President Obama has just committed his most flagrant violation of the U.S. Constitution to date. He purported to commit the United States to a legally binding treaty without first obtaining consent by two thirds of the Senators present, as required under Article II, Section 2 of the Constitution. Obama is using the United Nations to end run the Senate with regard to the Paris Agreement on climate change negotiated last December.
Last week, Obama submitted an instrument to United Nations Secretary General Ban Ki-moon, for deposit with the UN, which he claims signifies official “acceptance” of the Paris Agreement by the United States. Obama said he and China’s President Xi Jinping together decided to “commit formally to joining the agreement ahead of schedule.”
Obama was constitutionally entitled to sign the Paris Agreement as an executive act, which he did in April of this year. However, signing the Paris Agreement was only the first step. In order for the Paris Agreement to actually take effect and enter into legal force, at least 55 countries representing at least 55 percent of global emissions need to formally join the Paris Agreement. This requires the further step of member states’ “ratification, acceptance or approval” of the Paris Agreement before their emissions can be counted towards fulfilling the 55 percent of global emissions threshold.
The United States is the second highest emitter of emissions, after China. Together the U.S. and China account for around 40 percent of global emissions. If the United States and China were to formally join the Paris Agreement via ratification, acceptance or approval, the 55 percent threshold target would be well within reach.
China presumably had no problem moving forward to formally join the Paris Agreement. However, in order to do his part so that the UN could declare the Paris Agreement to be in legal force sooner rather than later, Obama had to find a way to justify skipping over the constitutional requirement of U.S. Senate consent and still cause the U.S. to become bound to a treaty. The answer was to pretend that what the UN itself regards as a treaty, to which its parties would be legally bound once it came into force, was not really a treaty after all. It was only an executive agreement, the Obama administration argues, that is within the president’s power to enter into without any congressional involvement.
White House senior adviser Brian Deese offered up this sophistry at a White House press conference, held before Obama’s visit to China for the G-20 summit where he would act on the power he was usurping from the legislative branch. Deese claimed that Obama was using “his authority that has been used in dozens of executive agreements in the past to join and formally deposit our instrument of acceptance, and therefore put our country as a party to the Paris Agreement.” Deese tried to distinguish between “treaties that require advice and consent from the Senate” and “a broad category of executive agreements where the executive can enter into those agreements without that advice and consent.”
This blatant deception is undercut by the fact that the Paris Agreement is listed in the United Nations’ Treaty Collection under the heading “Multilateral Treaties Deposited with the Secretary-General.”
Legally speaking, Obama should have followed the “ratification” route, which, according to the UN Treaty Collection website, “grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty.” However, Obama knew that would be impossible. He chose instead a shortcut. He deposited with the Secretary General an instrument of “acceptance,” which the UN website defines as expressing “the consent of a state to be bound by a treaty,” with no domestic constitutional ratification required first.
The Obama administration used similar tactics to commit the United States to Obama’s disastrous nuclear deal with Iran, known formally as the Joint Comprehensive Plan of Action. The administration treated it as a non-binding political agreement which did not require Senate consent. Only after a bipartisan backlash from Congress did Obama agree to a congressional review period after which the Senate and House could pass a resolution of approval, a resolution of disapproval, or do nothing. The House passed a resolution of disapproval. The Senate would have also passed a resolution of disapproval, but was blocked from doing so by a Democratic filibuster, which spared Obama from having to exercise his veto power.
In the case of the Paris Agreement on climate change, Obama did not even go through the motions. He bypassed Congress altogether.
This matters because the Paris Agreement on climate change would drastically tie down our fossil fuel use in the immediate future and pick our pockets at the same time. In return, the developing countries offer meaningless voluntary pledges that they will do something about their own carbon emissions in their own time if they get paid to do it. Article 9 states that “Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention.” (Emphasis added) Article 9 is thus written in such a way as to be legally binding on the developed countries like the United States which become parties to the Paris Agreement.
President Obama is trying to use the United Nations treaty system to impose binding obligations under international law that he intends to outlive his presidency. As usual, the Constitution’s limits on his powers are of no consequence to him. Congress needs to step in immediately to make clear that his latest usurpation of power will not stand.