How far will Obama's 'encouragement' to states to drop Iran sanctions go?

|The Volokh Conspiracy |

The Obama administration has been writing letters to all 50 state governors, urging them to reconsider economic sanctions they have against Iran. Almost half of U.S. states have adopted such measures, which were explicitly authorized by statute in the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA).

"I would urge you to consider whether the implementation of the JCPOA, which verifiably ensures that Iran's nuclear program is and will remain exclusively peaceful, addresses the underlying concerns with Iran articulated in your state's law," one of the letters stated.

Indeed, one of the more controversial components of JCPOA was that the U.S. would "actively encourage" state and local governments to drop sanctions related to Iran's nuclear weapons program. The question now is whether this mass letter represents the completion of what the administration thinks the JCPOA requires or authorizes it to do, or whether it will go further, such as suing state governments to lift sanctions or attempting to "declare" state laws preempted despite the clear contrary language in CISADA.

In today's State Department briefing, spokesperson James Kirby dodged questions about whether the administration would take further action to attempt to remove state sanctions.

I have previously written about how the JCPOA's failure to comply with the provisions of Corker-Cardin effectively locks in prior sanctions and prevents the administration from lifting state nuclear-related sanctions authorized by CISADA. Indeed, the main obstacle to challenging the administration's compliance with CISADA has been standing. Thus any executive action against states would open the door to broad challenges to the Iran deal itself, playing into the litigation strategy I described in the fall.

Even aside from Corker-Cardin non-compliance, the JCPOA itself cannot upend state sanctions laws. The JCPOA is not a treaty, and thus cannot override statutes, like CISADA.

Indeed, the Obama administration's "encouragement" of states to reconsider sanctions is reminiscent of an earlier executive "encouragement" of states to comply with the U.S.'s international undertakings. In 2005, President George W. Bush wrote letters to states urging them to comply with an International Court of Justice ruling concerning criminal procedure.

The U.S. has accepted the ICJ's jurisdiction in cases concerning the Vienna Convention on Consular Relations, and as part of the U.N. Charter had "undertake[en] to comply" with ICJ decisions. In 2004, the ICJ ruled that certain foreign nationals who had been convicted in U.S. state courts without having been notified of their consular rights under the Vienna Convention should have their criminal cases reheard.

Bush attempted to enforce this decision against the states by asking them to follow the decision:

I have determined, pursuant to the authority vested in me as President
by the Constitution and laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena … by having State courts give effect to the
decision

Texas courts refused to comply, arguing that the president lacked constitutional authority to direct them to comply with the ICJ judgement, and in Medellin v. Texas, 552 U.S. 491 (2008), the Supreme Court agreed. It did so despite finding that the U.S. clearly had an international legal obligation to give effect to the judgment; but the U.S. acceptance of the legal obligation did not give the president the relevant domestically enforceable powers against states.

The Iran sanctions would be an even weaker case for the administration, because the JCPOA is not a treaty, unlike the Vienna Convention and U.N. Charter, and may not even be an internationally binding obligation. Nor does the JCPOA purport to give the president any additional domestic power relative to state sanctions laws; indeed it only calls on the president to "encourage" states using "available authorities."

Unless he is merely hoping overworked state attorneys general are likely to blink first, President Obama is unlikely to push this matter further with the states. If he does, he is likely to lose on the state sanctions issue and may well open the door to a broader legal inquiry into the legal status of the Iran deal.