When Obama made the UN Paris climate agreement end run
Doing so would restore the Senate’s role in our treaty process, and also protect Americans’ economy and system of governance.
The U.S. Constitution vests both the president and the Senate with roles in making any treaty commitments. Under Article II, Section 2, it is clear that either a president or a Senate can declare an international agreement a treaty. Until the Obama administration, with its Iran deal and Paris climate pact, the two institutions always worked together to avoid conflict on such matters.
Not only did both initiatives warrant institutional conflict, when the Senate ducked on the former — pleading for a hybrid “agreement” on Iran to save face, (or so it thought) — it ensured the latter. An attentive Mr. Obama soon brazenly declared that Paris agreement a treaty was simply “not a treaty,” daring the Senate to challenge him.
Although a Freedom of Information Act lawsuit has revealed that an attorney for the Senate Foreign Relations Committee at the time of Mr. Obama’s Paris end-run decried this “disturbing contempt for the Senate’s constitutional rights and responsibilities,” the body did nothing.
Failure to act on Paris, now, guarantees we will see more such unilateral adventurism in a Biden-Harris administration on Iran and a host of other matters where Mr. Biden’s position lacks popular support.
Declaring Paris to be a treaty not only would pre-empt a President Biden from credibly “re-entering” Paris, as he vows to do on his first day in office. It also would smother in the crib the inevitable “Paris II,” with incoming “climate czar” John Kerry already loudly proclaiming, “Paris is not enough.”
It is incumbent upon Mr. Trump to declare Paris a treaty, transmit it to the Senate for its consideration, and shift the burden back to those who wish to claim Paris binds the U.S. somehow should Mr. Biden claim to “re-join” it.
Yes, this would be without precedent. The claim is not only a tautology — undoing anything unprecedented will be unprecedented — it also proves too much. Precedent and protocol were the first victims of a White House choosing this route.
Private litigants immediately invoked Mr. Obama’s Paris promise in court as reason to compel/uphold imposition of the “climate”/energy suppression agenda in federal policy. That case was dismissed by the 9th Circuit on other grounds.
It won’t be the last. In Europe litigants are invoking Paris, with some success, to block major infrastructure projects.
We know that progressive state attorneys general have malign intent; one of them, Massachusetts’ Maura Healey, promised Michael Bloomberg’s climate litigation group that any attorneys it provided her office would “be focused on ensuring that Massachusetts and neighboring states meet the long-term commitments set forth … in the Paris Agreement.”
Biden transition team member Joe Goffman of Harvard University stated on a recent Zoom call that the Biden administration will need to buy the U.S.’s way back in to Paris with a deeper five-year promise than Mr. Obama made, as the latter expires at the end of 2020. That requires massive EPA regulations, which a Biden administration almost certainly also will invoke Paris to justify.
Longtime United Nations climate official Yvo de Boer acknowledged, “[t]he only way that a 2015 agreement [Paris] can achieve a 2-degree goal is to shut down the whole global economy.” That is why the Obama White House hailed Paris as more significant than all climate agreements that came before it – “the most ambitious climate change agreement in history,” more so than the Kyoto and UNFCCC treaties. It also is the reason for the audacious end-run around the Senate: The United States lacks popular support for, and indeed would never approve such commitments.
Presidential transmittal of Paris declaring it to be a treaty will undermine any claim that Paris compels U.S. action or inaction. It creates a dispute that cannot be undone by another president. Only the Senate can finally resolve it, one way or the other. And as French diplomat Laurent Fabius put it, “Whether we like it or not, if it comes to the Congress, they will refuse.”
Any U.S. promises would be deemed “politically binding” at most, with no hope that adventurous courts or commissions of any gravity will issue the desired and otherwise certain rulings against U.S. economic development grounded in a supposed Paris commitment.
Mr. Obama’s Paris dare was an outrageous, brazen one that the Senate even more outrageously shied from confronting at the time. The sole cure is for Mr. Obama’s successor to restore our process, and the Senate’s role, and transmit Paris as a treaty requiring “advice and consent”.
Failing to do so, and allowing the Obama “climate coup” to stand, would enable future presidents to unilaterally adopt any treaties they and foreign elites want, simply by deeming them “not a treaty.” Such abandonment of our balance of powers in turn imperils American self-governance, and leaves U.S. energy and economic policies beholden to the demands of foreign leaders, U.N. bureaucrats and international pressure groups.
• Chris Horner is a lawyer in Washington, D.C., and member of the board of the public interest law firm Government Accountability & Oversight, P.C.