While everyone is focused on Neil Gorsuch, the Trump Administration may be about to deliver the coup de grace to the executive branch’s slow evisceration of the Senate’s constitutional competence over America’s international treaties.
On 4 November 2016, the Paris Climate Agreement entered into force. Four days later, Donald Trump was elected President of the United States. If President Trump follows through on his campaign promise to “cancel” U.S. participation in the Paris Agreement, such action threatens to permanently and decisively shift the balance of power between America’s legislative and executive branches, in favor of the latter.
To understand why this is so, we need to begin in 1978, when the U.S. Congress first passed legislation declaring climate change to be a matter of national security, and establishing a “national climate program that will assist the Nation and the world to understand and respond to natural and man-induced climate processes and their implications.”
In 1987, in the Foreign Relations Authorization Act, Congress elaborated on this commitment, stating that “the global nature of this problem will require vigorous efforts to achieve international cooperation aimed at minimizing and responding to adverse climate change;” that United States policy should “work towards multilateral agreements” to address the issue; and that “The Secretary of State shall be responsible to coordinate those aspects of United States policy requiring action through the channels of multilateral diplomacy, including the United Nations Environment Program and other international organizations.”
Such “multilateral diplomacy” began formally in 1990, and delivered its first results in 1992, with the agreement of the United Nations Framework Convention on Climate Change (UNFCCC), signed for the U.S. by President George H.W. Bush (who said at the time the U.S. “fully intends to be the world’s preeminent leader in protecting the global environment.”) In October that year, by the constitutionally required super-majority of two-thirds of Senators present and voting, the Senate provided its advice and consent to the ratification of the UNFCCC, a treaty which remains the “supreme law of the land” under Article VI of the Constitution, to this day.
Skip ahead to 2015, and multilateral climate diplomacy delivered another major feat of international cooperation with the adoption of the Paris Agreement under the authority of the UNFCCC. The U.S. joined the Paris Agreement in 2016 without explicit ratification in the Senate, but with the implicit consent of the Congress, demonstrated through its prior legislative acts and the Senate’s ratification of the underlying UNFCCC.
The Paris Agreement provides that any country may withdraw from it, but stipulates that an instrument of withdrawal cannot be delivered until three years after the treaty takes effect, and will not take effect until one year after that. Even if Trump has unilateral constitutional authority to withdraw from the Paris Agreement, therefore, the earliest he could do so would be 4 November 2020.
Evidently not satisfied with such a delay, a legal advisor to the Trump Administration during the transition raised the possibility of the far more radical step of withdrawing from UNFCCC itself, which can be effected in one year; the editorial board of the Wall Street Journal has explicitly called for such a step. The Paris Agreement does state that withdrawing from the UNFCCC will “be considered” as effecting withdrawal from the Paris Agreement also; while it does not explicitly address what would happen where this provision created a conflict with the time limit provision, it is at least plausible that the former would trump the latter.
The crucial point in the American context, however, is this: while the U.S. Constitution requires a two-thirds vote of the Senate to provide its advice and consent before a treaty becomes the law of the land, it is silent as to the procedure that the U.S. should follow to withdraw from treaties so enshrined. Logical inference would suggest that the purpose behind requiring a super-majority of Senatorial approval – that it generates a stable and secure commitment to the international bargain, shared between the legislative and executive branches – is rendered nugatory without a corresponding ability for the Senate to prevent the executive from unilaterally abandoning a treaty. In other words, Congressional approval, most obviously through a two-thirds vote in the Senate, should also be required for the U.S. to withdraw from treaties. Other commentators contend, however, that the power to cancel America’s treaties resides with the President alone. Somewhat incredibly, the U.S. Supreme Court has never resolved the issue.
(The Constitution does not contemplate or address political parties, but their subsequent emergence means that the super-majority effectively requires bipartisan support in the Senate before treaties are ratified. This intra-Congressional political point is much less significant, however, than that of the constitutional division of power over foreign affairs between the legislative and executive branches.) (Which is why this is a much bigger deal than McConnell nuking the filibuster.)
The last time the Supreme Court came close to resolving the issue was in 1979, after President Jimmy Carter announced his intention to terminate a 1955 treaty of mutual defense between the U.S. and the Republic of China (commonly known as Taiwan) in order to formally recognize the government of the People’s Republic of China. The day of President Carter’s announcement, Republican Senator Barry Goldwater led a group of members of Congress (that would subsequently expand to include then-Representatives Dan Quayle and Newt Gingrich) in filing suit in the D.C. District Court, seeking a declaration that the President’s actions were unconstitutional, and an injunction to prevent them from proceeding.
The Supreme Court ultimately dismissed the case without deciding the issue, but for different and conflicting reasons: a minority of Justices argued the issue was purely political and should be left to the legislative and executive to resolve between themselves; Justice Powell disagreed, dismissing the case because he considered that the process of political resolution had not yet reached an impasse (the Senate had considered, but not voted on, a resolution specifically addressing the termination of the Taiwan treaty), but holding that the Court would need to resolve the issue, if and when the legislative and executive “reached irreconcilable positions”. A different minority of Justices were willing to decide the case as it stood, but were overruled. In the end, therefore, President Carter succeeded on the issue of the day, but without any definitive resolution of the constitutional question. As this 2017 report from the Congressional Research Service notes, therefore, “Because the UNFCCC received the Senate’s advice and consent in 1992, an effort by the Executive to terminate that treaty unilaterally could invoke the historical and largely unresolved debate over the role of Congress in treaty termination.”
The CRS report does not reach a concluded view on the question, but the legislative history of America’s international climate change obligations makes it abundantly clear that responsibility for those international obligations lies originally and primarily with the legislative branch, and only secondarily with the executive. This means it would be plainly unconstitutional for President Trump to withdraw from the UNFCCC without obtaining the authorization of the Senate, if not both Houses of Congress, to do so.
It was Congress, after all, in 1987, that originally directed the executive to pursue a multilateral treaty on climate change. That direction built upon its 1978 determination to “assist the Nation and the world to understand and respond to natural and man-induced climate processes”, a statement that clearly and correctly saw no distinction between addressing climate change at home and abroad, and that accepted legislative responsibility for both. Congress in 1987 even went so far as to direct the executive as to where it should focus its negotiating efforts, in one what is one of the more striking paragraphs of the U.S. Code:
In recognition of the respective leadership roles of the United States and the Soviet Union in the international arena, and of their joint role as the world’s two major producers of atmospheric pollutants, the Congress urges that the President accord the problem of climate protection a high priority on the agenda of United States-Soviet relations.
Although that particular provision has now been repealed, the Congress generally and Senate specifically have remained heavily involved in international climate negotiations, most importantly through the 1997 Byrd-Hagel resolution.
In 1997, in testimony in front of the Senate Foreign Relations Committee, Secretary of State Warren Christopher endorsed the position that a subset of developed country parties to the UNFCCC, including the U.S., should pursue “legally binding emission limitation targets and timetables”. In response, by a vote of 95-0, the Senate passed the Byrd-Hagel resolution, stating that the U.S. should not be a signatory to any protocol or other agreement regarding the UNFCCC, that would mandate new commitments to limit or reduce greenhouse gas emissions by developed countries, that did not also mandate new commitments from developing countries.
The Byrd-Hagel resolution prevented the U.S. from joining the 1997 Kyoto Protocol, which imposed binding targets only on developed countries. (Thereby making the Protocol’s entry into force dependent upon Russian ratification, finally secured in 2004 in exchange for the European Union withdrawing its objection to Russia joining the World Trade Organization). Byrd-Hagel’s negotiation parameters were followed scrupulously by the President and State Department in the negotiation of the 2015 Paris Agreement, however, indelibly shaping that agreement’s final form.
(A similar resolution, that would have expressly required the Paris Agreement to be submitted to the Senate for its advice and consent as a treaty, was introduced by Senator Rand Paul in October 2015 but died in committee. Contrary to what many Republican commentators have claimed, therefore, the Senate did have an opportunity to vote on the Paris Agreement – it declined to take it up.)
Moreover, it is important to recognize that the Goldwater v Carter case not only failed to resolve the constitutional question of treaty withdrawal, but that even if it had, it would almost certainly have done so only in relation to treaties dealing with the recognition of foreign governments by the U.S., a power that lies exclusively and conclusively with the executive branch. (Professor Laurence H. Tribe made exactly this point in The New Republic in 1979). President Carter’s de facto success with respect to a treaty of mutual defense, therefore, tells us very little about the constitutional question in the context of a treaty bearing directly on the economic interests of American farmers, for example, and those of its residents living near its coasts and rivers.
The prospect that the Trump Administration may seek to exercise a constitutionally unproven power to unilaterally renounce a treaty that has been ratified by two-thirds of the U.S. Senate should therefore be a deeply alarming prospect for anyone who cares about the tradition of limited government and separation of powers in the United States. If the executive branch is able to successfully take such a step on an issue that is so clearly a matter of joint Congressional-executive responsibility, it will set a precedent that will make it all but impossible to prevent similar actions with regard to other treaties that directly impact the American economy, like the WTO and NAFTA. It will only further erode the Senate’s ability to constrain the executive in relation to mutual defense treaties such as NATO.
If the legislative and judicial branches of the U.S. government allow such a step to occur, therefore, it will irreparably damage the credibility of the United States on the world stage. No combination of legislative and executive commitment will ever be sufficient to assure America’s friends and allies of the country’s commitment to its bargains. A decision by President Trump to withdraw the U.S. from the UNFCCC, left unchecked, would thus be a sorry day indeed for the Republic – to say nothing of the climate.
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