sneak out to a nuclear weapon.  A weapon that some believe it may already have and be able to possibly via a satellite launch.

The Pompeo- Rivkin Washington Post opinion was earlier supported by Jerome Marcus, Esq. in a Wall Street Journal opinion piece, An Informed Vote on the Iran Deal.”  Marcus suggested  based on his experience as a young lawyer assisting former State Department counsel, Abraham Sofaer in the Reagan era,   executive agreements like JCPOA with far reaching implications should be treated as if it was a treaty.  Marcus concluded:

The lesson for today is clear: When a legislative body is deciding whether to approve an international agreement, especially one as important as the recent nuclear agreement with Iran, its members have the right to access the agreement’s negotiating record. Members of Congress should demand that record now, and they should examine it, before they cast their votes.

To bring such a suit Dr. Robert B. Sklaroff and Lee S. Bender, Esq. suggested in a FrontpageMagazine article that the Senate Majority Leader, McConnell should undertake the following steps:

Emergency Prescription for Senate:  [1]—Pass rule that abolishes the filibuster; [2]—Pass resolution declaring the Iran nuke deal to be a “treaty”; [3]—Defeat the deal; and [4]—Sue President Obama to enjoin him from implementing the deal.

The procedures for initiating the first critical step, achieving cloture cutting off the threatened filibuster, are contained in two relevant Congressional Research Service reports; Considerations for Changes in Senate Rules by Richard S. Beth, January 2013 and Filibusters and Cloture by Beth and Valerie Heitschusen, December 2014.

Sklaroff heard Dershowitz at a presentation in Cherry Hill, New Jersey on September 2nd.  He reported on Dershowitz’s remarks and response:

On September 2, Dershowitz, at the Jewish Community Center in Cherry Hill, N.J., amplified on this viewpoint, quoting Federalist 64:  “The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.”

When I [discussed] with him the necessity to sue Obama, he initially raised concern that this would be discarded as a “political question.” “Who would sue?” he asked rhetorically. “Senator McConnell!” said I. “Well, it’s a possibility, because he would have standing, representing the Senate.”

Has such a suit been brought by the Senate against President Obama and the Supreme Court ruled on the matter of executive overreach of lawful authorities?   There is the example of the Supreme Court   June 2014 unanimous ruling against the President for his three day recess appointment of National Labor Relations Board and Consumer Protection officials in 2012 that required approval by  the Senate.  The original matter was brought by a Washington State bottler and a decision rendered in the DC US Circuit Court of Appeals by Judge David B. Sentelle. Note the comments of the Republican Counsel for the Senate and then Senate Majority Leader Reid from a Washington Post article:

Miguel Estrada, who represented Senate Republicans in the case, called the ruling a victory for the Senate. “The Supreme Court reaffirmed the Senate’s power to prescribe its own rules, including the right to determine for itself when it is in session, and rejected the President’s completely unprecedented assertion of unilateral appointment power,” he said.

But Senate Majority Leader Harry M. Reid (D-Nev.) blamed Senate Republicans for denying nominees a chance to be confirmed through a vote of the full chamber. “President Obama did the right thing when he made these appointments on behalf of American workers.”

Tomorrow, September 9, 2015, Democrat Presidential front runner Hillary Clinton former Secretary of State, embroiled in a private email server controversy, will make the case for support of the President’s position.  She has previously gone on record saying:

The Europeans, the Russians, the Chinese, they’re gonna say we agreed with the Americans, I guess their president can’t make foreign policy. That’s a very bad signal to send.

Clinton will be a minor distraction from the Tea Party Patriots (TPP) Stop Iran Now Rally chaired by Jenny Beth Martin on the West Lawn of the US Capitol Building with a cast of media luminaries in the opposition camp.  The event is co-sponsored by TPP, Zionist Organization of America and the Center for Security Policy. The roster of those speaking includes TPP head Martin, Republican Presidential front runner Donald Trump, fellow Presidential hopeful Ted Cruz (R-TX), Conservative talk show Hosts Glen Beck and Mark Levin, David Bossie of Citizens United, Rep. Trent Franks (R-AZ), Chairman of the Congressional Israel Allies Caucus, former CIA-director, Ambassador R. James Woolsey, Chairman of the FDD, Frank Gaffney of the CSP, Sarah Stern of EMET and Mort Klein of the ZoA. This will be a media spectacle.

Late this afternoon, my colleague at 1330amWEBY Mike Bates, host of “Your Turn”, and I reviewed these developments.  Listen to the WEBY audio segment here.  Bates observed that the motivation behind these political maneuverings was President Obama’s objective all along to bolster Iran’s position in the Middle East as a recognized nuclear threshold state threatening traditional support for Allies in the region, Israel, Saudi Arabia, the Emirates and Egypt. Bates thought the Reid filibuster play was simply a travesty of politics as usual in Washington.   In turn we both discussed the strange case of Florida US. Representative and Democratic National Committee head, Debbie Wasserman-Shultz, who has infuriated segments of her large but divided Jewish constituency.  In her public statement she said tearfully that from her “Jewish heart” the Iran pact, as defective as it is, was the correct thing to do.  We concurred that the filibuster if not upended by a Republican cloture to force an up or down vote would enable her and other Democrat colleagues up for re-election in 2016 to claim that there was never a vote. Political cover that comes at a high price of Iran receiving tens of billions now with promises of trillions in economic trade benefits. All while harboring secret development of nuclear weapons threatening the U.S. and Israel.

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EDITORS NOTE: This column originally appeared in the New English Review.

The Senate Must Sue Obama to Block the Iran Nuclear Treaty by Robert B. Sklaroff, M.D. and Lee S. Bender, Esq.

When we published “How Best to Overturn the Iran Nuclear Pact” in the August 2015 New English Review, we reviewed several options. One proposal suggested by Dr. Robert B. Skalorff entailed direct litigation by Congress before the Supreme Court under provisions of the US Constitution seeking a ruling  treating   the Iran nuclear pact as a  treaty requiring  advise and consent of the Senate . We  wrote:

That proposal entailed independent Congressional litigation on demonstrable Constitutional legal grounds regarding executive overreach. If the Senate was granted standing on direct appeal, based on the B. Altman SCOTUS ruling, it might result in a predisposed SCOTUS rendering a positive ruling thus quashing the Iran nuclear pact. Further, the ruling might unfetter the hands of any successor to President Obama on inauguration day in 2017 to undertake remedial actions. Such actions might reduce the current existential threats to both the US and Israel.

In furtherance of that original proposal we are publishing  the following article by Dr. Robert A. Sklaroff and Lee S. Bender, Esq. which expands upon the original concept noting support from  Constitutional law experts and applicable case citations.

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.”

RELATED ARTICLE: Iranian national arrested in Hancock County, Mississippi accused of tackling deputy, making terroristic threats

EDITORS NOTE: This column originally appeared in the New English Review.

VIDEO: J Street — Pro-Peace, Pro-Israel, Pro-Iran?

The J Street Challenge jpeg_ 2-19-14Charles Jacobs of Americans for Peace and Tolerance (APT) posted this hard hitting YouTube video part of APT’s  J-Street Challenge film, Pro-Peace, Pro-Israel, Pro-Iran?  The focus in this brief YouTube  is on the interlock between J-Street and the alleged pro-Islamic Regime lobby group in Washington, National Iranian American Council headed by Swedish Iranian citizen Dr. Trita Parsi.  Parsi has deep connections inside the Obama White House, Sahar Nowrouzzadeh, a former NIAC employee who is now the NSC Director for Iran.

You may have noticed the President’s remarks in a joint Press Conference with Italian President Renzi about  ‘creative negotiations over lifting ‘sanctions’ should a final agreement surface by June 30, 2015, a big if. After all, as Ayatollah Khamenei said this weekend, its “just a myth” that Iran is intent on creation of a nuclear weapon.

Breitbart News in a March 31st, 2015 dossier article on Ms. Nowrouzzadeh reported:

Found that a person with the same name has previously written several publications on behalf of NIAC. According to what appears to be her LinkedIn account, Nowrouzzadeh became an analyst for the Department of Defense in 2005 before moving her way up to the National Security Council in 2014.

A NIAC profile from 2007 reveals that Sahar Nowrouzzadeh appears to be the same person as the one who is currently the NSC Director for Iran. The profiles indicate that she had the same double major and attended the same university (George Washington).

Critics have alleged that NIAC is a lobby for the current Iranian dictatorship under Ayatollah Khamenei. A dissident journalist revealed recently that NIAC’s president and founder, Trita Parsi, has maintained a years-long relationship with Iranian Foreign Minister, Javad Zarif.

NIAC was established in 1999, when founder Trita Parsi attended a conference in Cyprus that was held under the auspices of the Iranian regime. During the conference, Parsi reportedly laid out his plan to introduce a pro-regime lobbying group to allegedly counteract the influence of America’s pro-Israel and anti-Tehran regime advocacy groups.

NIAC has been investing heavily in attempts to influence the talks in favor of an agreement with the state sponsor of terror. In recent days, its director, Trita Parsi, has been spotted having amiable conversation with Iranian President Hassan Rouhani’s brother.

The APT J Street Challenge You Tube Video has appearances by Lenny Ben- David, former Deputy Mission Chief of the Israeli Embassy in Washington and Harvard Law Professor Alan Dershowitz.  Ben David surfaced a few names George Soros, and Genevieve Lynch.  Soros is a major donor to J Street and anti-Israel and pro-Islamic Regime related NGOs.  Ms. Lynch is a board member of both NIAC and J Street.  Dershowitz even offered to donate money to J Street if they could explain their support for lifting Iran sanctions and being pro-Israel in the light of comments during Iranian Army Day of “Death to Israel” and “Death to America”  or the comment by the commander of Iranian Basij paramilitary groups saying that “destroying  Israel was non-negotiable.”

Ben-David did his homework over the last several years and combed the J Street IRS Form 990 that lists major donors, the names of both Ms. Lynch and billionaire hedge fund mogul Soros popped up.

Back in 2010, Ben-David wrote this about Ms. Lynch interesting Middle East connections in a Jerusalem Post op-ed, “J Street Has No Shame”:

In August 2009, the Jerusalem Post first reported, “Muslims, Arabs among J Street Donors.” Among the donors, the Post article revealed was “Genevieve Lynch… a member of the National Iranian American Council board.

Lynch, the NIAC board member and a member of J Street’s Finance Committee, is listed contributing $10,000 in October. At one point last year, J Street and NIAC leaders worked together to block anti-Iran sanctions measures proposed by Congress. Belatedly, J Street changed its position and supported sanctions.

For more about Ms. Lynch, see here.  For more about Trita Parsi and NIAC, Read  NER contributor Michael Curtis’ American Thinker article, “Friends of Iran in America,” here.

Watch the APT J Street Challenge YouTube video:

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EDITORS NOTE: This column originally appeared in the New English Review.