M.I.A.: GOP Leaders and the Paris Agreement

The recently adopted Paris Agreement on climate change endangers the U.S. economy, our constitutional framework, and the future of conservative politics. So why aren't most Republican congressional leaders up in arms about it?

Beguiled by President Obama's rhetoric that the substantive aspects of the agreement are non-binding and unenforceable — and that, therefore, the agreement isn't a treaty — many conservatives dismiss the pact as a global feel-good exercise. Time for a wakeup call.

The only reason Obama claims the agreement is not a treaty is to convince people he can adopt it by his sole authority, with the stroke of a pen. Obama knows that if he were to follow Article II, Section 2 of the U.S. Constitution and submit the agreement for the Senate's review, it would be dead on arrival.

As I explained in a Competitive Enterprise Institute policy paper, the Paris Agreement is a treaty. That is the only reasonable conclusion based on past U.S. practice, the agreement's history, its potential costs and risks, and its "ambition" compared with predecessor climate treaties.

In fact, it is a non sequitur to claim that a non-binding agreement can't be a treaty. Our emission-reduction commitments under the United Nations Framework Convention on Climate Change are also non-binding, yet no one doubts that the UNFCCC is a treaty.

The administration also misleads when it draws a distinction between the agreement's procedural commitments (reporting, monitoring, and verification), which are binding, and its substantive commitments (emission-reduction and climate finance), which are not. The procedures require U.S. leaders to make increasingly aggressive substantive promises every five years. Nations honor their "non-binding" promises by turning them into binding domestic laws and regulations.

Some conservatives believe the agreement has been defanged because the Supreme Court has placed a stay on the EPA's Clean Power Plan — the largest single component of Obama's emission-reduction package. But no one can predict whether Justice Antonin Scalia's successor will be similarly tough on EPA overreach.

Also, some GOP leaders dismiss the agreement as a paper tiger because it imposes no penalties for non-compliance. But the Kyoto Protocol also had no effective sanctions, and conservatives recognized that Kyoto could seriously harm the U.S. economy. Obama's emission-reduction pledge under the Paris treaty is substantially more aggressive than America's emission-reduction target under Kyoto.

Besides, the chief determinant of climate policy is politics. Far from being toothless, the Paris Agreement is the framework for a multi-decade global pressure campaign directed chiefly against Republican leaders, red-state voters, and the fossil-fuel industry. It is designed to perform three main political functions:

1. Deter the next president, future Congresses, and even courts from overturning the EPA's Clean Power Plan and other climate regulations, including some not yet proposed, by rebranding those policies as "promises" America has made to the world.

2. Pressure future U.S. policymakers to make increasingly "ambitious" emission-reduction pledges (known as Nationally Determined Contributions) every five years starting in 2020, implement those pledges via ever-more stringent regulations, and pony up billions in "climate finance" — foreign aid to subsidize "green energy" ventures in developing countries.

3. Make U.S. energy and climate policy increasingly unaccountable to Congress and the American people, and increasingly beholden to foreign leaders, multilateral bureaucrats, international pressure groups, and their media allies.

The Paris treaty is central to Obama's agenda to transform America's politics and economy. The agreement would make de-carbonization the central organizing principle of federal and state energy policies. What is the point of electing red-state politicians if "We, the People" are only allowed to have blue-state policies?

To safeguard America's economic future and capacity for self-government, Republican leaders must expose Obama's climate diplomacy as an end-run around the Constitution's treaty-making process. They should do so before he signs the agreement on Earth Day, April 22, at U.N. headquarters in New York.

At a minimum, the Senate should hold hearings to challenge both Obama's "not a treaty" spin on the Paris Agreement and the administration's implicit theory that the president is sole arbiter of whether or not an international agreement is a treaty.

Treaty-making is a shared power, like placing justices on the Supreme Court. However, making treaties requires a greater degree of senatorial consent: "two thirds of Senators present" rather than simple majorities.

Sen. Mitch McConnell is correct when he says the Constitution does not obligate the Senate to vote on the president's judicial nominees. GOP leaders should now also emphasize what it does require: the submission of treaties to the Senate for its advice and consent.

Originally posted to Real Clear Policy