Conservative media are suggesting that the Obama administration is "working with foreigners to subvert the Constitution" by seeking a climate agreement with other nations without Senate approval, but legal experts agree that because it is not expected to be legally binding, the accord does not require Senate ratification.
Obama Administration Announces It Is Seeking A Non-Legally Binding Climate Accord
NY Times: Obama Is Seeking "Politically Binding" Rather Than Legally Binding International Climate Agreement. The New York Times reported that the Obama administration is seeking a "politically binding" rather than legally binding agreement that would "name and shame" nations that don't comply at the upcoming United Nations summit meeting in 2015:
The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.
In preparation for this agreement, to be signed at a United Nations summit meeting in 2015 in Paris, the negotiators are meeting with diplomats from other countries to broker a deal to commit some of the world's largest economies to enact laws to reduce their carbon pollution. But under the Constitution, a president may enter into a legally binding treaty only if it is approved by a two-thirds majority of the Senate.
To sidestep that requirement, President Obama's climate negotiators are devising what they call a "politically binding" deal that would "name and shame" countries into cutting their emissions.
Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming. [The New York Times, 8/27/14]
Experts Agree This Is Clearly Constitutional And With Precedent
Climate Law Expert: A Non-Binding Agreement Would Be Constitutional And Have Precedent. In an interview with Media Matters, Columbia University Law Professor Michael B. Gerrard, who is the director of the Sabin Center for Climate Change Law, stated that "from the press reports and from everything else I've heard, it would be a non-legally binding agreement of the sort that should not require Senate ratification." He added that "there are numerous international agreements that the U.S. enters into without -- without Senate ratification. The most prominent of them is in 1945, FDR negotiated the Yalta agreement with Churchill and Stalin -- an enormously consequential agreement -- but never obtained Senate ratification. So the President has considerable, you know, foreign affairs powers."
When asked if he saw merit in the complaints that the potential accord is somehow unconstitutional or fits in with a pattern of President Obama overstepping his power, Gerrard laughed, saying "the short answer is no," before expanding that this is connected to the U.S. Environmental Protection Agency's plan to regulate greenhouse gas emissions under existing statutes and that the "Supreme Court has three times affirmed that the existing Clean Air Act authorizes EPA to regulate greenhouse gases without further Congressional action." [Phone Interview with Media Matters, 8/28/14]
UN Expert: It's "Not Unconstitutional... Presidents Have Done It Countless Times In The Past." John H. Knox, a UN independent expert on human rights and the environment and professor of international law at Wake Forest University School of Law, said in an email to Media Matters that "[I]t isn't unconstitutional for the president to negotiate political commitments such as the climate accord," adding that "presidents have done it countless times in the past":
No, it isn't unconstitutional for the president to negotiate political commitments - presidents have done it countless times in the past. Famous examples include the 1941 Atlantic Charter on cooperation among the Allies in World War II, the 1975 Helsinki Accords on East-West relations, and the 1992 Rio Declaration on environmental protection, among many, many others.
These political accords aren't legally binding. As a result, there's no requirement - under the Constitution or otherwise - for the President to seek Congressional authorization or approval, either through the two-thirds majority of the Senate required for "treaties" or for the majority of both houses required for certain other types of international agreements. [Email to Media Matters, 8/28/14]
American University Law Fellow: Proposal Has "Vast Precedent." William Snape, an environmental fellow and practitioner-in-residence at American University stated in an email to Media Matters that the proposal for a climate accord "is constitutional (and otherwise legal) and has vast precedent with regard to US trade agreements." [Email to Media Matters, 8/28/14]
Earthjustice Attorney: Claim Of Unconstitutionality Is "Off The Rails." In an interview with Media Matters, attorney Erika Rosenthal, who specializes in climate policy and international negotiations at Earthjustice, called the allegations of a climate accord being unconstitutional "off the rails" and "completely without merit":
This seems to be the go-to response when Fox News can't figure out anything else to say.
The charge that the President of the United States is trying to make progress on a critical issue for all Americans in the face of a do-nothing Congress is unconstitutional? It's off the rails. It's completely without merit. What the Obama Administration is doing is faithfully executing the law of the United States.
The Obama Administration is not making up a new category of international agreement. It is not trying to pull the wool over the American people; it is not trying to pull the wool over Congress. What he's doing and saying is he's working within the political realities of a broken Congress. [Phone Interview with Media Matters, 8/28/14]
NY Mag's Chait: "This Is Not A Case Of Executive Overreach." In an article for New York magazine, Jonathan Chait cited experts explaining why "this is not a case of executive overreach":
[U]nlike Obama's reported plans to enact sweeping immigration reform without Congress -- this is not a case of executive overreach.
You don't need a formal treaty to coordinate international action. Here we get into the core of the question. Exactly what level of commitment requires a formal treaty turns out to be a huge gray area. Daniel Bodansky, a law professor and former State Department climate negotiator, has a paper going through the ins, outs, and what-have-yous. The short answer is that political commitments that lack legal force can work as well, or possibly even better, than binding treaties. ("Agreed outcomes that are not adopted as treaties can have political force. Violations of such political agreements may have significant reputational costs, but they do not have any international legal consequences.")
Center for American Progress fellow Peter Ogden, the former White House National Security staff director for climate change and environmental policy, points out in Foreign Affairs that the Copenhagen summit, which failed to produce a binding treaty, "was actually a turning point in international climate talks," and has produced significant carbon reductions.
The danger in this approach is that a future administration could renege. But that possibility depends, in turn, on how well the regulations actually work. The Obama administration's climate regulations are modest, but they are also projected to impose low costs on consumers and business. If the regulations actually deliver, encouraging the market to find inexpensive ways to switch to cleaner fuels, and to save money through conservation, then the incentive to revert back to unregulated carbon emissions will be small. Doing so might even impose new costs on businesses that had adjusted to Obama's regulations. [New York, 8/27/14]
Yet Conservative Media Claim Move Is Unconstitutional
National Review Online Suggests Obama Is "Working With Foreigners To Subvert The U.S. Constitution." National Review Online's Jim Geraghty suggested the administration "confirm[ed]" on the "front page of the New York Times" that the president is "working with foreigners to subvert the U.S. Constitution":
If you cannot get the Senate to ratify a treaty (technically, passing a resolution of ratification), then the United States is not a party to that treaty. Period. Full stop. The Constitution is not iffy on this. This part is not a suggestion. There is no wiggle room.
There are a lot of nonsensical or highly exaggerated chain e-mails accusing the president of working with foreigners to subvert the U.S. Constitution. But this time you've got the foreigners and administration officials themselves confirming it on the front page of the New York Times! [National Review Online, 8/27/14]
Fox News' Stephen Hayes Suggests Potential Agreement Is "Constitutionally Indecent." Weekly Standard columnist and Fox News contributor Stephen F. Hayes said that this is "the kind of scheme" someone would expect to get from "your crazy uncle who's worried about a world government taking over" and is "more constitutionally indecent than potential strikes on ISIS." From the August 27 edition of Fox News' Special Report with Bret Baier:
STEPHEN F. HAYES: This is the kind of scheme that I would've expected to get or somebody would expect to get from, you know, your crazy uncle who's worried about a world government taking over and Obama working with world government. This is -- you can't imagine that this is a real policy. And it turns out that people who were paranoid about it were actually right that the Administration would do this, and the most striking thing about this, in reading The New York Times story, which broke the story today, front page of The New York Times story, I think in paragraph three of four, you have Obama Administration officials in effect talking aloud about how they're going to work around the Constitution. You know there's this pesky little thing, this ratification thing that we need to work around and here's how we're going to work around it. It's unbelievable that they would actually talk about it in this open a fashion. And Josh Ernest, you know from the podium at the White House saying, well you know this is really how we have to get around Congressional dysfunction. That's total nonsense.
CHARLES KRAUTHAMMER: Would you say it's constitutionally indecent?
HAYES: I would say it's more constitutionally indecent than potential strikes on ISIS. [Fox News, Special Report with Bret Baier, 8/27/14]
Tucker Carlson: There Is "No Legal Justification" For Climate Accord. Fox News' America's Newsroom played a clip of Sen. Rand Paul suggesting that the potential climate accord is an example of President Obama acting like a "king." Daily Caller editor and Fox News co-host Tucker Carlson then agreed, saying there is "no legal justification" for this as the "U.S. constitution makes clear":
TUCKER CARLSON: In the case of global warming, climate change, I mean, there is no legal justification for that. The U.S. Constitution is very clear, if you want to enter into a treaty with a foreign power you need the Senate to vote on it and to sign off on it, and that, of course, would never happen. So that's just completely over the top that they'd even talk about that. [Fox News, America's Newsroom, 8/28/14]
FoxNews.com Suggests Obama May Be "Bypass[ing]" The Constitution. From the front page of FoxNews.com on August 27:
[Screengrab from FoxNews.com, accessed 8/27/14]