Just this morning, CNN reported that President Trump plans to pull out of the Paris Climate Change Agreement, in defiance of immense pressure from the left not to. There is similar pressure on Trump in regards to the 2015 nuclear deal with Iran. Supposedly, America is legally and morally bound to remain part of these pacts.
Conservative critiques of these deals have typically focused on the agreements’ contents and effectiveness. The nuclear deal allows Iran to continue to pursue nuclear-weapons-related technologies while it is in effect — and despite a recent State Department certification that Iran has complied with this agreement, the truth is Tehran has failed to fully meet the requirements of this deal and has cheated on it. Meanwhile, the Paris Agreement has come under strong criticism as a costly, ineffective, and economically harmful approach to addressing alleged global warming.
But there’s something else these agreements have in common: Both are treaties, but were deliberately negotiated by the Obama administration in a way that enabled it to evade the U.S. Constitution’s requirement that treaties be ratified by the Senate.
America’s Founding Fathers placed a high threshold to ratify treaties: two-thirds of the Senate must vote in favor. The reason is that treaties are major international agreements that legally bind our nation and its presidents long into the future. No president should have the power to make such commitments with just the stroke of his pen.
National Review’s Andrew McCarthy explained this in an April 2015 NRO article, writing that the Constitution “does not empower the president to make binding agreements with foreign countries all on his own — on the theory that the American people should not take on enforceable international obligations or see their sovereignty compromised absent approval by the elected representatives most directly accountable to them.”
Supporters of the JCPOA and the Paris Agreement argue that there is no clear definition of what constitutes a treaty. They also note that presidents frequently enter into major international agreements without submitting them for ratification by the Senate.
While these arguments have merit, they do not apply to the JCPOA and the Paris Agreement, because these are important pacts that have been treated like treaties by most other states. The Iranian Parliament ratified the JCPOA. The legislatures of over 128 Paris Agreement signatories have ratified that agreement, including those of Canada, France, Germany, Italy, Mexico, and the U.K.
Both houses of Congress were permitted to vote on a resolution of disapproval of the JCPOA (the Corker-Cardin bill) in September 2015. But this process did not follow the Constitution’s rules for treaties. Instead of requiring supporters to win two-thirds of the Senate to ratify the agreement, it required opponents of the JCPOA to get veto-proof and filibuster-proof majorities to kill it. Although a majority of Congress voted against the JCPOA, including Senator Chuck Schumer and the top Democrats on the Senate Foreign Relations Committee and the House Foreign Affairs Committee, it was not disapproved because of a filibuster by Senate Democrats.
So why were the legislatures of so many other countries permitted to ratify these agreements but the U.S. Senate was not?
The reason is that Obama officials knew that neither agreement could be ratified by the U.S. Senate. Secretary of State John Kerry openly admitted to this when he said during a July 28, 2015, House hearing that the JCPOA was not submitted for Senate ratification as a treaty because “it has become physically impossible. . . . Because you can’t pass a treaty anymore.”
Making this worse, Obama officials structured both agreements to make it difficult for future presidents to withdraw from them.
Why were the legislatures of so many other countries permitted to ratify these agreements but the U.S. Senate was not?
Concerning the Iran nuclear deal, National Security Deputy Adviser Ben Rhodes said during a June 16, 2016, speech to the Atlantic Council that the JCPOA was front-loaded with incentives to Iran to make it difficult for a future president to tear up. Rhodes explained that “should a future president tear up the agreement, Iran would restart its nuclear-weapons program, meaning future leaders are chained to the agreement, whether the American public likes it or not.”
Regarding the Paris Agreement, Obama officials tried to tie the hands of future presidents by specifying a four-year process to withdraw, although there is a more drastic one-year route if the U.S. submits written notice to the U.N. Secretary General of its intention to withdraw.
Mr. Trump should not be fooled by these Obama-administration gimmicks to bypass the U.S. Constitution and his authority as president to reject non-binding executive agreements by his predecessor.
The United States could immediately leave the JCPOA and impose new sanctions on any company or state that sells nuclear or missile technology to Iran or does business with Iranian-government organizations or officials involved with Iran’s sponsorship of terrorism. The argument that America’s withdrawal from the nuclear deal would worsen the situation with Iran is misleading, since Tehran is already cheating on this deal, and its destabilizing behavior in the Middle East significantly increased after the pact was announced in July 2015.
The restrictions on the United States withdrawing from the Paris Agreement are not binding on President Trump because they are treaty-like commitments that required ratification by the Senate. Mr. Trump is not bound to abide by fraudulent withdrawal provisions in a fraudulent agreement. He can ignore the Paris Agreement’s one- to four-year waiting period and withdraw immediately.
My best recommendation is that President Trump withdraw from the JCPOA and the Paris Agreement not just because they are weak pacts that endanger U.S. security and its economy but because they represent unconstitutional abuses of presidential power by President Obama. Congressional Democrats and the mainstream media would never allow a Republican president to get away with similar abuses.
But there’s another way to solve the problem posed by deals like these: submit them for ratification by the U.S. Senate as treaties. This is an imperfect solution, because it could be interpreted as the president endorsing these flawed agreements. However, this course of action would have the virtue of letting the Senate perform its constitutional duty by considering these pacts for ratification like the legislatures of other states.
It appears Trump is taking my preferred route on the Paris Agreement. A decision on whether the U.S. will remain in the Iran nuclear deal is expected after a 90-day review is completed in July. It is my sincere hope that the president’s decisions will fully reflect the danger to our security and our system of government that these fraudulent agreements represent.
— Fred Fleitz served in national-security positions for 25 years with the CIA, the DIA, the State Department, and the House Intelligence Committee staff. He is now senior vice president with the Center for Security Policy, a national-security think tank.