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The Paris Accord and the Reality of Presidential Power

The Paris Accord and the Reality of Presidential Powerby Noah Feldman*


To critics of President Donald Trump’s decision to withdraw the U.S. from the Paris climate accord, it may seem like presidential fiat is a very dysfunctional way to do foreign policy. How, exactly, is such overwhelming power consistent with checks and balances? How can one man, even if he is the president, single-handedly alter our international obligations?

To critics of President Donald Trump’s decision to withdraw the U.S. from the Paris climate accord, it may seem like presidential fiat is a very dysfunctional way to do foreign policy. How, exactly, is such overwhelming power consistent with checks and balances? How can one man, even if he is the president, single-handedly alter our international obligations?

The short answer is the Constitution, not so much in its origins as in its evolution. It’s an important reminder that the tremendous power of the imperial presidency isn’t an unmitigated good -- at least when you don’t like the policies of the person holding office.

QuickTake What Comes of Paris Climate Accord Without U.S.

It’s important to note that President Barack Obama put the U.S. into the Paris climate deal exactly the same way Trump took the U.S. out, namely by unilateral executive action. Obama couldn’t have gotten two-thirds of the Senate to approve a climate protection treaty. That’s the constitutional requirement for a treaty, as designed by the framers, who for the most part didn’t contemplate that the president would be able to commit the U.S. internationally without the participation of Congress.

Understanding that he couldn’t turn the Paris deal into a treaty, Obama turned to a tool used by modern presidents to streamline international deal-making: the executive agreement.

An executive agreement doesn’t bring all the domestic legal effects of a treaty. Under the Constitution’s supremacy clause, treaties become the law of the land, which is not the case for executive deals.

But that isn’t a huge difference today. Executive agreements are internationally binding like treaties, because international law isn’t focused on domestic processes like ratification but on the promise to join the compact. The Supreme Court has weakened treaties by requiring explicit language for them to have direct domestic legal effect. And the court has also held that executive agreements can affect some domestic legal rights, a reflection of expanded presidential authority.

Indeed, the Paris accord was designed to accommodate the reality that Obama needed to be entering into an executive agreement, not a treaty. It doesn’t call itself a treaty or a protocol but an agreement. And it is in practical terms largely nonbinding, calling for countries to set targets without setting sanctions for noncompliance.

Some conservatives have argued that the Paris accord really is a treaty and should have been submitted to the Senate. But whether they’re right or wrong is a matter courts ordinarily wouldn’t address.

Given that Obama entered the Paris accord unilaterally, there isn’t much doubt that Trump can withdraw unilaterally. And liberals who would like to think otherwise would do well to recall that without the executive agreement option, the U.S. wouldn’t have joined the deal in the first place.

What’s more remarkable still is that, even if the Senate had approved the Paris accord as a treaty, Trump could have withdrawn without getting the Senate’s consent.

Logically, this doesn’t make much sense. If it takes the Senate to make a treaty, it stands to reason it should take the Senate to withdraw.

But to paraphrase Justice Oliver Wendell Holmes, the life of the Constitution has not been logic; it has been experience.

Almost as soon as the Constitution went into effect, presidential authority over foreign affairs began to grow at the expense of Congress. President George Washington issued a proclamation of neutrality in the war between England and France that broke out after the Louis XVI was guillotined -- even though the U.S. had a treaty of friendship with France. James Madison thought that proclaiming neutrality was like declaring war, a power that required a congressional vote. But Alexander Hamilton defended Washington’s decision -- and his view prevailed. 1

Much more recently, President Jimmy Carter unilaterally withdrew from the China-U.S. Mutual Defense Treaty, which guaranteed protection of Taiwan, in order to improve relations with the People’s Republic of China. The treaty had Senate ratification.

Yet when members of Congress, including Senator Barry Goldwater, challenged the withdrawal in court, the Supreme Court dismissed the case, Goldwater v. Carter, without even hearing oral argument. The best explanation, gleaned in part from separate concurring statements by Justices William Rehnquist and Lewis Powell, is that the court didn’t want to get involved in an interbranch dispute that it considered essentially political.

The upshot is that today, in practice, the president can take the U.S. out of any agreement -- even a treaty ratified by the Senate.

At least some of the framers -- especially Madison -- wouldn’t have liked the current situation very much. But the Constitution has evolved toward much greater executive power, especially in foreign affairs. And that evolution is largely irreversible.

So if you’re thinking that Trump has too much power, you’ve got an originalist, Madisonian argument on your side. But if like most liberals you believe in a living Constitution, you’ll have to grin and bear it.

Trump’s decision may be a mistake of historic proportions. But it’s consistent with the constitutional structure we now have -- one that makes the president the decider in matters of foreign relations.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Lovers of the "Hamilton" musical will be familiar with the international law argument that Hamilton advanced in a cabinet meeting where the issue was discussed. It involves (poetically) King Louis’ head in a basket, and was in fact based on the writing of Swiss authority Emerich de Vattel, who (arguably) thought that regime change justified ignoring treaty obligations.

*Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include "The Three Lives of James Madison: Genius, Partisan, President” and "Cool War: The Future of Global Competition.”

(bloomberg.com)

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