Reports indicate that the President may ratify the Paris Agreement on climate change shortly: White House defends Obama evading Senate on Paris climate deal. Is the ratification unconstitutional, as this headline implies? I think so (see my earlier thoughts here), but it's a somewhat complicated question.
There's nothing wrong with the President "ratifying" an international agreement. In international law, ratification is the formal consent of a country to be bound by an agreement, now usually signaled (especially in a multilateral treaty) by depositing an official "instrument of ratification" with some international body. The President, who exclusively possesses the nation's diplomatic power, necessarily has the exclusive power to take such an action.
We sometimes say that under the Constitution, the Senate "ratifies" treaties. (Sadly, even the Supreme Court says it). That's simply wrong. The word "ratify" does not appear in the treatymaking clause — which says that the President has power to "make" treaties. However, the President can only make treaties "by and with the Advice of the Senate … provided two thirds of the Senators present concur." Ratification is the final step in "making" a treaty. So the problem isn't that the President is ratifying the agreement (something Presidents do all the time, exercising their power to "make" treaties); it's that the President is ratifying the agreement (thus "mak[ing]" it) without getting the Senate's consent.
However, that's a problem only if the agreement is a "treaty." As I and others have written at length, the Constitution's text, international law background and post-ratification practice all strongly indicate that the framers recognized a category of international agreements that were not treaties (a summary version, with further citations, is in this article). These agreements (now generally called "executive agreements," though I prefer "non-treaty agreements") are common in modern practice and have been endorsed by the Supreme Court. But obviously they can't encompass every sort of international agreement, or the treatymaking clause would be meaningless (and in any event it is clear from the founding-era materials that most important international agreements were understood to be treaties that would be subject to the treatymaking clause). So the issue is whether the Paris agreement is, in constitutional terms, a non-treaty agreement.
At Lawfare, David Wirth (Boston College) argues that it is: Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power? Although I agree with the way he frames the issue, I find his analysis difficult to assess because he sets out no comprehensive theory of when a President can enter into a non-treaty agreement. He appears to have three arguments for independent presidential power (he also argues that the agreement, or at least parts of it, may be authorized by statute or a prior treaty; I leave that argument aside for now). Basically the three arguments are (1) the principal obligations in the agreement are nonbinding; (2) the binding aspects of the agreement are "procedural"; and (3) the obligations of the treaty are consistent with existing domestic law regarding emissions.
These claims track the arguments made by Professor Daniel Bodansky that I analyzed here. Briefly, I think they are mostly unpersuasive, or at least incomplete. I see no reason to think that "procedural" obligations are categorically outside the treaty power. Professor Wirth says
Exchanging information with other states is a Constitutional power of the President as Chief Executive and the U.S.’s top diplomat, the “sole organ” of the Nation in dealing with foreign governments. Even in the absence of express statutory or treaty authority, the President may engage in information exchange and cooperation with foreign government in the environmental field, as demonstrated by a 1980 executive agreement with Canada on acid rain.
I agree with every word here (I'm happy to hear him endorse the theory of executive power over foreign affairs), but that does not show that the President can enter into binding agreements regarding exchanges of information. A binding agreement binds not just this President but the next one (at least as a matter of international law). This may be a material limit. Suppose this President purports to enter into an agreement to share classified information with Russia. Assuming the next President takes international law seriously, this is a substantial limit on the next President's foreign policy discretion. That does not seem like something one President should be able to impose unilaterally on a subsequent President, even if it is in some sense "procedural."
Also unpersuasive is the suggestion that the existence of domestic authority to implement the agreement obviates the need for Senate approval of the agreement. Professor Wirth writes:
Domestic statutory authority, such as the Clean Air, further buttresses the U.S.’s capacity to implement these commitments.
Perhaps so, but the ability to implement obligations under domestic law should be completely irrelevant to the President's capacity to undertake the obligations in the first place. It's one thing to have statutory authority at the present moment; it's something entirely different to lock in that authority (to some extent, anyway) by making withdrawal of it a violation of international law. As I wrote previously:
converting a domestic law into an international obligation is a material step. Domestic law can be repealed without international repercussions. However, once a provision of domestic law is embedded in international law, it cannot be repealed without violating international law and upsetting international expectations. It is true that, as a matter of U.S. domestic law, Congress can violate international law if it chooses. But it cannot violate international law without repercussions (at least in terms of reputation). Put another way, undertaking an international law obligation that parallels a provision of domestic law is an international promise not to repeal the law. I think it unlikely that the President has unilateral power to promise other nations that a law will not be repealed.
Professor Wirth's third contention on sole executive power is that the material obligations of the Paris agreement are all nonbinding, and so the agreement as a whole contains only minor binding commitments. In general I agree with this position (see here). My general view of the non-treaty power is that it allows the President to make agreements on minor diplomatic matters without Senate consent. I also agree that, again as a general matter, the President can make nonbinding commitments; nonbinding commitments do not implicate the treaty power because treaties are necessarily binding (also discussed in more detail here).
However, I am not convinced that all of the binding commitments in the Paris agreement are immaterial. Professor Wirth does not show that they are. And that, I think, is the showing that defenders of the agreement must make.
Posted at 6:21 AM