by Chris Horner, E&E Legal Senior Legal Fellow
This week, reports suggest that President Obama will purport to join the other nations, from North Korea to Norway with others in between that have already ratified the Paris Climate Treaty — as required by their respective systems for treaty commitments — and claim to unilaterally “Accept” the treaty on behalf of the United States.
E&E Legal Senior Legal Fellow Chris Horner, who has written about this treaty process for well over a decade, suggests the following course for the Senate to respond to this usurpation:
On Friday April 22, Earth Day, the White House purported to commit the United States to the Paris Climate Agreement. The Obama administration claims the agreement, which it describes as “the most ambitious climate agreement in history,” is less of a treaty than its two apparently less ambitious predecessor agreements, which no one dared state were not treaties.
Other nations are less impressed, and have ratified the pact as a treaty, be they developed industrial Norway, Fiji led by a recent, former military junta leader, and even North Korea.
Congress has yet to challenge this claimed non-treaty status, or the administration’s contention that the executive branch can unilaterally determine whether an agreement is a treaty. Congress needs to challenge this power grab, and soon.
To date, whether an international agreement qualifies as a treaty has been determined not by executive fiat, but by the agreement’s substance, through an “advice and consent” process guided by the plain language of the Constitution. Article II, Section 2 vests the treaty-making power jointly in the two political branches of government. Nowhere does it suggest that one branch can waive the other’s role.
While some have floated the idea that the president could simply install a Supreme Court justice—also under a shared Art. II, Sec. 2 power, the appointments power—by claiming the Senate has waived its role of shared appointments power, even the administration’s political supporters have laughed off this suggestion.
That scenario is even more absurd concerning the Paris treaty. The Constitution requires a two-thirds Senate majority for committing to treaties. That is, treaties are even more serious, and the process more formidable by design, not less. The Constitution poses a far more formidable constitutional protection than the simple majority requirement for confirming presidential appointments.
Now the administration says it can waive the Senate’s role, because, according to the Secretary of State’s testimony, sharing the power just makes things too hard.
The Senate needs to confront President Obama’s hijacking of the shared treaty power. This involves recognizing that acknowledging the Paris Climate Agreement is a treaty does not strengthen the President’s signature, but rather freezes it in place, awaiting Senate approval.
Of course, Congress has several options for confronting the president, each with different virtues and demerits. The objective is to illustrate that the administration cannot reasonably claim the U.S. commitment to the Paris Climate Agreement represents an actual commitment without it gaining Senate approval.
Affirmatively rejecting the fiction that Paris is not a treaty also obviates any need for a withdrawal process. No one need withdraw from an agreement they never joined, and the U.S. cannot be deemed to have joined a signed but non-ratified treaty.
Bear in mind that this is a political question assigned jointly to both political branches of the federal government. One branch can claim the treaty making power as its exclusive province, and the other can just as well challenge that.
Crying out that, why, there is no precedent for blocking an unprecedented usurpation naturally proves too much. The absence of precedent arises precisely because we have never confronted our current situation: an executive daring the Senate to stop him from declaring null its shared role in the treaty process, because to admit an unpopular pact is a treaty would kill it.
The administration announced, in advance, that whatever was agreed to in Paris wouldn’t be called a treaty. This abandons two hundred years of shared assumptions and practice, reflecting an attitude towards the Senate of, “What are you going to do about it?”
There is nothing anyone can do to stop the president from purporting to commit to the Paris Climate Treaty. There are, however, some things Congress can do to neuter that move, with nothing anyone can do to stop it from similarly expressing its conclusion, that the Paris agreement is, in fact, a treaty. Confirming that Paris is a treaty does not strengthen the signature claiming to commit the U.S. to the agreement; it blocks it.
This is a version of a post that appeared on on April 21 at https://cei.org/blog/senate-must-confront-president-paris-climate-treaty.