In the midst of the great White House tug-of-war over what to do about the Paris Agreement, I just read the Legal and Economic Case Against the Paris Treaty from the Competitive Enterprise Institute (CEI), subtitled “Canceling U.S. Participation Protects Competitiveness and the U.S. Constitution.” I’ll eventually address both issues, but today let’s think a little bit about the constitutional claims being made here.

The document opines that the Paris Treaty is “constitutionally damaging” (p. 3), an “end-run around the constitutional treaty process” (p. 4); a “breach in the constitutional fabric” (p. 4); an “unconstitutional power grab” (p. 6); an “attempt to circumvent American constitutional constraints” (p. 8); etc., etc.

That’s some indictment. CEI’s argument is that while the Obama Administration characterized the Paris Agreement as an “Executive Agreement” that the President can execute on his own authority, the Paris Agreement is, in fact, a “treaty.” Therefore, according to the Treaty Clause in Article II of the Constitution, the Paris Agreement is not valid unless it is approved by two-thirds of the Senate.

Regardless of whether you have any interest at all in climate issues, I can unequivocally say that this is an absolute must-read for any lawyer in Washington: a 45-page document purporting to make a legal argument – and a constitutional legal argument at that – that does not cite a single legal decision. (The authors also fail to provide the actual text of the Treaty Clause).

Think about that for a second.

There are only two reasons why a lawyer doesn’t cite any cases when making a legal argument. The first is that no court has considered the issue. But the Treaty Clause (like the rest of Article II) has been around for almost 230 years, and the issue of what is and is not a “treaty” has been discussed plenty, e.g., B. Altman & Co. v. United States, 224 U.S. 583 (1912); United States v. Curtis-Wright Export Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore v. Regan, 453 U.S. 654 (1981); Weinberger v. Rossi, 456 U.S. 25 (1982); Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986); American Insurance Association v. Garamendi, 539 U.S. 396 (2003).

The second reason why a lawyer does not cite any actual legal decisions in support of a legal argument is that none of them can be brought to bear, which is precisely the case here.

First, each of the Supreme Court decisions listed above affirms the right of the President to enter into Executive Agreements that need not be subjected to the Treaty Clause’s Senate vote.  Or, as Chief Justice Rhenquist said in Garamendi, “our cases have recognized that the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”  Id. at 415.

Second, no decision – Supreme Court or otherwise – supports CEI’s argument that the substance of the Paris Agreement makes it a “treaty.”  Despite numerous such challenges to various Executive Agreements, no U.S. court has ever invalidated one of them on the grounds that it was actually a “treaty” that should have been subject to Senate approval. In fact, courts have concluded that they cannot even articulate any principle that would distinguish a “treaty” from any other agreement.

One example should suffice: If anything was ever a “treaty,” it would be NAFTA. And in Made in the USA Foundation v. United States, 242 F.3d 1300, 1315 (2001), the Eleventh Circuit was asked to invalidate NAFTA precisely on the grounds that it was a “treaty” that was not approved pursuant to the Treaty Clause. But the court simply could not come up with any criteria under which it could do so, because “the Treaty Clause also fails to outline the circumstances, if any, under which its procedures must be adhered to when approving international agreements”. Or, as one treaty scholar wryly observed, “One is compelled to conclude that there are agreements which the President can make on his sole authority and others which he can make only with the consent of the Senate (or of both houses), but neither Justice Sutherland [in United States v. Belmont] nor anyone else has told us which are which.” L. Henkin, Foreign Affairs and the United States Constitution 222 (2d ed. 1996).

Thus no court has ever articulated any test for what would make something a “treaty”, let alone CEI’s grab-bag of ad hoc criteria that “[t]he Paris Climate Agreement is a treaty by virtue of its costs and risks, ambition compared to predecessor climate treaties, dependence on subsequent legislation by Congress, intent to affect state laws, U.S. historic practice with regard to multilateral environmental agreements, and other common-sense criteria.”  

For better or worse, after 230 years of the Treaty Clause, we are left with the rather tautological situation that a “treaty” is simply any agreement that the President submits to the Senate under the Treaty Clause. And if CEI believes that needs to be fixed, then I suggest they propose the appropriate Constitutional Amendment.

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