This column by ACRU General Counsel Ken Klukowski was published June 1, 2017 by Breitbart.
President Donald Trump’s decision on Thursday to leave the Paris Agreement may have saved the federal government from an embarrassing court defeat, because there is a serious constitutional argument that the agreement was unconstitutional unless ratified by the Senate as a treaty.
Approximately 175 nations have signed the Paris Agreement, which was written under the auspices of the United Nations. Former Secretary of State John Kerry signed the Paris Agreement on behalf of President Barack Obama on April 22, 2016. It is indistinguishable from numerous UN treaties that the United States has formally joined.
Article II of the Constitution provides that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur.”
But if the Paris Agreement is a treaty, it must be both signed by the president and ratified by the required supermajority of the Senate. Otherwise, because Article VI says that treaties are part of the Supreme Law of the Land, it raises the disturbing possibility of a president exercising unchecked control over the nation regarding some important issue.
Recent years have seen the proliferation of executive agreements: formal agreements between the United States and other countries, defining the rights and obligations of all the signatories regarding their conduct with each other. Some of them appear to be treaties by another name.
Presidents have vast power under the Constitution to conduct foreign policy. As such, presidents have regularly entered into various sorts of arrangements with other nations. These executive agreements are commonplace.
It is an unresolved question of constitutional law how much power a president can exert through such agreements before he must get Senate approval. The Supreme Court has never invalidated a president’s signature by holding that a particular international compact was a treaty that cannot take legal effect until ratified by the Senate.
For example, in 1979, the Supreme Court held in Goldwater v. Carter that President Jimmy Carter had unilateral authority to withdraw the United States from the Sino-American Mutual Defense Treaty, rejecting a legal challenge brought by Senator Barry Goldwater and other congressional members.
But there is an important rule of constitutional law called the canon of antisuperfluity (or canon against surplusage), which despite its cumbersome name, means simply that every single word of the Constitution, or lesser laws, should be given legal effect unless their context clearly shows they have no meaning.
If a president can effectively enter into any agreement, including one that is really a treaty, without any Senate action, then the ratification language in Article II has no effect. That flies in the face of centuries of legal precedent, and it is disturbing to think that there are whole clauses in the Constitution that from which Americans cannot claim any protection.
The Paris Agreement would impact the U.S. economy to the tune of billions of dollars. American jobs hang in the balance, as does the survival of American companies.
There was talk among the accord’s supporters that the president should just declare it an executive agreement, and unilaterally implement it. But it cannot seriously be doubted that the Paris Agreement is a treaty. This treaty could not be imposed on the nation without the Senate’s approval.
Had President Trump not withdrawn from Paris this week, then once it went into force some company on the losing end of its effects could have sued, challenging the president’s power. As Trump continues to make good on his promise to appoint faithful originalists to the federal bench, he is creating a Supreme Court that may have eventually ruled against him.
Instead, Trump’s actions on Thursday mean that this important question of constitutional law will wait until some other day, when a future president may make a very different choice.
For the time being, the Constitution’s limits on presidential power when it comes to treaties will endure.