A number of posts have noted this report in the New York Times:  Obama Pursuing Climate Accord in Lieu of Treaty.

Josh Blackman: President Bypassing Treaty Clause For Climate Change Accord?

Jack Goldsmith (Lawfare): Behind the NYT Climate Accord Story

Julian Ku (Opinio Juris): Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

Greg Weiner (Liberty Law Blog): The Very Definition of Tyranny

Here’s my quick assessment from an originalist perspective:

(1) The President can enter into any nonbinding agreement that he wants, on his own authority.    A nonbinding agreement (also called a “political commitment” — see here for the definitive article by Duncan Hollis and Joshua Newcomer) is by definition not a treaty, because a treaty is binding (as a matter of international law).  As a result, a nonbinding agreement is not covered by the treatymaking clause, and instead falls within the President’s executive diplomatic power.  (Note: this conclusion is different from Hollis and Newcomer’s, but they do not adopt an originalist approach).  So, if as the NYT report hints, this is just a political commitment, or voluntary undertaking, the President is on firm constitutional ground.

(2) The President has some limited independent power to enter into binding executive agreements (something Presidents have done since very near the founding).  That’s because the founding generation apparently recognized some kinds of binding international agreements that nonetheless were not treaties, and thus not covered by the treatymaking clause.  (Note the different treatment of “Treat[ies]” and “Agreement[s] or Compact[s]” in Article I, Section 10).  It remains a bit unclear what these non-treaty agreements were, but the best evidence — from Vattel and other eighteenth century international law writers — suggests that they were minor, short term agreements.  It seems unlikely that anything contemplated by the current climate change negotiations fit this description, but it’s possible.

(3) But, regardless, the President cannot unilaterally enter into any international agreement that has domestic effect in U.S. law.  Article VI lists the things that are the “supreme Law of the Land,” and international agreements made by the President alone are not listed (only statutes, treaties, and the Constitution itself).  Relatedly, the President may be able to make political commitments and executive agreements through the grant of “executive Power”; but the core meaning of executive power is that it does not include its opposite, lawmaking (legislative) power.

(4) The Supreme Court has departed from point (3) to some extent, allowing executive agreements settling claims against foreign governments and foreign companies to have domestic effect in U.S. law.  Some people have read these decisions (U.S. v. Belmont, U.S. v. PinkDames & Moore v. Regan, and American Insurance Association v. Garamendi) to have broader application to executive agreements more generally.  But the Court in Medellin v. Texas described these prior cases as focused narrowly on settlements, and declined to extend them.  In my view, an originalist approach — even if strongly inclined to respect precedent — is not obliged to extend precedent to new situations.  As a result, an originalist approach would not accept executive agreements with domestic legal effect outside of settlement agreements (which are not part of the climate change negotiations).

As a result, my view is that the President has very broad power to make political commitments regarding climate change, but very narrow power to make binding commitments as a matter of international law and no power at all to alter U.S. domestic law.

I discuss the President’s power in these areas, and outline an approach to originalism and precedent, in The Supremacy Clause, Original Meaning, and Modern Law(Ohio St. L.J. 2013).

Michael D. Ramsey
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