The Paris Agreement and the Imperial Presidency: My Response to David Bookbinder

The following is a reponse to Is the Paris Climate Agreement a Treaty?” by David Bookbinder of the Niskanen Center, in which Mr. Bookbinder addresses arguments made in the recent CEI study The Legal and Economic Case Against the Paris Treaty.

Thank you, David, for (unwittingly) making our case. You conclude that “we are left with the rather tautological situation that a ‘treaty’ is simply any agreement that the President submits to the Senate under the Treaty Clause.” That was the Obama administration’s power-grabbing theory, albeit implied rather than stated.

Here are its imperial implications. The Senate’s shared power in treaty-making exists at the pleasure of the executive. The president can enroll the United States into any pact he likes, without any input from the Senate, just by deeming it “not a treaty.” In other words, the Senate has no power to review international agreements until the president deigns to use the Senate as a rubber stamp.

You scold us for not citing cases, instead of sticking to the common sense of the matter as articulated in the State Department’s eight well-established criteria (see below). Any theory purporting to reduce the Treaty Clause to a nullity cannot be correct. The framers clearly intended the Treaty Clause to provide a check on executive discretion (Federalist 75). Besides, if everything and/or nothing is a treaty, depending on the whim of the president, why have advice and consent at all?​

You sneer that Chris and I “fail to provide the actual text of the Treaty Clause,” yet neglect to mention that we quote from the Treaty Clause (p. 2) and also link to it (footnote 3). But it’s clear now we should have provided the full text, since then you could more easily see the error of your ways. Article II, Section 2, Clause 2 states:

He [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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The phrase “advice and consent” occurs twice, but with this significant difference—making treaties requires a substantially greater degree of consent than appointing justices to the Supreme Court. To ratify a treaty, the president needs the concurrence of two thirds of the Senators present. To fill a vacancy on the Court, he only needs the concurrence of a simple majority. The Constitution, by design, requires a broader base of political support to make treaties than to make appointments to the Supreme Court.

Your theory turns the clear intent of the Treaty Clause upside down. Like Obama, you imagine the President can join any treaty he wants, no matter how lacking in political support, just be deeming it “not a treaty.” Your critique of our paper is long on citations to inapposite court cases and short on basic reflection on constitutional structure. Wittingly or otherwise, yours is an apologia for the Imperial Presidency—strange behavior for a self-described libertarian think tank.

You chide us for not citing cases that upheld the legality of executive agreements. But we never suggested that executive agreements are illegitimate. Our objection is to the pretense that the Paris Agreement does not affect interests “momentous” enough (Federalist 75) to warrant Senate review.

Far from objecting to executive agreements per se, our paper affirms the propriety of 15 environmental executive agreements negotiated by President George W. Bush. Those agreements were plainly authorized either by congressional statute, previously ratified treaties, or the president’s inherent powers as chief executive or commander-in-chief. Moreover, none of the Bush-era environmental executive agreements was controversial, none was a potential source of substantial cost or risk to the nation as a whole, and none was a stratagem to evade the deliberative processes of democracy.

You dismiss our list of criteria for distinguishing treaties from non-treaties as “CEI’s grab bag.” In fact, as our paper plainly states, those are State Department criteria, contained in a guidance document known as Circular 175. Although not statutory factors for deciding court cases, the 175 factors are reasonable criteria derived by experts from long experience. It is difficult to imagine better criteria for making sense of the Treaty Clause. In contrast, your tautology theory renders the Treaty Clause incomprehensible by making the distinction between treaty and non-treaty relative to the political convenience of executives who want to rule unchecked.

Rest assured, David, we put not our faith in judges. Rather, we appeal to all in the Trump administration and outside it who already understand that constitutions are instruments for promoting reasoned deliberation and political accountability, who know that our Constitution is under siege, and who have no trouble grasping the disproportion and impropriety of adopting “the most ambitious climate change agreement in history”—which really means most ambitious environmental treaty period—as if it were a mere bilateral agreement to promote environmental education in primary and secondary schools.

You write that “If anything was ever a ‘treaty,’ it would be NAFTA,” a trade deal adopted as an executive-legislative agreement. You suggest that we must declare NAFTA to be illegitimate on pain of contradicting ourselves. Not so.

Of the eight Circular 175 treaty factors, one is “Past U.S. practice regarding similar agreements,” another is “The preference of Congress as to a particular type of agreement.” The United States has repeatedly enacted legislation giving the President fast-track authority to negotiate trade agreements that Congress can approve by simple majorities but cannot amend. NAFTA is consistent with both past U.S. practice and Congress’s preference. In contrast, the Paris Agreement flouts past U.S. practice and Congress’s preference, as, to our knowledge, the United States joined all pre-Paris U.N.-sponsored multilateral environmental agreements as treaties subject to the Senate’s advice and consent.

You seem to mistake what our paper purports to be. It is not and does not aspire to be a legal brief for anti-Paris litigation. Rather, our purpose is to spotlight the Agreement’s constitutional, legal, and economic risks for the United States if President Trump choses to remain within it. Foremost among such risks are a further enfeeblement of the Senate as a check on executive overreach, continual pressure to honor international “commitments” incompatible with the pro-growth energy agenda and manufacturing renaissance on which Trump campaigned, and loss of political independence as U.S. energy policy becomes increasingly unaccountable to voters and increasingly beholden to foreign leaders, multilateral bureaucrats, activist judges, and eco-litigation groups. 

President Obama kept mum about climate change during the 2012 election cycle, never once letting on that if re-elected he would direct the EPA to take control of the U.S. electric power sector, bypass the Senate, and unilaterally join a climate pact more “ambitious” than the Kyoto Protocol. It is precisely because the Paris Agreement has no democratic legitimacy that Obama negotiated and adopted it without the Senate’s advice and consent.

Worse, if one believes affordable energy is a blessing and that elections should determine policy, the Paris Agreement is a strategy to progressively narrow U.S. energy options and political choices for decades to come, regardless of the preferences of future administrations, Congresses, and voters.

Through an endless, legally binding “procedural” churn of meetings and reports focused on emission reduction commitments and climate finance pledges, the Agreement will provide fodder for incessant campaigns—political, diplomatic, and legal—against U.S. leaders and firms who do not toe the party line. The Paris Agreement thus casts a long dark shadow not only on U.S. energy producers but our future as a self-governing polity.

Should any executive acting unilaterally have the power to lock us into such an arrangement with the stroke of a pen? We think the framers would say no and hope President Trump will too.