If you have ever wondered whether Democratic leaders understand the U.S. Constitution when they bash President Trump for allegedly violating it, or just use “unconstitutional” as a mantra for opposing policies (or 2016 election winners) they don’t like, ponder no further. H.R. 9, the “Climate Action Now Act,” exposes House leaders as faux guardians of America’s basic charter of government.
H.R. 9 would prohibit the executive branch from expending funds on “any action to advance the withdrawal of the United States from the Paris Agreement.” It would also require President Trump to submit a plan describing how he will implement President Obama’s pledge to reduce U.S. greenhouse gas emissions 26-28 percent below 2005 levels by 2025.
As of April 5th, H.R. 9 has 184 co-sponsors, all Democrats. Original co-sponsors include Speaker Nancy Pelosi (D-CA), Majority Leader Steny Hoyer (D-MD), Majority Whip James Clyburn (D-SC), and the chairmen of the House Energy and Commerce and Natural Resources Committees.
H.R. 9’s single digit identifier reflects the high priority House leaders are giving it. Indeed, leadership is so hot to move the bill that on April 4th, the Energy and Commerce Committee, by a party line vote, approved the bill without benefit of a hearing. As my colleague Ben Lieberman observes, House leadership’s rush to vote on H.R.9 makes an even bigger mockery of Democrats’ claims that the Senate vote on the Green New Deal was a “sham” because there was no prior hearing. But I digress.
The key point for present purposes is that the Paris Agreement is either a treaty, in which case President Obama unlawfully ratified it, because he refused to send the pact to the Senate for its advice and consent; or, as the Obama administration argued, Paris is an “executive agreement”—a pact the president may conclude on his sole authority as commander-in-chief or chief executive.
In either case, whether the Paris Agreement is a treaty or a sole executive agreement, the Constitution gives the House no power to authorize it, none to compel the president’s implementation of it, and none to overrule his decision to withdraw from it.
Under Article II, Section 2, Clause 2 of the Constitution, “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” As that provision makes clear, the President does not need the House’s consent to ratify (“make”) a treaty.
You might suppose that because the president needs the Senate’s consent to make a treaty, he similarly need its consent to unmake (withdraw from) a treaty. Not so.
It is the president’s prerogative to ratify a treaty, not the Senate’s, although he needs the Senate’s consent to do it. Even after obtaining the Senate’s consent, the president may decide a treaty does not serve the national interest and decline to ratify it. By the same token, he may withdraw from an existing treaty without obtaining the Senate’s consent. From which it follows that the House, which does not participate in making treaties, has no power to limit the president’s authority to withdraw from treaties.
Finally, if, as the Obama administration claimed, the Paris Agreement is a sole executive agreement, such as the U.S. bilateral pact with Sweden to develop pollution control methods for military installations, then, by definition, the president need not obtain either chamber’s consent to enter into or withdraw from it.