The New York Times on Aug. 24, 2014, broke a major news story: “Obama pushing Climate Accord in Lieu of Treaty.” It’s a clumsy headline — no one dared claim the Kyoto Protocol was anything other than a treaty requiring Senate ratification, and even the Grey Lady calls it the “Kyoto Accord.” What the story revealed, however, was shocking news indeed, made more shocking by an email just revealed by the State Department in Freedom of Information Act litigation.
This email, obtained by the Energy and Environment Legal Institute, further calls into question the Senate’s failure to confront President Obama over his usurpation of the body’s constitutional treaty function through the Paris climate agreement.
It also stokes concerns whether the institution will reclaim its powers, as appears will be necessary in order to make good on President Trump’s announced plan to withdraw from Paris.
The Times story’s key passage:
“In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions. The Obama administration’s international climate strategy is likely to infuriate Republican lawmakers who already say the president is abusing his executive authority by pushing through major policies without congressional approval.”
Mr. Obama jammed those EPA rules through by executive fiat, after a Democrat-led Congress killed legislation to grant the authority he then claimed to already possess; the Supreme Court put the rules on ice upon challenge by a majority of states. The Paris climate agreement, however, unilaterally imposed on Mr. Obama’s way out the door, would be “a treaty that was going to last until the end of the century.”
That’s according to a senior Obama administration official.
Of course, under our Constitution’s Article II, Section 2, no president can commit the U.S. to treaties without Senate advice and consent.
On the morning the Times story broke outing Mr. Obama’s Paris end-run around our Constitution, State Department public affairs aide Alexandra Costello wrote to Andy Olson, a lawyer for the senior Republican on the Senate Foreign Relations Committee, Bob Corker, insisting the story contained “some inaccuracies/assumptions that we pushed back on” without success.
Mr. Olson wrote back, “I certainly hope it is inaccurate because some of the things alleged indicate a disturbing contempt for the Senate’s constitutional rights and responsibilities. We will need to be fully briefed when staff are back next week.” Strong stuff, and true.
These inaccuracies State then ironed out with the Senate are a mystery, given that the Times story accurately detailed what proved to be Mr. Obama’s plan. Yet the Senate rather shamefully made no move to arrest this “contemptuous” usurpation.
Paris is the successor to the Kyoto pact that died in the Senate. Such treaties are nonstarters under the United States’ democratic process; Paris even more so.
Kyoto committed to a five-year plan; the Paris treaty promises a new, tighter commitment every five years, forever. It is a treaty by its terms, custom and practice over two-plus centuries of shared assumptions.
Brazenly, Team Obama advanced a historic pretense of declaring what even they hailed as “the most ambitious climate change agreement in history” somehow “not a treaty,” betting the Senate would not speak up. They bet right.
Though Paris‘ reach into perpetuity was not known at the time this Times story broke, the seizure of power that it revealed made it big news, shocking Senate lawyers. The lack of Senate intervention to this day remains scandalous. As the disastrous Iran deal showed, the institution has so atrophied it can no longer muster the will to protect its constitutionally delegated prerogatives.
On June 1, President Trump announced he would withdraw the United States from the Paris treaty, but through a process requiring him to wait more than two more years to send written notice. This would take effect one year after that, by chance the day after the 2020 re-election. As a purely executive move, Mr. Trump’s successor can restore Mr. Obama’s treaty with a pen and a phone. Unless the Senate weighs in.
Over the week following the Times’ story, this same heavily redacted email thread shows State officials exchanging emails over having been caught so far in advance of their intended coup. They were rightly worried, yet in the end, the Senate did nothing.
These written discussions surely would inform the public — and the Senate — about the latter’s proper response going forward, possibly taking the illicit Paris climate pact up as the treaty it plainly is.
As Mr. Trump’s promise faces coming tests, we all deserve to see and consider Team Obama’s discussion about having been caught in their unconstitutional climate gambit.
Originally posted to The Washington Times.