Law & the Courts

Will Paris Revive the Constitution’s ‘America First’ Approach to Treaties?

(Photo: Lane Erickson/Dreamstime)
The climate agreement is a bad deal, but far more important, the Senate never approved it.

When did the definition of “leadership” in America become “the courage and foresight to ignore the United States Constitution”?

The fact that the sun rose again this morning was less predictable than the media-Democrat hysteria over President Trump’s entirely reasonable decision to pull the United States out of the Paris Convention on climate change. The decision was clearly right on the merits: The pact, which would do nothing meaningful to address global temperatures, is an exercise in progressive preening, touted by hypocrites who zip to and from climate confabs in their private jets — the kind of “Do as I say, not as I do” lovers of humanity (but loathers of people) who never take one plane when two are available.

To anyone but a zealot in the Church of Climate, it is obvious that carbon emissions are best reduced not by central planning but by a private sector free to innovate and respond to the market demand for environmentally responsible products and practices. That is how the United States leads, how it is already driving down emissions, and how it can promote the generation of wealth and know-how that — far better than dubious statistical models and rose-tinted crystal balls — would enable 22nd-century Americans to address their environmental challenges.

All that aside, however, President Trump’s decision should have been obvious and indisputable, not momentous. That it was not is a measure of detachment from our constitutional moorings.

The Paris Convention is a treaty. Under the Constitution, a treaty does not become law binding on the United States unless the president submits it to the Senate, obtains two-thirds approval there, and then ratifies the treaty. (Contrary to popular belief, the Senate does not ratify treaties; the president does the ratifying, but only if the Senate has consented.) That never happened to the climate agreement. It never had a chance of happening.

In this instance, as in others, President Obama conspired with his fellow transnational progressives to defeat the Constitution he had sworn to preserve, protect, and defend. He waited until late 2016, the eleventh hour of his presidency, to sign the agreement. As with the Iran deal, he had no intention of submitting it to the Senate, because there was no way it would be approved there. Because the pact would have punished American companies and workers, Obama knew that pushing Democratic senators into a vote, and boxing Hillary Clinton into a high-profile campaign debate, would have been a body blow to his party’s hopes of retaking the Senate and winning the White House.

The Left’s objective was to impose the Paris agreement without making Democratic office-seekers accountable for it. That is exactly what the Constitution is designed to prevent.

Here is the basic problem for transnational progressives: If the U.S. Constitution remains vital, their ultimate goal of global governance is unattainable.

Their premise is that the Westphalian model, a world ordered by nation-states pursuing their interests, is passé. History, they tell us, has refined us into a single world community, united by common values — eerily like sharia-supremacists’ claim that the ummah is a single world community of Muslims, united by Allah’s law.

By contrast, the Constitution is designed to enable the United States to secure its prosperity, interests, and security in a world where we hope for the best but prepare for the worst — hostile countries and other alien threats. The goal of the Constitution is to protect our nation against the globe’s many troublemakers, not to tame our nation in the name of global stability.

The perfect exemplar of the Constitution’s approach is the treaty clause (art. II, sec. 2, cl. 2). Its requirement of supermajority Senate consent is a presumption against international agreements.

The perfect exemplar of the Constitution’s approach is the treaty clause. Its requirement of supermajority Senate consent is a presumption against international agreements.

The approval hurdle is high because the Constitution makes a ratified treaty the supreme law of the land — essentially, the equivalent of a congressional statute. The idea, then, is that no international compact should be imposed on the American people unless an overwhelming majority of elected officials in the upper chamber are convinced — to the point of willingness to cast an accountable vote for the proposition — that the compact serves the national interests of the United States.

Not of the world. Not of the Earth. Not along the lines of harming ourselves in order to set an example for China and India that will purportedly be a boon to humanity and the planet. An international agreement must plainly benefit the American people. If it does not, the treaty clause’s operation will reject it.

Transnational progressives believe this is a bug. To the contrary, it is the feature.

Note that the Constitution does not merely presume against foreign entanglements. It consistently elevates the national interest over both foreign interests and global interests — if there be such a thing as the latter. (That a bien pensant transnational progressive tells himself the earth is a communal asset to be curated for the common good hardly means that’s how they see it in Beijing . . . or Moscow . . . or, for that matter, Appalachia.)

The president, for example, must be a “natural-born” citizen. As The Heritage Guide to the Constitution explains, this is because a “prime concern” of the Framers was that the government officer principally responsible for conducting foreign policy and commanding the armed forces have “undivided loyalty to the United States.” This qualification, like the Senate supermajority required for treaty approval, was meant to be a check on presidential subordination of the national interest to foreign concerns. The Constitution, moreover, does not stop with the president. The states, though sovereign, are expressly forbidden from entering into treaties; and unless Congress consents, they may not even enter lesser agreements with foreign powers. Again, the point is to assure the primacy of American national interest.

To coin a phrase, our fundamental law is “America first.” Thus, transnational progressives must scheme to circumvent it. Such stratagems include pretending that a treaty is not a treaty and, just as insidiously, pretending that a presidentially signed treaty is the functional equivalent of a presidentially ratified treaty.

The latter artifice, as I’ve previously outlined, relies on the Vienna Convention on the Law of Treaties. It claims to bind nations to treaties they have merely signed, or to which they’ve otherwise signaled assent. Even though such an international agreement has not been ratified under the nation’s laws, this treaty on treaties purports to oblige the nation “to refrain from acts which would defeat the object and purpose of the treaty.”

I say “claims” and “purports” advisedly. The United States has never ratified this convention, either. The treaty on treaties should thus be inconsequential — just as the Paris agreement should. But the State Department, the U.S. government’s transnational-progressive headquarters, claims America is nonetheless bound under the vaporous corpus of “customary international law.”

That’s a big part of the game, too. You are expected to accept that the Constitution may be amended — or is it evolved? — by international law. Of course, the United States Congress may not enact an unconstitutional statute, the president may not decree an unconstitutional order, and an American court may not issue an unconstitutional ruling. Yet somehow, when the largely anti-American “international community” makes a political decision and slaps the label “law” on it, voilà, the Constitution melts away.

Thus it was that President Obama signed the Paris Convention, and the international community declared that Americans were duly bound, notwithstanding that our law requires Senate consent. This is why President Trump needed not just to reject the climate agreement, but to take the affirmative step of withdrawing the United States from it.

What is outrageous, however, is the presumption under which the public debate has ensued. It has never entered the discussion that the Paris pact, which would profoundly damage our economy, has never even been submitted to the Senate, much less approved by the two-thirds supermajority that is supposed to protect us from bad deals. It was just a few days ago that the Fourth Circuit’s transnational progressive jurists told us that the majesty of the Constitution forbids the president from barring potentially threatening aliens from entering our country. How is it, then, that an explicit mandate in the actual Constitution — rather than the Constitution the judges make up as they go along — is nullified?

President Trump says he’s all about draining the swamp. Well, the swamp runneth over with signed but unratified treaties that the Left maintains impose stifling obligations and international pieties on Americans. We’ve never voted for them, and our elected representatives have never voted to approve them. Yet our own government, whose officers swear to defend the Constitution, tells us we are bound.

The president should formally withdraw the United States from every single one. It would be a bold empowerment of a self-determining republic, and it would not prevent any of these treaties from being adopted, as long as this was done in the manner dictated by the Constitution. You want America First? That would be America First. And unlike the congressional cat-herding that has thwarted the reforms of Obamacare, tax policy, and border enforcement, the president wouldn’t need 60 votes. As the Paris withdrawal reminds us, he just needs one.


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