Without Congress, Obama’s Paris Climate Change Powers Limited



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?

Published in Environment, Law
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  1. Penfold Member

    To date, congress’s track record on refusing Obama’s extra-exectutive initiatives has not been very good.  I think he figures he can corner a Republican congress in a presidential election year into giving in to his will.  They will fear  alienating the electorate and pushing undecideds to Hillary.  This assumes undecideds are believers in climate change.  It’s enough to make you scream.

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  2. cdor Member

    Penfold:To date, congress’s track record on refusing Obama’s extra-exectutive initiatives has not been very good. I think he figures he can corner a Republican congress in a presidential election year into giving in to his will. They will fear alienating the electorate and pushing undecideds to Hillary. This assumes undecideds are believers in climate change. It’s enough to make you scream.

    So I wonder how many folks (the electorate) want to pay twice as much as they currently pay to heat their house in the winter? How about three times more to cool it in the summer? If the R’s can’t get those straight forward facts across to the public, we definitely have lost anything approaching an opposition party.

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  3. Chris Johnson Inactive
    Chris Johnson

    Does he need congressional approval to make anything binding?  Not that he seems concerned, either way.  However, he has many ways of circumventing congress, plus even has a way to bind future presidents, should he con congress into approving the TPP in its final form.  Environmentalists decry the supremacy of the TPP’s provisions over locally-enacted environmental protections, but that same section (Chapter 20) formalizes compliance with “…previous multilateral agreements that have been negotiated”.  Whatever mess of an agreement comes out of Paris could surely be called a previous multilateral agreement.  It seems to me this opens the door to force the US to comply with the Kyoto Protocol and just about anything else the environmentalists choose to insist upon.  Certainly the media and the academics are likely to support that interpretation.  Could a future US president simply opt out of the TPP after it was negotiated and congress approved with an up-or-down vote?  Professor?  Ambassador Bolton?

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  4. Tim H. Inactive
    Tim H.

    What can he actually do on his own authority?  The only thing that comes to my mind is EPA regulations.  When the Supreme Court allowed them (Required them?  I’ve forgotten.) to consider CO_2 as “pollution” under the Clean Air Act, it opened the door for this.

    If the President signs some executive agreement and tells the EPA to crack down on carbon dioxide, will the “public comment period” on the proposed regulations have any influence whatsoever?  He’ll say he is required to act by this agreement.  So the already-weak public influence on regulation will probably drop to zilch.

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  5. Brian Clendinen Member
    Brian Clendinen

    Why do we even need an agreement. On a per capita bases we are second or third in the world at reducing our carbon emissions. Any carbon emission agreement agreed to at the Pairs accord is not even worth the paper it is written on, it is merely political posturing. The politicians will do as the please regardless of what ever agreement they signed.

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  6. Larry3435 Member

    Binding?  What does that even mean?  Binding on whom?

    Certainly it won’t be “binding” on the other countries involved.  After the U.S. refused to enter the Kyoto protocols, all of the countries that signed Kyoto failed to cut carbon emissions, while the U.S. actually did cut carbon emissions.  There is no reason to think that any other countries will comply with anything that comes out of Paris, binding or not.

    The usual sanction for breaching a treaty with another country is losing the other country’s reciprocal cooperation in the treaty.  But when you know from the start that the other country has no intention at all of complying with the treaty, what are we even talking about?

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