On Monday, the United States prepares to enter unchartered territory as President Obama’s nuclear deal with the Islamic Republic of Iran goes into effect with his signature on executive orders lifting economic sanctions on Iran even as constitutional lawyers on both sides argue that the president’s has violated federal law with the his action.

Both Secretary of State John Kerry and the International Atomic Energy Agency have confirmed that Iran has met the requirements allowing the Islamic regime to demand the immediate release of billions of dollars of frozen assets and pave the way for renewed commerce with the West.

The Joint Comprehensive Plan of Action (JCPOA was finally reached on July 14, 2015 as the U.S. participated with five other countries, the so-called P5+1: China, France, Germany, Russia and the United Kingdom, however, according to many legal analysts and even some senior U.S. officials, who have commented only on condition of anonymity, the deal fails to meet constitutional muster leaving it open to challenge in federal court.

The president’s deal is not a treaty, nor has it been approved by Congress; it is merely an executive order, which are subordinate to duly enacted federal laws, and one that cannot be put into effect without violating an existing law.

The conflict comes from statutory provisions in the Iran Threat Reduction and Syria Human Right Act (ITRA), a law enacted by Congress and signed by President Obama in 2012 that prohibit funding to reach radical countries like Iran that finance terrorism.

Because Iran remains on the U.S. State Department’s terror list, the requirements of ITRA have not been met that would allow Iran to receive the sanctions relief provided in the president’s deal.

While commending the president, former Secretary of State and candidate for the Democrat nomination for the presidency was quick to assert her own involvement in the process that took two years to finalize. “I congratulate President Obama and his team. And I'm proud of the role I played to get this process started.”

Republican candidates noted the threat to the security of America and to Israel, as well as the danger created by the flood of billions dollars into Iran, which is still regarded as the chief exporter of terrorism in the world.

President Obama’s deal provides that the United States will allow U.S. controlled entities to engage in commerce with Iran if it complies with the terms of the JCPOA, which is in direct violation of the 2012 law the president signed explicitly forbidding such entities from doing so until Iran has been removed from the State Department’s list of countries that sponsor terrorism.

The conflict between the statutory language signed into law by the president and that in the deal enacted by his executive order is reconcilable by the long-standing rule that duly enacted statutory law takes precedence over an executive order.

Secretary of State John Kirby has said that the Obama administration has the power to disregard the statutory provision based on the International Emergency Economic Powers Act, but Senator Ted Cruz, candidate for the Republican nomination for the presidency, says that the action fits Obama’s “pattern of enforcing federal laws on a selective basis.”

One of the possible consequences of Obama’s action is that foreign subsidiaries owned by U.S. entities will likely face civil and criminal liability for violating the existing statute prohibiting commerce with a nation listed on the State Department's terror list, as outlined in the ITRA

 

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