On April 18, 2011 my partner, a former Reagan administration official Anthony Salvia, and I filed a lawsuit in the U.S. District Court for the District of Columbia demanding that U.S. president annuls the Jackson-Vanik amendment in relation to Russia. We argue that since Russia is now a free market economy and has no emigration restrictions at all, it automatically has to be excluded from JVA and that its continued application to Russia is illegal. It is our belief that U.S. president has the constitutional authority to state that and declare the JVA null and void with respect to Russia without congressional resolution as previously stated by Clinton, Bush and Obama. Therefore, the main goal of our lawsuit is to help Barack Obama to close this Cold War chapter once and for all and concentrate instead on positive and mutually beneficial cooperation between the United States and Russia.
The historic nature of this case, even at this point is clear. For almost two decades, three successive US administrations (Clinton, Bush, Obama) have said, in effect, "Gee, we'd love to graduate Russia from Jackson-Vanik but we can't do it without getting legislation through Congress." That excuse ¬ and that's all it is ¬ now has been shown conclusively to be false. The President can permanently lift Jackson-Vanik trade restrictions on Russia any time he wants, without any action by Congress. In fact, the way the law is written, since the finding already was made years ago that Russia permits free emigration, the only finding needed to trigger Russia's permanent removal from J-V trade restrictions has been made ¬ but the White House still refuses. Also, as Richard Perle has indicated, Russia is not a "nonmarket economy country," certainly was not in 1974 (when the Russian Federation was not even an independent state), and J-V does not properly apply to it. In fact, as we argued to the Court, Russia is only on the J-V list because in 1993 Clinton unilaterally (without Congress) deleted the name of the USSR and put on Russia. Obama can take it off just as easily.
Perhaps more significantly, the Administration basically is admitting the plaintiffs (Ed Lozansky and Anthony Salvia) are right about this as a matter of law. While three administrations have claimed the need for Congressional action to "graduate" Russia from J-V trade restrictions, it is highly indicative of the soundness of our case that in its brief to the Court the Department of Justice did not make that claim! They know that under the law as written, there is no such need for permanent removal of trade restrictions.
The politics of this are also important in terms of US-Russia relations, especially during a political campaign season, which already has started in the US and will start in Russia next year. As you may know, both Ed Lozansky and Anthony Salvia are Republicans but supporters of the Obama administration's "reset" with Russia. They believe this suit will empower him. Having clarified his legal authority via this lawsuit, even if the Court does not order him to President Obama can now either use his existing authority to remove Russia from further Jackson-Vanik restrictions (other than a Congressional reporting requirement that even the Justice Department concedes has no effect on Russia's trade status). Or he can insist Congress cease its obstructionism and do so itself. Thus, this lawsuit constitutes an "insurance policy" for the early termination of Jackson-Vanik restrictions on Russia at a time when rising political rhetoric in a political season (in both the U.S. and Russia) otherwise would make Jackson-Vanik graduation increasingly unlikely (as some still expect to happen with respect to Russia WTO accession). This is very important when the Republican candidates attack Obama on "reset" with Russia, especially if Mr. Putin is a candidate in 2012, which you can bet will be the excuse for a frenzy of russophobia here.
Also, once the legal significance of the suit is clear, the next time Mr. Obama tells Mr. Medvedev or Mr. Putin he wants to end J-V but can't get it through Congress, they can look him in the eye and say: "But Mr. President, under the law you don't need Congress. You can just do it yourself under your own legal authority." What does he say then?
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