These painted-over documents respond to a Competitive Enterprise Institute FOIA lawsuit that follows up on previously obtained documents in which members of the Obama administration schemed to cut the Senate out of its constitutional role regarding the Paris “commitment.” This document production theoretically addressed the Obama administration’s deliberations, as it was being negotiated, on whether to properly treat the Paris agreement as a treaty given, among other considerations, the seriousness and extent of the U.S. promises.
If so treated, the administration would need Senate ratification as expressly laid out in the Constitution. There, its chances for approval by the required two-thirds majority were slim to none. The unprecedented gambit was for the State Department’s lawyers to declare something that was by its terms, custom and practice, and even its own lineage and Senate history a treaty to simply be not a treaty—merely an “executive agreement.” The administration then proceeded to claim that the president’s signature alone was enough to bring it into force, “ratifying” the agreement by its famous pen-and-a-phone approach.
Because of this dynamic, pulling off the claim that Paris was “not a treaty” was almost as important to Team Obama as the substance of the agreement itself. The problem was that the State Department’s traditional criteria for determining what qualifies as a treaty, laid out in a department document known as “Circular 175,” makes inescapable that the Paris agreement is of course a treaty. The disingenuous, behind-the-scenes scramble to claim a legal conclusion to the contrary—which itself remains unpublished—is what CEI seeks to shed light on. The Obama team’s revolutionary position, never stated for the sheer outrageousness on its face, was that a pact simply isn't a treaty if a president says it isn’t—more precisely, that the Senate’s express role in the process only exists at the executive's pleasure—say, when he can rely on the institution agreeing with his agenda.
If allowed to stand, this would establish a precedent for all future agreements: it would effectively end the Senate’s constitutional role in approving treaties. “Agree with me, or your function doesn’t exist.”
We see the obvious truth of Paris’ treaty status in the fact that our supposed models on the matter, principally Western Europe, ratified it according to their respective political processes for adopting treaties. Meaning, it was sent it to the peoples’ elected representatives as their own systems (and ours) require. Of course, their judiciaries are less likely (though not entirely unlikely) to hold them to their promises; still, it is fair to say that Paris represents the entire world agreeing that the U.S. should do to itself something they don't agree to do to themselves.
It was only the United States, whose Senate would never grant a two-thirds supermajority to such economic shackles, that played make-believe. President Trump’s response, approximately one year ago, was to state his intention to withdraw from Paris (eventually) via the same unilateral pen-and-a-phone approach by which we joined. He still could—and should—adopt the more durable policy of acknowledging its treaty status, and submit it to the Senate for a vote, where it will certainly be defeated.
While he’s at it, President Trump should also direct the secretive State Department, which was in on the Obama administration's scheme for its own self-interested reasons from the start, to stop withholding the evidence of these unconstitutional shenanigans. This blacked-out document production shows that career employees sympathetic to the Obama administration’s climate policy and strategy are continuing to shield the previous administration’s end-run from scrutiny. The glaring question is, when will Trump appointees at the State Department recognize their obligation under the Freedom of Information Act and release the uncensored version of these documents? Why make nonprofits sue, for years, to see the facts? Who are they protecting?
>> Read the State Department documents here.