President Obama’s deal with Iran is not even called an “agreement.” Technically, it’s a “joint comprehensive plan of action,” a mushy term adopted precisely to avoid the implication that it’s a formally binding agreement. In truth, it’s more like the sort of coordinated “plan of action” that desperate relatives negotiate with hostage-takers. Sometimes it works and the hostages come out alive. But lawyers are never required when negotiating this sort of arrangement. Law has nothing to do with it.
Congress may vote its disapproval but probably can’t muster the votes to stop the president from making the concessions he’s agreed to in order to ransom his promise to stop Iran from getting nuclear weapons—at least for now. Already supporters of the joint plan warn against undercutting the president in foreign affairs and affronting our European allies, who have made their own parallel commitments to Iran. Anyway, Obama has authority under existing law to waive most sanctions and can’t easily be stopped from doing so. Congress will likely remain peripheral to the outcome.
Could we at least insist that Congress be given a more serious role in future negotiations—before the president makes new “commitments” that jeopardize our national interests? In fact, the Obama administration is quietly preparing to do a new version of the Iran deal in negotiations on climate change. The administration has announced that it will “commit” the United States to reducing U.S. carbon emissions by 28 percent over the next decade (from a 2005 baseline)—without any direct endorsement of this commitment by Congress.
It may not have such high stakes as the Iran deal, but the climate commitment is not a small matter. NERA, the respected economic research firm, estimates the cost of the Obama “Climate Action Plan” at nearly half a trillion dollars over a decade. In effect, the administration is proposing to relieve hundreds of billions of dollars in sanctions on Iran—and then impose larger burdens on the American economy in the same interval. And it proposes to pursue both sides of this global redistribution of wealth through the same extraconstitutional evasions.
When President Clinton negotiated a similar promise at the Kyoto conference in 1997, the Senate balked and the resulting treaty was never ratified. The Obama White House has been telling journalists that a new agreement endorsing the U.S. commitment will be structured as a “political commitment”—not requiring approval by two-thirds of the Senate like a regular treaty, or even a majority in each house like a standard trade agreement. Why didn’t Al Gore think of that?
A conference in Paris at the end of 2015 is supposed to settle the details. Environmental advocacy groups have already started to disseminate policy papers explaining how President Obama can embrace this agreement without any form of constitutional process. The most careful argument is by legal scholar Daniel Bodansky, released by the Center for Climate and Energy Solutions in May. Bodansky argues that if U.S. offers for emission reductions in Paris are couched as “a political rather than a legal -commitment, then this would not limit the president’s authority to conclude the agreement acting alone.”
Really? It’s true that past presidents have concluded negotiations with vague announcements that might be described as “political commitments.” So, for example, without consulting Congress, President Nixon issued a joint statement with Chinese leaders, sketching the framework for future relations, at the 1972 summit in Shanghai. More recently, President George W. Bush bypassed Congress when he signed a “Strategic Framework Agreement” with Iraqi leaders at a Baghdad summit in 2008.
Among Democrats who objected to this act of presidential unilateralism was Senator Barack Obama. Yet President Obama invoked this same agreement only last April at a meeting with the new Iraqi prime minister in Washington. In Obama’s view, it doesn’t commit the United States to do much of anything to help protect Iraq from invasion by maniacal forces like ISIS.
It’s a big leap, however, from vague statements of shared principles to a detailed blueprint for environmental regulation. If it’s anything like its predecessor treaty negotiated in Kyoto, the Paris agreement is likely to be extremely long and intricate. It won’t deal with diplomatic postures toward foreign governments but implementing commitments that impose very sizable costs and constraints on American business and consumers. And the obligation is supposed to run for at least a decade—that is, throughout the next two presidential terms.
Would a future president be bound by this “commitment”? Surely not, as a strict matter of legality. But there is a real question whether a future president would be comfortable repudiating a global agreement that was years in the making—and will surely be touted as necessary to “save the planet.” In effect, Obama would be leaving his successor with the awkward choice of maintaining Obama’s “commitments” or undermining American credibility. A Republican successor—perhaps especially a Republican successor—might worry quite a bit about adding to the current perception of the United States as an unreliable partner.
Perhaps it will matter how much has already been put in place. Here the portents are again uncertain. It is true that the EPA already has some authority under the Clean Air Act to impose constraints on carbon emissions. By a narrow majority, the Supreme Court even ruled in 2007 that the EPA would violate its legal obligations if it did not consider some further controls on carbon emissions that might alleviate the challenge of climate change (Massachusetts v. EPA). But some response does not mean whatever the president promises—on his own—at some international conference.
The current framework for air pollution control was largely enacted in 1990—before Congress had focused on climate change. Proposals to respond to this concern in the Obama years have received much attention in Congress but no legislative endorsement. The administration’s elaborate Climate Action Plan will impose severe controls on coal use. Even if all of EPA’s current proposals are implemented, additional regulatory measures will be needed to reach the goals in Obama’s “commitment” for the next decade.
The Climate Action Plan may not have an easy time in the courts. At the end of June, the Supreme Court struck down an EPA regulation on power plant emissions with traces of mercury (Michigan v. EPA). The Court’s majority protested that the cost of compliance to utility companies would run to some $10 billion per year, while direct benefits from limiting exposure to mercury vapors were calculated (by EPA) at $4 to $6 million per year (less than .05 percent of the cost). Neither the dissenters nor the government’s own briefs bothered to note that the Obama administration had signed an international convention in 2013 mandating strict controls on mercury. Maybe the Minamata Convention was discounted because too few other countries have subscribed to it or because it was not a treaty submitted to the Senate. Perhaps it was just too obscure.
But environmentalists will be sure to publicize the Paris Protocol on Climate Change (or Paris Commitments or whatever title the conference bestows on its bloated text). The Obama administration will hail it as a signature achievement, a further legacy in foreign affairs. Will the Supreme Court have the nerve to question its application in American law? Or will the chief justice regard it as so much like the Affordable Care Act that domestic statutes must be reinterpreted to preserve it? This year’s ACA ruling in King v. Burwell—“jiggery pokery,” as Justice Scalia called the Roberts opinion—doesn’t inspire confidence in the resoluteness of the Roberts Court.
One thing is for sure: President Obama won’t be deflected from making this commitment in Paris. And as with the Iran deal, Congress won’t be able to derail it unless it can mobilize veto-proof majorities, which seems most unlikely in the face of hysterical campaigns by environmental activists, heralded by mainstream media.
The climate commitment will have one other important thing in common with the Iranian nuclear deal. It won’t actually deal with the problem, because it won’t actually commit other countries to act as environmentalists would like. When the first climate change treaty was negotiated in 1992, the Framework Convention on Climate Change, environmentalists insisted that concentrations of carbon in the atmosphere were already driving a warming trend.
Under the Kyoto Protocol, all the commitments for reducing carbon emissions were made by developed countries—and even some of them did not deliver on their promises. The net reductions were offset by steady growth in emissions from developing countries, which made no commitments. They are not promising more today.
It was hailed as a breakthrough when China promised President Obama, earlier this year, that it might consider a commitment to reduce carbon emissions in the next round of negotiations—a decade from now. We’ll need a succession of agreements and a lot more vigorous enforcement to make much difference in actual carbon-dioxide concentrations in the atmosphere in the last decades of this century, when warming is otherwise projected to have the most severe effects.
In the meantime, the Paris accord will be a monument to good intentions—which are not backed by political support or much restrained by law. It is a perfect project for the European Union, the main global sponsor of the effort. But even the Europeans may be distracted by more immediate threats. Like the Iranian nuclear deal, the Paris conference will simply be a launch point for negotiations and recriminations for years to come.
What can the Senate—or the House and Senate—do now to limit the damage? Either chamber or both might pass a nonbinding resolution clarifying that Congress will not feel bound to support a climate commitment that has not been submitted to it. As an expression of opinion, that sort of resolution would not be subject to veto. The resolution would send a signal to foreign countries not to rely on Obama’s promises. It might also send a signal to the courts not to take Obama’s commitments too seriously.
Expecting congressional majorities to take that action may be expecting too much, however. It will be controversial, and there will be pleas not to undercut the president’s bargaining power in Paris or undermine the president’s international standing after the bruising debate on the Iran deal.
Perhaps there is an easier way. Willing members of Congress could post their own letter to the Paris conference, alerting other nations that the United States has a Constitution that does not give total power to presidents to bind the national legislature to their favored schemes.
Don’t you still have the stationery for this kind of letter, Senator Cotton?
Jeremy Rabkin is professor of law at George Mason University.
