The administration has described the agreement as “the most ambitious climate agreement in history.” However, they argue it is less of a treaty than its two apparently less ambitious predecessor agreements, which no one dared state were not treaties.
Whether an international agreement qualifies as a treaty has to date been determined not by executive fiat, but by the agreement’s substance, through receiving “advice and consent” from the Senate, as guided by Article II, Section 2 of the Constitution. This places treaty-making power jointly in the two political branches of government. So by unilaterally purporting to “accept” or “accede to” a treaty, President Obama has hijacked the shared treaty power.
What can the Senate do about this? CEI Senior Fellow Chris Horner, who has written about this treaty process for well over a decade, suggests the following course for the Senate to respond to this usurpation:
The Senate needs to confront President Obama’s hijacking of the shared treaty power. This involves overcoming the belief among some that Senate acknowledgement of the Paris Climate Agreement as a treaty would somehow strengthen the President’s signature, rather than freezing the pact, awaiting Senate approval.
Of course, Congress has several options for confronting the president, each with different virtues and demerits. The objective is to illustrate that the administration cannot reasonably claim the U.S. commitment to the Paris Climate Agreement represents an actual commitment without it gaining Senate approval.
Affirmatively rejecting the fiction that Paris is ‘not a treaty’ also obviates any need for a withdrawal process. No one need withdraw from an agreement they never joined, and the U.S. cannot be deemed to have joined a signed-but-not-ratified treaty.
Bear in mind that this is a political question assigned jointly to both political branches of the federal government. One branch can claim newfound wisdom that the treaty making power is really its exclusive province, and the other can just as well challenge that.
Claiming, as some have, that there is no precedent for the Senate blocking an unprecedented usurpation obviously proves too much. The absence of precedent for this move arises precisely because we have never confronted our current situation: an executive daring the Senate to stop him from declaring null its shared role in the treaty process because, were the president to admit the unpopular pact is a treaty, that would kill it.
The administration announced, in advance, that whatever was agreed to in Paris wouldn’t be called a treaty. This merely reminds us that our treaty process is a difficult one precisely to avoid unilateral imposition of unpopular foreign commitments.
There is nothing anyone can do now to stop the president from purporting to commit to the Paris Climate Treaty, even though his “What are you going to do about it?” approach abandons two hundred years of shared assumptions and practice. Similarly, there is nothing anyone can do to stop Congress from expressing its conclusion that the Paris agreement is, in fact, a treaty.
Confirming that Paris is a treaty does not strengthen the signature claiming to commit the U.S. to the agreement; it neuters it.
Congress has yet to challenge this claimed non-treaty status, or the administration’s contention that the executive branch can unilaterally determine whether an agreement is a treaty. Congress needs to challenge this power grab, and soon.