By withdrawing from the agreement, Trump could restore the Senate’s constitutional power to advise on and consent to international treaties.
In his first campaign speech on energy policy last May, then-presidential candidate Donald Trump promised North Dakotans that, if elected, he would “cancel the Paris Climate Agreement and stop all payments of U.S. tax dollars to U.N. global-warming programs.” Soon thereafter, he pointed out that President Obama had signed onto the Paris Agreement “unilaterally, and without the permission of Congress,” in violation of the Constitution.
As a matter of good public policy, Trump ought to fulfill his campaign promise. More important, he ought to use the opportunity to restore a constitutional norm. Under President Obama, the executive branch claimed the unilateral power to negotiate and sign agreements resembling treaties. By the terms of Article II of the U.S. Constitution, two-thirds of the Senate must approve of a treaty for it to be ratified. By the Obama administration’s logic, this requirement is negated if the president declines to say the word “treaty.”
Chris Horner, a senior fellow at the Competitive Enterprise Institute, tells National Review that “asking the Senate to weigh in would be restoring the treaty power.” Such a move by the Trump administration “hardly imposes new limits on the executive,” he says. Rather, it “helps a feckless Senate reclaim its own role.”
The Paris Agreement, which commenced on November 4, 2016, was signed by the U.S. and nearly 200 other nations. Building on the United Nations Framework Convention on Climate Change (UNFCCC), an international environmental treaty conceived in 1992, it seeks to reduce carbon emissions worldwide. Its signatories have agreed to limit “a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.” The U.S., for example, has committed to reducing its emissions to over 25 percent below its 2005 levels by 2025 — and to meet ever-lower emissions targets at five-year intervals after that.
In a report published last week, Horner and his colleague Marlo Lewis Jr. examined the flawed reasoning behind the Obama administration’s assertion that the Paris Agreement was not a treaty. Certainly, the agreement’s signatories understood the need to circumvent the U.S. Senate. Speaking to African delegates at a climate-change conference last June, for example, French foreign minister Laurent Fabius explained that “we must find a formula which is valuable for everybody and valuable for the U.S. without going to Congress. . . . We know the politics in the U.S. Whether we like it or not, if it comes to the Congress, they will refuse.”
And although Fabius made it clear to the over 25,000 delegates that everyone must refrain from calling the agreement a treaty, just two months later the United Nations Climate Change Secretariat wrote a legal memorandum discussing the execution of the “treaty action.”
“Given its prescriptiveness, ambition, costs, risks, dependence on subsequent legislation by Congress, and intent to affect state laws,” Horner and Lewis explained, “the Paris Agreement . . . is a whole new treaty.” It seems that the signatories understood this, but were intent on bypassing the Republican-controlled U.S. Senate. The plan worked due to an array of dubious assertions made by advocates of the agreement.
One oft-heard argument, for example, is that the Paris Agreement can’t be a treaty because it is non-binding. But, according to Horner and Lewis, the Paris Agreement has procedural requirements that are, in fact, binding.
Trump ought to restore the Senate’s constitutional powers to avoid setting a dangerous precedent for his presidential successors.
“Just because a climate agreement lacks binding targets does not make it a non-treaty exempt from Senate review,” they explained. “The Paris Agreement imposes many new binding commitments on the United States with significant implications for the U.S. economy and domestic policy.”
Another assertion made by advocates of the agreement is that because it doesn’t have an enforcement mechanism, it can’t be classified as a treaty. This is a red herring, Horner and Lewis argued in their report, because “the presence or absence of such a mechanism does not determine a pact’s status with respect to a constitutional treaty process.” The UNFCCC — the treaty that the Paris Agreement was built upon — did not have an enforcement mechanism, but the Senate advised and consented to it.
Which brings us to the final claim put forth by advocates of the agreement: that because it is an update to the UNFCCC, which the Senate already ratified, President Obama wasn’t required to seek Senate approval before entering into it on the nation’s behalf. Lewis and Horner pointed out that such an update made by a treaty’s signatories does not give the president the unilateral authority to accept new provisions. “If the UNFCCC authorizes the executive to make increasingly ambitious emission reduction promises without obtaining the Senate’s advice and consent,” they said, “then the treaty is effectively an economic suicide pact.”
The Trump administration cannot just keep the U.S. in the agreement while ignoring its terms, because there will be diplomatic, political, and legal repercussions every five years as the U.S. fails to meet its ever-steeper emissions-reduction targets. Which is why Horner and Lewis believe that the best option is to withdraw from the agreement as quickly as possible, either by seeking belated advice and consent from Congress, withdrawing from the agreement entirely (a four-year process), or withdrawing from both the agreement and the 1992 UNFCCC (a two-year process).
In any case, Trump ought to restore the Senate’s constitutional powers to avoid setting a dangerous precedent for his presidential successors. Failing to do so, Horner and Lewis argued, “would commit the Trump administration to conflicting policy directions, hobble his deregulatory and energy agendas, and put America in a political straitjacket hostile to the administration’s policies.” “Trump can either keep his promise to the people who elected him or keep the promises Obama made to the United Nations in an attempt to circumvent American constitutional constraints,” the report explained. “He cannot do both.”
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