The President last week announced U.S. withdrawal from the Paris Agreement on climate change, but (so far as I know) he has not explained the legal basis of his action. Expanding on my prior post on the withdrawal, I think there are five possible bases, discussed below. (To avoid suspense, my preference is the last one: declaring the U.S. ratification of the agreement unconstitutional because Senate advice and consent was not obtained).
(1) The President can withdraw from the Agreement according to its terms. The President likely can withdraw even from treaties in accordance with their terms. No provision of the Constitution says otherwise, and the power to execute the laws and conduct foreign relations appears to include it. The Bush Administration unilaterally withdrew from at least two major ratified treaties (the Anti-Ballistic Missile Treaty and the ICJ Optional Protocol) in accordance with their terms, without major constitutional objection. Moreover, the main counterargument for treaties – that they are part of the supreme law of the land and so withdrawal involves a lawmaking function – doesn’t apply to the Paris Agreement, which isn’t a treaty and so isn't part of supreme law.
The problem, of course, is that the terms of the Agreement (Art. 28) preclude notice of withdrawal for three years after its effective date, and only after one year's notice. The President appears to understand the withdrawal to be effective immediately, or at least that the United States will immediately stop complying with the Agreement. But so long as the United States is part of the Agreement it has to comply, even if it intends eventually to withdraw (that's the point of notice requirements and provisions on delayed withdrawal: to obligate continued compliance pending withdrawal).
Another suggestion is that the President could withdraw from a related treaty, the UN Framework Convention on Climate Change, which — according to Article 28.3 of the Agreement — would also have the effect of withdrawing from the Agreement. But the President has not said he is withdrawing from the Convention, and withdrawal would have implications well beyond the Agreement.
(2) The President could claim power to abrogate all international agreements irrespective of their terms, as part of his executive power over foreign affairs. The Bush administration appeared to claim this power, at least as a theoretical matter, but did not follow through in practice. As I wrote at the time (93 Georgetown Law Journal 1213 (2005), and later in The Constitution's Text in Foreign Affairs), I do not think the Constitution gives the President this power, at least as to treaties, because the President must take care that the laws are faithfully executed. While withdrawing from an agreement in accordance with its terms is faithfully executing it, abrogating an agreement in violation of its terms is not.
(3) The President could claim power to abrogate executive agreements but not treaties. This is a stronger argument than (2) because executive agreements (such as the Paris Agreement) are not part of the supreme law of the land under Article VI. But abrogation of a binding executive agreement still involves a violation of international law. From international law’s perspective, a binding agreement entails the customary legal obligation of pacta sunt servanda irrespective of how it is approved under domestic law. So the President would have to claim constitutional authority to violate customary international law. Whether the President has this constitutional power is sharply debated even among originalist-oriented scholars.
(4) The President could argue that the Paris Agreement is nonbinding. If it is not binding, it seems straightforward that the President’s power over foreign affairs includes the power not to comply. No legal obligation is involved, so no limit on this power could be argued from either Article VI or the take care clause. (This is the case, for example, for the nonbinding Joint Comprehensive Plan of Action regarding Iran's nuclear facilities.) However, the Paris Agreement appears to be a binding agreement, on the basis of its terms, its formality and the way it has been treated by other countries. True, some parts of it are phrased in aspirational or discretionary ways, and those parts are likely nonbinding. The President thus could decide not to comply with them. But not complying with certain parts of the Agreement is different from withdrawing altogether. So I do not think this argument is plausible given the way the President appears to understand his action.
(5) The President could argue that the Agreement is unconstitutional. This is my preferred approach. The Agreement was not approved by the Senate in accordance with Article II, Section 2. (It also was not approved or acquiesced in by Congress as a whole, if one thinks that could be a substitute.). While the President has constitutional power to enter into low-level diplomatic arrangements on his own authority, the President does not have unilateral power to undertake material long-term obligations on behalf of the United States. The framers very clearly explained that the advice and consent of the Senate would be a check on any such presidential agreement-making. As a result, President Obama’s act of ratifying the Agreement without Senate advice and consent violated the Constitution. (I discuss this argument and counterarguments more fully here (Part II.B)).
One might argue then that the U.S. ratification was defective and the United States never actually became part of the agreement. But international law generally does not accept defects in domestic approval as defenses to violations of international agreements, unless the defects are manifest. (Otherwise, the opportunity for sand-bagging would be too great). Arguments justifying the President bypassing the Senate were made at the time, so it might be hard to say the defect in approval was so manifest to other parties to the Agreement that the United States was never truly bound.
However, I don’t think that matters for U.S. domestic purposes. Even if the United States is part of the Agreement as a matter of international law, the President’s first duty is to the U.S. Constitution. If the Constitution does not permit the United States to be part of the Agreement without the Senate’s advice and consent, then (under U.S. law) the United States cannot be part of the Agreement without the Senate’s advice and consent, regardless of what international law might say on the matter. And the President’s duty, arising from both the take care clause and the presidential oath, is to uphold and faithfully execute the Constitution. As a result, the President has authority to withdraw the United States from the Agreement, even in violation of its terms, in order to comply with the Constitution.
Some commentators have suggested that pursuant to this argument the President should submit the Agreement to the Senate for advice and consent. I don’t think that’s required, or even helpful. The President has constitutional power to decide not to submit signed agreements to the Senate for approval, if the President decides the agreement is a bad idea for policy reasons or the President decides Senate approval won’t be forthcoming. Presidents in the past have routinely made this decision (President Obama, for example, signed but did not submit the U.N. Arms Trade Treaty). Nothing in the Constitution requires otherwise. The Constitution only says that the Senate must consent before ratification; if the President decides against ratification the Senate has no role in that decision.
Relying on the Agreement’s unconstitutional method of ratification is not just the best legal justification of the President’s action. It has several associated benefits. First, it restores executive practice to the requirements of the Constitution’s text. And second, it constrains rather than expands executive power (unlike, for example, a broader claim that the President can abrogate properly ratified treaties or can generally violate international law).
Posted at 6:49 AM