Obama’s Treaty-Making Powers Broader Than Recognized

It's Possible for Both Houses of Congress to Ratify a Treaty by Majority Vote

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Though arguably the most powerful man on the planet, U.S. President Barack Obama heads to Copenhagen later this month wearing handcuffs. The failure of Congress to pass domestic climate legislation has meant the president has had to advance slowly, lest he get ahead of lawmakers in the Capitol. After all according to the Constitution, international treaties must be ratified by 67 "yes" votes in the Senate.

Also still fresh in everybody’s mind is the 95-0 vote the Senate cast in opposition to US participation in the Kyoto Protocol, though that vote happened more than a decade ago.

But a working paper just posted at the Center for Climate Change Law at Columbia University’s law school takes a fresh look at the legal basis of the president’s independent power to enter into internationally binding commitments related to climate change, and it finds that the president has broader powers than commonly recognized. It also identifies an intriguing possibility backed by historical and legal precedent.

The president could submit a climate treaty for passage in both houses of Congress by a simple majority, rather than before the Senate alone for passage by a super-majority. In other words, it is possible for Obama to get a global deal ratified by securing a filibuster-proof 60 "yes" votes in the Senate, rather than 67.

"Every vote is blood," Michael Gerrard, executive director of the center, told SolveClimate. "And there’s a century’s worth of practice that provides the legal basis."

The working paper is a reassuring bit of legal sleuthing. Even if the U.S. passes domestic climate legislation, genuine concern remains that in the polarized politics inside the beltway, a global treaty could still fail to garner 67 votes needed for U.S. ratification. Now, with Obama announcing that he will travel to Copenhagen on the summit’s closing day, when deals are customarily finalized, the idea of needing seven fewer votes in the Senate to secure passage of an eventual treaty is a tantalizing prospect that could fortify his ambition.

The center’s paper opens a legal discussion with important political implications for the president to consider.

It points to a suite of broad presidential powers to conduct foreign affairs that could loosen his handcuffs as international climate negotiations proceed in Copenhagen and beyond. There’s a legal basis for Obama to exercise more global leadership in spite of a laggard Congress.

The Center for Climate Law was established in January to develop legal techniques for combating climate change. It maintains comprehensive charts of climate change law with links to decisions, briefs and memos — one for U.S. case law, and one for law in the rest of the world. It is "universally useful" for environmentalists, industry and government, Gerrard says.

At the same time, the center has an advocacy mission to help train the next generation of lawyers in a rapidly developing field that touches every aspect of the law — corporate and securities law to international trade, intellectual property and human rights law.

Gerrard agreed to direct the Center for Climate Change Law and teach at Columbia Law School after a 30-year career as an environmental lawyer with Arnold and Porter in New York. His Global Climate Change and U.S. Law, one of seven books he has published, is a leading work in its field.

Because his kids are out of college, Gerrard said, he agreed to "a massive voluntary income reduction" to make the move, though he still spends a day a week working for his former firm as a senior counselor. Seven undergraduates volunteer at the center, where the current budget permits Gerrard to have full-time help from only one paid staff member, Hannah Chang, the deputy director, who authored the working paper in time for Copenhagen.

Called International Executive Agreements on Climate Change, the paper is a legally dense, 20-page overview with 141 footnotes that examines what alternatives to an Article II Treaty the President has to advance international climate policy. Article II of the Constitution says 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."

Chang’s research found plenty of alternatives.

"… internationally binding agreements are frequently made via three different types of executive agreements, none of which require a super-majority Senate vote. Indeed, the United States is party to five times more executive agreements than treaties, and between 1939 and 1993, more than 90% of the international agreements concluded were executive agreements."

Matters that deal with the combined powers of Congress and the president — climate change is one of them — would require what are known as "Congressional-executive agreements." There are two types. One, known as "ex ante", allows the president to enter into an international agreement as a result of authorizing legislation. In essence, Congress passes a law and hands the baton to the president to take care of implementation.

The other type is the "ex post" Congressional-executive agreement, which is approved as domestic law after the president negotiates a deal. These are less common than the "ex ante" type, but as a matter of law, Chang writes,

"… the president can likely submit an agreement as either a congressional-executive agreement or an Article II treaty, because the two are regarded as legally interchangeable in nearly all instances."

Via e-mail, Chang provided a number of examples of international agreements that were ratified by majority of both chambers of Congress, in the "ex post" fashion: Uruguay Round Agreements Act, 1994; North American Free Trade Agreement Implementation Act, 1993; South African Democratic Transition Support Act of 1993; and
U.S.-Canada Free Trade Agreement Implementation Act of 1988.

Still, while the historical and legal precedent exists, the politics are murkier. Chang writes that the Senate could refuse to consider a joint resolution of Congress to approve a climate treaty, jealously guarding its Article II prerogative to approve treaties alone under the Constitution.

But Gerrard sees a greater opening.

"I’m not as pessimistic as Hannah [Chang] on this point," Gerrard said. "If you have 60 senators supporting you on this, I can see the president making the judgment to proceed. If, when the time comes, you only need 60 votes instead of 67, that’s a big deal."

The discussion of Congressional-Executive agreements is only a small part of the working paper. Chang cast a wider net to understand the full scope of power a president can wield — as chief executive and commander-in-chief — to receive ambassadors, and to take care that laws are fully implemented. She finds that existing federal legislation gives Obama broad and strong legal authority from Congress to enter into agreements that have a bearing on climate change.

For example, the UN Framework Convention on Climate Change was ratified by the Senate in 1992 and is legally binding as supreme law of the land.

The authority the treaty lends to “enter into a new international obligation” is important. It can be relied on, together with the president’s foreign affairs powers and his role as sole organ of communications between the U.S. and the international community, as convincing legal authority to enter into an executive agreement pursuant to UNFCCC obligations.

Similarly, the Convention on International Civil Aviation has obligated the U.S. to promulgate regulations — such as a ban on smoking on international flights — to harmonize domestic standards with UN standards. Chang argues that this Article II treaty provides safe legal grounds for the president to enter into agreements on aviation emissions standards. The Clean Air Act, too, provides the president with authority to bind the EPA to enforcing emissions standards once the agency concludes rulemakings on an emissions reduction target.

Chang concludes her paper with dry understatement:

"In light of the potential difficulty of getting an international climate agreement approved under the Article II process, however, these avenues for making binding international commitments may be helpful as interim or supplemental measures demonstrating U.S. willingness to take action in the climate change arena."

Obama has been careful thus far only to put a U.S. emissions target on the table that Congress has provisionally approved. The Waxman-Markey American Clean Energy and Security (ACES) bill, which passed the House in June, aims to reduce emissions 17 percent below 2005 levels by 2020. It is a weak target that translates into a 4 percent reduction below 1990 levels by 2020, far less than the EU’s 2020 reduction goal of 20 percent below 1990 levels. But the announcement of the U.S. target was enough to get both China and India to put modest proposals of their own on the negotiating table.

It was a global breakthrough, but another announcement at the end of last week indicated a rapid acceleration of further progress that gives Obama opportunity to break even more new ground. He has changed his schedule to attend Copenhagen talks, not at the beginning, but on the last day.

"Based on his conversations with other leaders and the progress that has already been made to give momentum to negotiations, the president believes that continued U.S. leadership can be most productive through his participation at the end of the Copenhagen conference on December 18th rather than on December 9th," the White House announced on Friday.

That sets the stage for unprecedented and high-level climate negotiations, and an opportunity for the U.S. to demonstrate global leadership rather than barely sufficient participation. Needing seven fewer Senate votes for eventual treaty ratification could give the president more breathing room to send climate talks into 2010 on a more aggressive emissions reduction trajectory.


See also:

Tripped Up: Report Reveals Rocky Road to Copenhagen

Making Sure Uncle Sam is Dressed for Copenhagen

Obama Going to Copenhagen with 2020 Greenhouse Gas Target

Road to Copenhagen: Audacious Leadership vs. Nattering Nabobs of Negativism

Road to Copenhagen: Managing Risk

(Official White House photo by Lawrence Jackson)