US Senate’s anti Russian sanctions are unconstitutional

The US Senate – as universally predicted – has approved by a 97-2 margin further sanctions against Russia, codifying sanctions previously imposed by US President Obama into law.

The supposed purpose of these sanctions is to “punish” Russia for its alleged interference in last year’s US elections.

That alleged interference by Russia in last year’s US elections is supposed to be the subject of an investigation by Special Counsel Robert Mueller.  The Senate is pre-empting the result of that investigation and is assuming its outcome before it reports.

Putting that aside, the true reason for this law – as everyone knows – is to prevent President Trump from implementing the policy he was elected on, which is to achieve a rapprochement between the US and Russia.  As such it is a straightforward attempt by the Senate to interfere in the President’s conduct of foreign policy.

Whilst the US constitution does not define the President’s power to conduct foreign policy precisely (a good discussion of the issue can be found here) I personally have no doubt this law crosses the line, and infringes on the President’s constitutional right to conduct foreign policy in the best interests as he judges it of the United States.  Indeed, as I have said, that is the actual intention of the law.

This law will only come into effect if the House of Representatives also votes for it.  It is overwhelmingly likely that it will, though it is fair to say that House Republicans have shown greater skepticism towards the Russiagate allegations and more loyalty to the President than have Senate Republicans.

If the House of Representatives does vote for the law then the President will have to make the difficult decision whether or not to veto the law.  In the present fraught political environment with the Russiagate scandal still ongoing he would probably be wise to sign the law.  The Russians have already made clear that they regard the sanctions as a secondary issue, and that they are prepared to put the sanctions question to one side in the interests of achieving a better understanding with the US on questions of mutual interest.

I would however hope that whatever the President eventually decides to do this law will eventually be referred to the Supreme Court.  It seems to me that the legality of this law is a matter of genuine constitutional importance irrespective of the question of the US’s current relations with Russia, and that the Supreme Court should therefore rule on it.