This Friday is “Earth Day” and by all indications the Obama administration intends to celebrate it by traveling to the United Nations in New York and signing the Paris Agreement on climate change. Despite the pomp and circumstance of a U.N. Headquarters signing ceremony, President Obama claims that the Paris Agreement is not a treaty. Since he claims it is not a treaty, he does not plan to submit the Agreement to the Senate for approval.
The problem is that the Paris Agreement is certainly a treaty. I reviewed enough treaties during my time in the Senate where I served on the Foreign Relations Committee to know. But don’t take my word for it. The State Department’s internal guidelines make clear that the Paris Agreement is a treaty.
Those guidelines, known as the “Circular 175” procedure, demonstrate that the Paris Agreement is a treaty. For example, the Agreement makes environmental commitments that affect the U.S. as a whole. The Agreement is formal and complex rather than informal and routine. The Agreement is open-ended and requires the U.S. to deliver untold billions of dollars to a “Green Climate Fund” for redistribution around the world to pay for “green projects” in foreign countries. These all indicate that the Agreement is a treaty and not a mere executive agreement, as the president claims.
But how does an agreement of such significance avoid Senate review? After all, the president himself said that the Agreement “represents the best chance we have to save the one planet we’ve got.” The White House released a statement referring to the Agreement as “historic” and “the most ambitious climate change agreement in history.” For his part, my former colleague and current Secretary of State John Kerry stated that the Agreement “will empower us to chart a new path for our planet.”
I suppose the president and Secretary Kerry intend to save the planet without the help of the Senate.
The fact is the White House gave up the game about a year ago when it signaled it would bypass the Senate no matter what. In March 2015 White House spokesman Josh Earnest was asked whether the Paris Agreement (which had not even been negotiated yet) would be submitted to the Senate for approval. Earnest replied, “I think it’s hard to take seriously from some Members of Congress who deny the fact that climate change exists, that they should have some opportunity to render judgment about a climate change agreement.”
So apparently the Senate must first agree with the president’s views on climate change before any treaty on the matter will be sent to them? I don’t believe the Constitution works that way.
The irony is that the president, while ignoring his Constitutional duty to submit treaties to the Senate, continues to exhort my former colleagues to “do their job” under the Constitution and confirm his Supreme Court nominee, Merrick Garland — as if they’re not doing it already. These exhortations are just the latest example of the president’s funny habit of appealing to the Constitution when it suits him and ignoring it entirely when it doesn’t.
The president’s allies in the Senate have parroted his calls to adhere to the Constitution and confirm Mr. Garland. Indeed, current Judiciary Committee ranking member Sen. Patrick Leahy, Vermont Democrat, literally waved a copy of the Constitution in the air to make his point about his supposed reverence for it. Other former colleagues of mine who are Democrats, like Sen. Chuck Schumer of New York, have suddenly become Constitutional originalists, calling Senate Majority Leader Mitch McConnell an obstructionist.
If only my former colleagues’ fidelity to the Constitution extended to all issues and not just those that advance the president’s agenda.
The funny thing is that Supreme Court nominations and Senate advice and consent on treaties are both covered by the same part of the Constitution — Article II, Section 2. That article states that 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; and he shall nominate, and by and with the advice and consent of the Senate judges of the Supreme Court.”
Of course, the Senate is absolutely doing its duty under the Constitution in delaying mr. Obama’s nominee. “Advice and consent” means the Senate can confirm — or refrain from confirming — anyone it likes. It is not up to the discretion of a president, however, whether he submits his treaties (or nominees) to them.
So I suppose we can wish the president a Happy Earth Day on Friday while hoping that one day he and his Senate allies will also recognize and celebrate Friday, Sept. 16 — Constitution Day. But I doubt it.
Perhaps we can all celebrate on yet another Friday — Jan. 20, 2017 — with the inauguration of a president who, since the Paris Agreement is a mere “executive agreement,” will promptly withdraw the U.S. from membership. Let’s hope.
- Jim DeMint is president of The Heritage Foundation
Originally appeared in The Washinton Times