By Sam Mulopulos
For all the applause for the Paris Climate Agreement, current treatment of the agreement is almost certainly a violation of the treaty clause of the U.S. Constitution.
Article II, Section 2, Clause 2 of the Constitution stipulates, "The President...shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Most international agreements, especially ones sharing the magnitude of the Paris Accord, are treaties in the constitutional sense and should be presented to the Senate as such. President Obama's decision to evade the Constitution by entering into the agreement, which will have major domestic impacts, and treat the accord as anything less than a treaty is an abrogation of his oath of office.
The purpose of including a congressional role in the ratification of treaties was intentional on the part of the Framers of the Constitution. The Framers understood the need to give the President latitude to negotiate international agreements, but demanded the Senate provide a check on the President to ensure that only treaties fulfilling the national benefit be brought into force. Framer James Wilson was succinct: "neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce the security of the people."
Requiring two thirds of the Senate to approve a treaty was also intentional. The individuals who drafted the Constitution wanted to make sure that regional interests could not scrap together a bare majority to approve a treaty. By requiring a supermajority of Senators, they ensured that certain regions could not approve of treaties disadvantageous to other parts of the country. In the context of the Paris Climate Accord, energy producing states stand to lose the most. States like Kentucky, West Virginia, Wyoming, and North Dakota will be disadvantaged by the onslaught of regulations stemming from the Paris treaty. It seems inappropriate for the President to tell the country to accept the Paris Accord without ever letting the representatives of 'We The People' weigh in on his decision.
The agreement also contains legally binding elements, which indisputably trigger the ratification requirement. Under the accord, nations must submit emissions reduction targets and review those targets regularly. Even Laurent Fabius, president of the international meeting that created the Paris Accord, and the European Union have acknowledged the binding legal nature of parts of the Paris instrument. Some contend that this distinction about whether the treaty is sufficiently binding is unnecessary, alleging that the Paris Agreement does not require the United States to exceed its commitments under the United Nations Framework Convention on Climate Change (UNFCCC), the legal grandfather of the Paris Treaty. However, when the Senate ratified the UNFCCC in 1992 it was with the explicit understanding that future fruits of climate change conferences would be submitted to the Senate for advice and consent as well.
As a supplement to the text and structure of the Constitution's treaty clause, the State Department has promulgated its own definition of what constitutes a treaty. The Foreign Affairs Manual (11 FAM 721.3) contains eight components to help officials identify when an international agreement rises to the constitutional treaty threshold. The Paris Accord passes the test with flying colors (a full discussion of the eight State Department elements of a treaty can be found here). The agreement involves commitments that affect the entire country, as it requires the United States to set national policy, like the Clean Power Plan, to meet emissions reduction targets. The agreement also requires congressional action independent of ratification. Only Congress can appropriate money for the treaty's Green Climate Fund, an international account to help poor nations combat the worst effects of global warming. The predecessors to the Paris agreement, the UNFCCC and the Kyoto Protocol, were also considered to be treaties, and Congress has proactively introduced legislation showcasing its desire to debate and consider the agreement. Support for considering the Paris Accord as a treaty is not a radical, reactionary belief, especially as it passes the President's own State Department test for determining what exactly embodies a treaty.
When it comes to the Constitution, President Obama may lament that he is "constrained...by a system that our Founders put in place." But those constraints are vital. Constitutional constraints like the treaty clause create an environment in which consideration of the Paris Accord by the Senate is actually in the best interest of both supporters and critics. For critics, open debate in the Senate presents the opportunity to address grievances with the agreement's substance. It would be in the national interest to raise questions about U.S. commitment under the agreement, America's proper role in international climate policy, and the strategic direction and efficacy of domestic climate change mitigation efforts. For supporters, it would not only be an opportunity to respond to critics, but Senate passage of the Paris Accord would add needed legitimacy to their cause. Flying under the radar of constitutional authority only increases the likelihood of being shot down by courts or domestic noncompliance. If supporters are confident enough in the agreement's merits, they should seek the robust protections and legitimacy afforded by Senate ratification.
As Alexander Hamilton remarked in Federalist 75, "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous...to the sole disposal of... a president of the United States." The Paris Climate Agreement is something delicate and momentous, and should be treated as such. Mr. President, you are a constitutional lawyer. Please focus on what your Constitution demands.
Sam Mulopulos is an Energy and Environment Fellow at Young Professionals in Foreign Policy, and legislative staffer in the United States Senate. He has a degree in political science, and a concentration in environmental studies from Grinnell College. The views expressed herein belong to the author alone in no way reflect the views of the U.S. Senate or any of its members.