Senate Republicans will do almost anything to stop the president from signing an international climate change agreement. They’re quickly realizing, however, that their options are limited.
Take Wyoming Senator John Barrasso, who said the following at an October 21 hearing about the then-upcoming climate negotiations: “We need to send a message to the nations that are partners with the president in any final deal that, beyond a shadow of a doubt, the Senate will not stand by any agreement that binds the American people to targets or timetables on emissions without our advice and consent.”
On first reading, Barrasso doesn’t seem like a man ready to admit defeat, but he may as well have been waving a white flag. To understand why, you have to go back to March.
TREATIES AND NEAR TREATIES
While President Obama was attempting to negotiate a cessation of Iranian nuclear enrichment last spring, 47 Republican senators sent a threatening letter to Iran’s leaders. It was a ham-handed attempt to intimidate the Iranians and scupper the deal. The senators overstated the Senate’s advice-and-consent role and warned Iran that most members of Congress would still be around long after President Obama left town. Experts of all political stripes derided the letter as amateurish, wrong in its description of the law, and possibly unconstitutional.
The more telling aspect of the letter was the way it laid bare the senate’s relative impotence in matters of foreign policy. The Republican majority deployed desperate measures to derail the Iran agreement—and failed badly. A sharply worded letter makes sense if your vacuum cleaner belt breaks the day after the warranty expires. A co-equal branch of the United States government should have stronger options.
That the Senate doesn’t is entirely of its own doing. By promising to block any presidential initiative that comes its way, Congress has encouraged the president to work around the legislative branch whenever the Constitution permits. In matters of foreign relations, it usually does.
One example is the way in which the president structures deals. The onerous advice-and-consent process, which requires 67 senators to approve treaties, does not apply to executive agreements, which are basically lesser international accords. The legal distinction between the two is nebulous, often allowing presidents to pick whichever form is most convenient.
THE PARIS DEAL
This brings us back to the climate change negotiations in France. Secretary of State John Kerry recently told the Financial Times that the Paris agreement is “definitively not going to be a treaty.” The revelation was hardly a surprise—when it comes to a climate change agreement, this Senate’s advice and consent would be Don’t do it and Hell no—but it still angered Republicans. In November, members of Congress introduced a bill to require the president to submit the climate change agreement for Senate consideration. Even if it were to pass, the bill would surely trigger a veto.
The president has no reason to accept Senate review. He is well within his rights to make an executive agreement on climate change, as long as he structures it the right way.
Here’s the trick: Only treaties can impose new legal obligations on the U.S. However, if the legal obligations are mere clarifications of duties agreed to in an existing treaty, then an executive agreement is an alternative. In this case, the existing treaty is the United Nations Framework Convention on Climate Change, which the U.S. ratified way back in 1994.
That document, with all its solemn and highfalutin shalls, created most of our international climate change obligations. Article 4.2 states that the parties “shall adopt national policies and take corresponding measures on the mitigation of climate change.” Article 4.4 states that the developed world “shall also assist the developing country parties that are particularly vulnerable.” Article 4.1 states that parties “shall develop, periodically update, publish, and make available ... national inventories of anthropogenic emissions.”
It’s all there in the ratified treaty, President Obama will argue. The Paris agreement will only refine those existing obligations—cutting carbon emissions, publishing the results, and funding mitigation and adaptation abroad.
An executive agreement, however, does entail some compromises in order to avoid the advice-and-consent requirement. The agreement will avoid using the word shall, which has a quasi-magical ability to make an international agreement legally binding and trigger advice and consent. Negotiators will also codify most of the specific obligations, such as the emissions reductions and dollar amounts, in accompanying COP decisions rather than in the primary document. There also will likely not be a specific enforcement mechanism, but that’s not much of a loss. Multilateral environmental agreements rarely carry formal sanctions.
“There’s no supreme court of the world,” says Jake Schmidt, director of the Natural Resources Defense Council's international program. “We’re all doing this together. Each country will ask its peers whether they’re fulfilling their obligations, creating a virtuous circle.”
(For a full explanation of what a climate change executive agreement can and cannot do without triggering the advice-and-consent requirement, read Arizona State University law professor Daniel Bodansky’s thorough consideration.)
WHAT'S AN ANGRY SENATOR TO DO?
In that context, take another look at Barrasso’s threat: “We need to send a message to the nations that are partners with the president in any final deal that, beyond a shadow of a doubt, the Senate will not stand by any agreement that binds the American people to targets or timetables on emissions without our advice and consent.”
First, the statement embodies the same approach the Senate took unsuccessfully in the Iran negotiations. In that case, Congress eventually kvetched the president into allowing a “vote of disapproval,” a watered-down review process that required an unobtainable 60 votes in opposition to stop the deal, rather than the 36 needed to block a traditional treaty. The Senate’s petulant letter also failed to cow Iran or influence the agreement in any way. With that background, Barrasso’s climate change threat seems like a boy crying wolf.
The statement also calls attention to how few options the Senate has. Barrasso doesn’t say the Senate will block the deal, but rather that the Senate “will not stand by” it. This is an admission that Congress’s only options are domestic in nature. They can attempt to withhold money the president earmarks for Green Climate Fund commitments. They can try to derail domestic programs to help the country meet its carbon reduction commitments, like the Clean Power Plan or the fuel efficiency standards. But in those efforts, they’re going to face large majorities that favor the president’s initiatives. Even in states whose attorneys general are suing to stop the Clean Power Plan, 61 percent of people favor the move to cut carbon pollution from power plants.
Strong presidents have favored executive agreements over treaties for decades, if not centuries. Treaties were twice as common as executive agreements in the early days of our republic. Since 1939, however, executive agreements have outnumbered treaties by nine to one. One reason is the administrative burden—the U.S. is now party to more than 5,000 international agreements, and Congress simply doesn’t have the time or the interest to review all of them. But many presidents just don’t want to deal with the world’s most deliberative body. Franklin Roosevelt cut the Senate out of the Yalta agreements to put Europe back together after World War II. John F. Kennedy made a backdoor agreement with the Soviets to end the Cuban missile crisis. When we face an existential threat, from either nuclear weapons or environmental chaos, successful presidents find a way to overcome an obstructive Congress.