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John Bolton and I have a piece in the LA Times arguing that the Obama administration cannot reach any meaningful deal at the Paris climate talks because he refuses to seek consent from the Senate or Congress. The more he promises — such as pollution caps or financial support for developing nations — the more he needs the cooperation of the legislature.
The Paris deal could not survive the Constitution’s treaty process because of the President’s poor relations with the Senate, especially on foreign policy and national security, nor could he win legislative changes by Congress, which is currently rejecting the latest ideas from the EPA on limiting greenhouse gases. Obama will probably have to rely on an executive agreement, the weakest and most tentative of our forms of international agreements because they are not even mentioned in the Constitution and depend on a President’s exercise of his sole constitutional powers. From our piece:
The Obama administration has made contradictory statements about whether a Paris agreement will be binding. Treaties are the most formal international pacts the U.S. makes. But last month, Secretary of State John F. Kerry said that any deal was “definitively not going to be a treaty.” State Department officials backtracked the next day: “The U.S. is pressing for an agreement that contains both legally binding and non-legally binding provisions.” In the summer, officials said they would negotiate a “politically binding deal.”
The Constitution is responsible for sowing some of this confusion in the Obama ranks. Article II states that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Administration officials surely realize that any climate-change treaty would be dead on arrival in the Senate, which recently rejected elements of a new Obama plan to cut power plant emissions.
Obama may try to thread the needle with an executive agreement, which does not involve Senate consent. The U.S. has made roughly 1,100 treaties in its history, but it has made about 18,500 executive agreements — 17,300 of them since 1939. While attractive to all presidents, executive agreements rest uneasily under the Constitution, which authorizes treaties only. Nevertheless, in U.S. vs. Belmont, the Supreme Court blessed President Franklin Roosevelt’s executive agreement to recognize the Soviet Union. “An international compact, as this was, is not always a treaty which requires the participation of the Senate,” wrote Justice George Sutherland, although he did not explain the difference.
Is Paris just another example of Obama’s executive unilateralism? It shows a desperate effort to reach our Constitution’s separation of powers, but will be ephemeral since the next President could easily terminate any sole executive agreement. Or does the constitutional form of the deal not even matter and there are other ways in which the Paris agreement will cause a permanent change in the direction of US policy?