The Committee has requested that I address the legal aspects of the climate agreement being negotiated in Paris, particularly the limitations that domestic law imposes on the President’s ability to make commitments on behalf of the United States. In this instance, the law cannot be viewed in isolation—at least, not if one desires to understand the constraints as perceived by the Administration as it negotiates in Paris. To be sure, there are real legal barriers that will restrict the President’s flexibility in Paris. Not all of them, however, are directly enforceable, and overreaching where judicial review can be avoided or evaded has been, as we all know, a hallmark of this Administration’s approach to policy making. Even so, whatever international‐law obligations it may purport to impose on the United States, any treaty that comes out of Paris will have to be implemented by Congress through legislation to have a meaningful domestic effect.
As a legal matter, then, Paris is a charade. While the President and his allies may attempt to use a Paris agreement as a political bludgeon, it cannot and will not alter the legal obligations of any American.
That conclusion has implications for Congress, for the President, and for our negotiating partners in Paris. First, Congress can and should continue to make clear its policy views so that there is no ambiguity at Paris regarding the U.S. position on what can and will be implemented. Second, the President should exercise restraint and refuse to make commitments that go beyond clearly existing legal authority, unless he is willing to put the deal to a vote. Making nominally binding international commitments that the nation has no intention of actually carrying out, so as to influence domestic politics, would be stunningly cynical and irresponsible, inflicting unnecessary injury to the United States’ credibility in international affairs for the sake of scoring political points. But, third, if the President does follow that cynical course, our negotiating partners should not be deceived about the extent of the President’s authority, his reliability as a negotiating partner, and the likelihood that the United States will honor commitments made unilaterally by the President in reliance on his sole authority.
I. The Limitations of Executive Agreements
The legal status of an agreement struck in Paris involves two kinds of issues: first, the contents of the agreement itself and the obligations it establishes as a matter of international law; and, second, the extent to which the agreement imposes binding obligations within the United States. Logically, these are separate things: not every international agreement becomes or is implemented in U.S. law. But as a practical matter, they are interconnected: the President wants to negotiate an agreement in which the United States is a participant, not a bystander. And in theory, that means he has to grapple with the requirements that U.S. law imposes regarding international agreements and attempt to negotiate an agreement that stands a chance of becoming law in the United States.
There are two ways that the United States can become party to a formal international agreement. The Treaty Clause of the Constitution empowers the President of the United States to propose and chiefly negotiate agreements,which must be confirmed by a two‐thirds vote of the Senate—67 votes.1
Longstanding practice, validated by legislative and judicial actions, also recognizes that the President may enter into certain international agreements without separate ratification by the Senate.2 According to a recent tally by the Congressional Research Service (“CRS”), over 18,500 such “executive agreements” have been completed—with the bulk from recent decades—compared to 1,100 ratified treaties.3
Executive agreements are generally divided into three categories:
- Congressional‐executive agreements are those approved by majorities in both chambers of Congress, as with normal legislation. Trade agreements like the North American Free Trade Agreement(“NAFTA”) are often implemented in this manner. Congressional authorization can come either before or after the President signs the agreement.
- Treaty‐executive agreements are those that add annexes, protocols, or the like pursuant to the terms of an existing treaty. For example, the United States is a party to the Convention on International Trade in Endangered Species (“CITES”), which requires parties to regulate the import and export of listed species. The Convention provides a mechanism to list additional species, and such additions are regarded as treaty‐executive agreements.
- Sole executive agreements are those based solely on the President’s authority—typically his power as Commander in Chief or as representative of the nation in foreign affairs. Such agreements have traditionally concerned things such as the recognition of foreign states and international emergencies. For example, the Algiers Accords terminated private lawsuits in U.S. courts against Iran, and released Iranian property, in exchange for the release of U.S. hostages held by Iran. The Accords were upheld by the Supreme Court on the ground that the agreement was consistent with U.S. policy, as evidenced by statutes concerning the “President’s authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement.“4 The Executive Branch has taken the view that the President may enter into sole‐executive agreements that can be implemented pursuant to existing statutory authority that the President is duty‐bound to faithfully execute.5
The availability of the executive agreement as a means of concluding international agreements raises a question: what, exactly, is the difference in scope or legal effect between a treaty entered pursuant to the Treaty Clause and an executive agreement? In other words, are there certain agreements that can only be concluded through a treaty ratified by the Senate (or through congressional approval), or are the two means of concluding agreements functionally identical?
Unsurprisingly, the State Department’s view is that the only difference between a treaty and an executive agreement, even one executed on the President’s sole authority, is that a treaty is ratified by the Senate. In other words,there is no class of agreements that can only be ratified as treaties, rather than by the executive acting alone.6 The Senate, of course, takes a different view.Its position is that any significant international commitment should be entered into as a treaty or at least as an executive agreement with authorizing legislation.7
Being seldom litigated, the line between treaties and executive agreements is not one clearly delineated in the case law. What we do know is that historical practice and Congress’s consent count for a lot in this area. “[L]ong continued practice, known to and acquiesced in by Congress, would raise a presumption that the action had been taken in pursuance of its consent.“8 Likewise, “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned may be treated as a gloss on ‘Executive Power’ vested in the President.“9 Accordingly, the President’s authority to enter into executive agreements is secure where he draws on consistent support in historical practice and congressional acquiescence, but his power is at its lowest ebb where he lacks those things.10
A final, but important, background point is that merely signing a Paris agreement will not necessarily give the agreement’s strictures force as domestic law that is enforceable against Americans. While international agreements “may comprise international commitments…[,] they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self‐executing’ and is ratified on these terms. “11 Instead, “when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.“12 The key question is whether “the treaty contains stipulations which are self‐executing, that is, require no legislation to make them operative.“13 The need for legislation may be due to the text of the agreement itself, the need for specificity and implementation, or constitutional requirements14—for example, that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.“15 In this respect, congressional action may be necessary for an international agreement’s terms to have domestic legal force.
II. What Exactly Can the President Cram into a Sole Executive Agreement?
Based on governing legal principles, as well as drafts and news reports regarding pre‐Paris negotiations, one can evaluate the potential terms of an agreement and how they are likely to be implemented. At this time, a surprising amount remains to be decided. The pre‐meeting draft agreement runs to 51 pages, with more alternatives and options than a diner menu.16 Everything seems to be in flux. Developing nations are demanding binding financial commitments. Some European Union nations want emissions reductions— referred to, in exquisite bureaucratese, as “Intended Nationally Determined Contributions” (“INDC”)—to be binding. Others want only implementation measures to be binding. One proposed article on “compliance” would establish an “International Tribunal of Climate Justice” to rule on countries’ compliance on “mitigation, adaptation, provision of finance, technology development and transfer and, capacity‐building” and exact punishment—what kind isn’t said. An alternative to that option is “No reference to facilitating implementation and compliance”—in other words, strike the article altogether. In typical fashion, there’s a third alternative: set up a committee to hold more meetings and publish another report. Procedural commitments like regularly updating INDCs, which had once seemed to be a point of agreement, are now in contention. Even the exact form that a final agreement may take is up in the air: for months, the Obama Administration has touted the possibility of a “hybrid agreement” that separates binding and non‐binding commitments and buries more controversial items in separate annexes.17 But the parties are still arguing over what goes where.
In the domestic context, one thing we know for sure is that the the President’s legal flexibility is limited. No Paris agreement is going to be ratified by the Senate as a treaty: the President lacks the votes. Likewise, the President lacks the votes for approval by both chambers of Congress as a congressional executive agreement. This also means that there is no likelihood, at least for the foreseeable future, that Congress will enact legislation to implement any provisions of an agreement that are not self‐executing. Accordingly, only those provisions supported by prior treaty authority or statutory authority, or falling within the Executive’s exclusive purview, can be carried out under the President’s sole authority. As a practical matter, then, the President’s ability to conclude or give effect to many potential components of a Paris agreement is severely constrained.
But the details matter. There are certain items, likely to be part of a final agreement, that are probably within the President’s authority to adopt. But the key items, the ones that would give a Paris accord actual substance commensurate with the hype, are not among them. Let’s consider, then, the legal basis for adoption of the major components of the most recent draft agreement.
A. Aspirational Gibberish? Sure!
Inevitably, the first few pages—or even more—of the final agreement will consist of aspirational language with no intended legal effect. For example, from the draft: