What political costs would a Republican president incur should he attempt to “withdraw” the United States from the Paris Agreement? That is a question to which President Obama has given much thought and GOP leaders little.
Writing in yesterday’s Washington Post, environmental reporters Chris Mooney and Juliet Eilperin argue that President Obama’s “rapid move to join the Paris climate agreement could tie up the next president.” They reason as follows.
The Paris Agreement “enters into force” as soon as 55 countries representing 55% of the world’s greenhouse gas emissions join the agreement (Article 21). A party may not withdraw until three years after the agreement enters into force, and withdrawal does not “take effect” until “expiry of one year from the date of receipt by the Depositary of the notification of withdrawal” (Article 28). Thus if, as expected, the Obama administration signs the agreement on Earth Day (April 22) and deposits the U.S. article of acceptance or approval before Obama leaves office, America will be a party to the agreement for at least the next four years — “the length of a presidential term.”
Yet as Mooney and Eilperin acknowledge, the administration “has said that the Paris agreement is not, in its eyes, a formal, legally binding treaty, which means that it doesn’t have to be ratified by the Senate.” That raises an obvious question. If the agreement is not a formal treaty, if it’s not legally binding, how exactly does it “enter into force” with respect to the United States? How can it bind us to remain a party until 2020 even if the American people elect a president and Congress opposed to the agreement?
Mooney and Eilperin fail to flag the rhetorical sleight of hand by which Obama seeks to have his cake and eat it. Obama wants an agreement that, like a real climate treaty, controls domestic energy policy for decades to come, regardless of domestic politics and the policy preferences of future U.S. leaders. Yet he also wants an agreement that is somehow not a treaty, so he can adopt it unilaterally, with the stroke of a pen, without engaging the Senate, where the agreement would be dead on arrival.
This game plan should be too clever by half. I say “should be,” because most GOP leaders have not shown they have the wits and courage to unmask and defeat it.
The first step in foiling Obama’s end-run around the Constitution is simply to call the Paris Agreement by its proper name: a treaty.
As explained in these policy papers, the agreement is a treaty by virtue of its costs and risks, “ambition” compared to predecessor climate treaties, dependence on enactment of subsequent legislation by Congress, intent to affect state laws, degree of formality, past U.S. practice as to similar agreements, and general international practice as to similar agreements.
Because Paris is a treaty, the United States cannot “join” or become a party to it unless, pursuant to Article II, Section 2, “two thirds of Senators present” vote for its ratification. Republican leaders should broadcast that message loud and clear, especially this week and next, as some 130 heads of state prepare to sign the agreement at UN headquarters in New York on April 22.
The 160 or so developing country leaders who view the Paris Agreement as a mechanism for increasing foreign aid, under the rubric of “climate finance,” by hundreds of billions annually, will be outraged if a future president attempts to shrink their gravy train. But their anger will have some justification if Republican leaders don’t give them fair warning now that Obama is making promises he can’t keep, because he has not followed the constitutional process for making treaties.
Reuters reports that many developing countries are seeking “rapid ratification” of the Paris Agreement in hopes of bringing the agreement into force “before a change in the White House next year that might bring a weakening of Washington’s long-term commitment.” It would be interesting to find out how many of those nations that are not dictatorships don’t involve their legislatures in ratification. Probably very few. Fiji, the first nation to ratify, did so by an act of its parliament.
Mooney and Eilperin are correct that it will be harder to “withdraw” from the Paris Agreement than many GOP leaders seem to think. But that is a misstatement of their challenge. Republican boasting about “withdrawal” from Paris assumes that Obama can make America a party to it in the first place. Such talk buys into the falsehood that Paris is a “sole executive agreement” rather than a treaty. Worse, it leaves unchallenged the dangerous precedent Obama’s climate diplomacy would establish, namely, that the president is sole arbiter of which agreements are treaties and which are not.
As my colleague Chris Horner points out, treaty making is a shared power, like placing justices on the Supreme Court. Both shared powers are set forth in Article II, Section 2, but with this vital difference: treaty making requires a higher degree of senatorial consent. The president has the power to make “recess” appointments to the high court. He does not have the power to make “recess” treaties. More tellingly, treaty making requires the consent of “two thirds of senators present,” not a simple majority, as in the case of judicial appointments.
The intent of Article II, Section 2 is clearly negated if the Senate has no say in determining whether its advice and consent are required. If the president is sole judge of which agreements the Senate reviews, he can turn the Senate into a rubber stamp, submitting to it only non-controversial treaties nobody opposes. Obama, of course, pretends the Paris Agreement is not a treaty precisely because it is controversial.
What should a future Republican president do? Follow the Constitution. He should submit the Paris treaty to the Senate for its review. If fewer than two-thirds of Senators present vote in favor of ratification — a virtual certainty — then the agreement does not “enter into force” with respect to the United States. America does not become a party to it.
Political blowback from the global warming movement would be fierce, but no more so than if the president decides to “withdraw.” The constitutional option is superior to “withdrawal” in three respects.
1. The withdrawal option, as Mooney and Eilperin point out, locks America into the Paris Agreement for four years. In contrast, Senate rejection of the treaty via the Article II, Section 2 advice and consent process could be accomplished in the first hundred days of the next administration.
2. Exercising the constitutional option ensures that Obama’s attempt to exclude a controversial treaty from Senate review does not harden into a precedent.
3. The political risks are lower. Rejection of the Paris Agreement would not be the sole decision of the president or his administration. Rather, it would be the unequivocal policy of the United States, deliberated and concluded by the president and Senate together, standing on the moral high ground of constitutional principle.