One Vote Away: How a Single Supreme Court Seat Can Change History

by Ted Cruz

  One particularly galling example was the Obama Iran nuclear deal, otherwise known in Washington-speak as the Joint Comprehensive Plan of Action (“JCPOA”). At the time of the international and internal debate over this highly flawed accord, I was its most vociferous critic. From day one, the Iran nuclear deal was a foolhardy and dangerous capitulation to Tehran’s jihadist regime. It was a devastating blow to America’s security, to our ally Israel’s security, and to the security and stability of the broader Middle East.

  Iran’s Islamic revolution erupted in 1979, as religious radicals overthrew the secular government and took 66 Americans hostage, eventually holding 52 of them for 444 days. While our hostages languished in captivity, President Jimmy Carter wrung his hands, unsure of what to do. He eventually approved a military rescue mission, but our helicopters crashed tragically in the desert under no opposing fire. Our hostages were finally released on January 20, 1981, the day that Ronald Reagan was sworn into office.

  Against bullies and tyrants, weakness does not work. Only clarity and strength have any demonstrable record of success. History teaches repeatedly that appeasement is provocative, ironically increasing the chances of military conflict. As I have joked, there is a reason nobody studies at the Neville Chamberlain school of foreign policy.

  The Ayatollah Khamenei hates America. He is a religious zealot who regularly leads mobs in chanting “Death to America.” Indeed, Iran each year celebrates as a holiday “Death to America” day, commemorating their taking of our hostages in 1979. He routinely refers to Israel as “the little Satan,” and the United States as “the great Satan.”

  Iran is the world’s leading state sponsor of terrorism. Over the past four decades, they have spent tens of billions of dollars funding jihadists all over the world, in the Middle East, in Africa, in Europe, in South America, and in the United States.

  The Obama Iran nuclear deal allowed over $100 billion in frozen offshore assets to flow into Iran, with the promise of hundreds of billions of dollars more in sanctions relief. Additionally $1.7 billion in cash was flown on pallets in the dark of night into Iran as ransom for hostages. Normally, laundering money on secret pallets of unmarked bills is indicative of wrongful conduct, and that was certainly true with this ill-advised deal.

  As then-Secretary of State John Kerry later admitted less than a year after the nuclear deal was inked, “some” of the $150 billion in sanctions relief that the deal brought to fruition “will end up in the hands of the Iranian Revolutionary Guard Corps or other entities, some of which are labeled terrorists.” Kerry admitted, that is, that the flooding of American dollars into Iran would be used to murder Americans. “I’m not going to sit here and tell you that every component of that [funding] can be prevented,” Kerry continued.

  If history teaches anything, it is that when people tell you they want to kill you, believe them. Or, at a minimum, don’t give them hundreds of billions of dollars to help them accomplish their objective.

  But, for whatever reason, Obama desperately wanted a deal with Iran. Indeed, Ben Rhodes, Obama’s deputy national security advisor (and, it so happens, the brother of the head of CBS News), described their objective of completing an Iran nuclear deal as “the Obamacare of the second term” (which I think he meant as a compliment).

  At the time, much of the rest of the world thought this plan was madness. I recall ambassadors from major European allies sitting in my office, asking for my help to try to stop the deal; the Obama administration was putting the full force of U.S. foreign policy behind it, and they wanted assistance pushing back.

  On the face of the deal, there were numerous obvious failings: before any facilities could be inspected to determine if nuclear weapons were being developed, Iran had to receive twenty-four days advance notice (plenty of time to scrub the facility); certain “military” facilities were exempted from inspection (obviously, where Iran would base their nuclear weapon development); for one military facility where Iran had done nuclear weapons work, Iran would be trusted to “self-inspect”; and the deal gutted limitations on Iran’s continuing to develop ICBMs (intercontinental ballistic missiles that would be used to carry a nuclear warhead to the United States). Nor did the deal put any constraints on Iran’s continuing to fund anti-America and anti-Israel jihadists. And, by its own terms and according to even President Obama, as the deal began its “sunset” in a little over a decade, the international world would entirely allow Iran to develop everything it needed for nuclear weapons.

  Any rational commander in chief should make clear and unequivocal: under no circumstances will the Ayatollah Khamenei ever be allowed to acquire nuclear weapons.

  On March 3, 2015, Israel’s prime minister Benjamin Netanyahu gave a powerful—even Churchillian—speech before a joint session of Congress, which, sadly, many Democrats boycotted. He explained: “Iran’s regime is not merely a Jewish problem, any more than the Nazi regime was merely a Jewish problem. The six million Jews murdered by the Nazis were but a fraction of the 60 million people killed in World War II. So, too, Iran’s regime poses a grave threat, not only to Israel, but also the peace of the entire world.”

  On September 9, 2015, I helped organize a rally against the Iran deal on the steps of the Capitol. Thousands came out to join us to oppose funding the world’s leading state sponsor of terrorism. At the time, I was running for president, and I made the unusual decision to invite one of my opponents in the race, Donald J. Trump, to join me at the rally. Generally speaking, you don’t invite your opponents to participate in your political rallies, but I cared passionately about the issue, and I knew that Trump’s attendance would bring TV cameras like rats following the Pied Piper to the Capitol steps.

  When Trump was elected president, I began working with him very closely, on a weekly or even a daily basis, on a number of issues, especially concerning foreign policy and national security. In the first few years of the administration, that was manifest most significantly in two interrelated policy decisions: moving our embassy in Israel to Jerusalem, and pulling out of the Iran deal.

  During the 2016 presidential campaign I had pledged to make both decisions on my first day in office. And within the Trump administration, both proved hotly contested.

  Both State and Defense were strongly opposed to moving our embassy in Israel. For years, Democratic and Republican presidents had promised to move our embassy to Jerusalem, and presidents of both parties had repeatedly broken that promise. For other countries, America puts our embassy in the capital city. But for Israel, our embassy was in Tel Aviv, because the Palestinians dispute Israel’s right to have Jerusalem as their capital. For that reason, Secretary of State Rex Tillerson and Defense Secretary James Mattis both argued that moving our embassy would enrage the enemies of Israel and impede the Middle East peace process.

  I strongly disagreed. I urged President Trump that strength and clarity were the only ways to make progress in the Middle East. And if we moved the embassy to Jerusalem, our Arab allies—in Egypt and Jordan and Saudi Arabia—even though they would feel obliged politically to publicly denounce the decision, would be secretly overjoyed. I argued those allies would reason that any president with the courage and backbone to stand up to the torrent of criticism from the world and the New York Times on the issue of Jerusalem, would maybe, just maybe, have the courage also to withdraw from the Obama Iran nuclear deal, which they rightly viewed as profoundly dangerous to their security and to ours.

  President Trump agreed with my advice and overruled his own State Department and Defense Department. He courageously did what prior presidents had feared to do: he moved the U.S. embassy in Israel, and I was there in Jerusalem the day our embassy opened, on the seventieth anniversary of the creation of the modern state of Israel. It was a powerful, moving experience. At the opening, I visited with multiple Americans and Israelis moved to tears, including one woman who was a Holocaust survivor and simply said, “I never thought I would live to see it happen.”

  I
do not believe it was a coincidence that within one week of opening our embassy in Jerusalem we also announced that we were withdrawing from the Obama Iran deal.

  As with the embassy, both State and Defense fought hard to prevent it from happening. Tillerson and Mattis both vigorously defended the deal and pressed Trump hard to stay bound by it. Repeatedly, I made the case directly to President Trump that we should pull out of the deal, that sending billions to a religious zealot who wants to murder us was profoundly dangerous.

  And, as with the embassy, Trump ended up agreeing with me and overruling both State and Defense. I believe that pulling out of the Obama Iran deal was the single most significant national security decision made by President Trump.

  That decision also highlights the ongoing threat to national sovereignty we see from modern-day Democrats and from transnational institutions. In support of the deal, Secretary Mattis, both publicly and privately, kept saying “a deal is a deal” and “when America gives her word, we have to live up to it.” That was wrong.

  Put simply, in the Iran deal, the United States did not give its word. There are two ways, and two ways only, that binding law is made under our Constitution: either a statute is passed by both Houses of Congress and signed by the president, or a treaty is signed by the president and ratified by two-thirds of the Senate. Those are the only two ways the United States can make binding commitments.

  President Obama deliberately circumvented the constitutional process. He knew he didn’t have the votes to have Congress pass the Iran deal by statute, nor did he have the votes for the Senate to ratify it as a treaty. So he decided to ignore both.

  Instead, Obama signed the Joint Comprehensive Plan of Action as an international agreement between Iran, the United States, the United Kingdom, France, Germany, Russia, and China. It was announced not from Washington, but in Vienna on July 14, 2015.

  And he didn’t take it to the elected branches in Congress to be adopted or ratified; instead, he took it to the United Nations Security Council.

  Rather than negotiating a treaty that could earn the support of two-thirds of the Senate—admittedly no easy task—the Obama administration chose to “implement” the nuclear deal by having Ambassador to the United Nations Samantha Power cast a UN Security Council vote in favor of UN Security Council Resolution 2231, which was the UN’s way of ratifying JCPOA.

  But, as Medellín made clear, the United Nations cannot make binding law in the United States.

  Not only was Obama’s catastrophic deal not ratified by the U.S. Senate, it was actively opposed by the Senate. A bipartisan majority of the Senate (58–42) voted against the JCPOA and made unequivocally clear that we believed it to be disastrous foreign policy.

  When it comes to presidential power, the seminal case laying out the parameters and limits of the president’s authority is the steel seizure case (Youngstown Sheet & Tube Co. v. Sawyer), in which the Supreme Court struck down Harry S Truman’s attempted seizure of steel plants during the Korean War. The central analysis was in Justice Robert Jackson’s concurring opinion, which explained that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

  Justice Jackson is universally considered one of the most brilliant justices ever to have served. He was a self-taught lawyer who never went to law school, and he became solicitor general and attorney general for Franklin Delano Roosevelt before FDR put him on the Court. After World War II, Jackson took a leave of absence from the Court to serve as the chief prosecutor at Nuremburg, brilliantly trying the Nazi leadership for war crimes. His Nuremburg opening statement was majestic. One passage I long ago committed to memory:

  That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power have ever paid to Reason.

  As a young lawyer, William Rehnquist was a law clerk to Justice Jackson, whom he admired immensely. Every Christmas, Jackson would give each of that year’s law clerks a picture of the Court autographed by all nine justices. On each photograph he would write an identical inscription; as the Chief’s read, “To William Rehnquist, with the friendship and esteem of Robert Jackson.” When Rehnquist became a justice, he continued the tradition; on the wall of my Senate office is a picture of the Court inscribed “with the friendship and esteem of William H. Rehnquist.” John Roberts, too, was a Rehnquist clerk; he has the same photograph, and he has continued the tradition, giving his own clerks pictures “with the friendship and esteem of John G. Roberts.” Three generations of justices over seventy years have used word-for-word the identical inscription.

  Returning to the JCPOA, President Obama’s authority was at what Justice Jackson described as the nadir of presidential power—exercised in direct opposition to the will of Congress.

  For that reason, Secretary Mattis was wrong. The United States did not “give its word”; instead, Obama made a political promise and tried to use the United Nations to carry out an end run around the constitutional provisions for duly ratifying a treaty.

  As we litigated in Medellín, these provisions comprise vital checks and balances in our constitutional system. Binding law in the United States cannot be made without the concurrence of both elected branches: either as a statute, with a majority of both Houses and the president’s signature (or, if vetoed, with the override of two-thirds of both Houses), or as a treaty, with the president’s signature and two-thirds of the Senate.

  Especially in matters of foreign policy and national security, those checks and balances are critical to protecting our nation’s interests. No one president, of either party, has the unilateral power to make binding law. The treaty power is divided between the president and the Senate because the Framers, in their wisdom, understood that it is only healthy to commit the nation to foreign obligations and entanglements when a directly accountable institution, such as a chamber of Congress, agrees to the commitment. It is for the same reason that the Constitution gives Congress the power to declare war.

  And the Senate, in particular, has historically had a central role in foreign policy. Here’s how Senator Henry Cabot Lodge, legendary chairman of the Senate Foreign Relations Committee, put it: “War can be declared without the assent of the Executive, and peace can be made without the assent of the House… but neither war nor peace can be made without the assent of the Senate.”

  The good news about Obama’s circumvention of the constitutional treaty requirements was that it permitted President Trump to pull out of the deal entirely and instantaneously. Obama famously said, in defending unilateral presidential power, “I have a pen and I have a phone.” As he learned with the JCPOA, if you live by the pen, you die by the pen.

  * * *

  Another flash point where U.S. sovereignty is being threatened concerns the International Criminal Court, which is more and more trying to intervene in the domestic affairs of Western democracies—including both the United States and Israel. The ICC, much like the World Court, is an unaccountable transnational tribunal located in The Hague, Netherlands.

  The ICC ostensibly exists to prosecute international war crimes and crimes against humanity. But ever since its inception in 2002, it has had a morally perverse obsession with liberal Western democracies who act in legally and morally justifiable self-defense against radical Islamic terrorist groups.

  For a number of years, the ICC has placed in its crosshairs American troops operating against terrorist enemies in Islamic nations. In fact, earlier this year, the ICC directly authorized an investigation into alleged U.S. “war crimes” in Afghanistan.

  The Trump administration has pressed back hard against this threat to our sovereignty. The State Department rightly announced that it would issue a visa ban on any ICC personnel involved in the ICC
investigations, which prevents them from traveling to the United States. Here’s what Secretary of State Mike Pompeo said in response to the ICC “investigation” of America:

  This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body.… It is all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan, which is the best chance for peace in a generation. The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade, so-called court.

  Like other transnational institutions such as the United Nations or the World Court, the ICC has long been plagued by anti-American animus and virulent anti-Semitism, the latter of which leads them to be obsessed with attacking Israel. When terrorists attack innocent civilians in Israel and the Israeli Defense Force strikes back at the terrorists, the ICC is wont to consider Israel’s self-defense a “war crime.” Of course, the two are not morally equivalent; Hamas terrorists target civilians and innocent women and children. In Gaza, they placed their terror headquarters in the basement of a hospital, using Palestinian mothers and their infants being delivered above as human shields. They were caught storing their rockets in an elementary school for the same reason. As Prime Minister Netanyahu put it—in the midst of Hamas missiles raining down—“We are using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.”

  The first time I met Prime Minister Netanyahu was in 2012, just a few weeks after I had been elected to the Senate. It was my first of four trips to Israel, and much of my discussion with Netanyahu concerned Medellín and how I could help protect both Israel and the United States from the ICC. I’ve met with him many times and have gotten to know him well.