On January 20, beneath an imposing array of solar panels, President Biden issued an executive order declaring that the United States would rejoin the Paris agreement on climate change. The order stated in full: “I, Joseph R. Biden Jr., president of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said agreement and every article and clause thereof on behalf of the United States of America.”
This executive order raises issues of huge constitutional import. Does the president of the United States have the constitutional power to “accept” the Paris agreement by unilateral action? The correct answer is a decided no. The Paris agreement should be understood first and foremost as a treaty. As such, it should be governed by Article II, Section 2, Clause 2 of the Constitution, which requires treaty ratification by two-thirds of the senators present. President Obama knew that he did not have the votes in the Republican-controlled Senate to ratify the treaty in 2016—hence the initial entry into the agreement via executive order.
The simple question here is whether the obligation to secure Senate approval can be avoided by rebranding the treaty as an “agreement,” as was done in Obama’s and Biden’s executive orders.
The applicable law on this point is squarely against the president. Here are some recent examples. Writing in the Wall Street Journal, James Copland noted that Biden would be on thin ice if he revived the Obama administration’s dangerous and illegal practice of settling federal investigations by ordering direct payments to third parties, for that maneuver should be struck down as an evasion of Article I, Section 7 of the Constitution that provides “All Bills for raising Revenue shall originate in the House of Representatives,” subject to possible amendments in the Senate. Earlier in 2015, Judge Rosemary Collyer reached a similar conclusion in US House of Representatives v. Burwell, by holding the House had standing to challenge the expenditure of “billions of unappropriated dollars” to prop up insurance companies under the Affordable Care Act. That same anti-circumvention principle applies with equal force here. The executive order cannot require an explicit expenditure of funds to meet the Paris Agreement.
As in Burwell, the question of illegal circumvention raised by Biden’s executive order is subject to judicial review. Yet the implicit position of the Obama and Biden administrations is that there are no substantive requirements that necessarily require that any agreement be treated as a treaty. Their claim is that the president has the power to enter into an executive agreement on any topic whatsoever, subject to the key constraint that the next president of the United States can exit from it, just as Trump did with the Paris Treaty (as it should be properly called).
There is, however, one key difference between the Obama/Biden position and the Trump one. Trump did not seek to impose obligations on the United States, but only to negate obligations that should never have been incurred by executive order in the first place. It is utterly unacceptable to have oscillating policies between administrations when issues like climate change require that these international obligations be stable in the long run. That point was not lost on President John Kennedy when, after exhaustive negotiations, he signed a nuclear test-ban treaty with the Soviet Union in August 1963, which was approved by the Senate the following month by an 80-19 vote.
There is an obvious resemblance between that treaty and the Paris agreement. Both of them involved major commitments intended to govern the United States over the long term, and those commitments could be invoked domestically to influence legal and political obligations. Indeed, it is no surprise that Biden’s executive order locates climate policy “at the center of United States foreign policy and national security,” which suggests that both the House and Senate should have some say in the execution of the treaty. By way of example, re-entering the Paris agreement could bolster efforts to insist that pipelines be vetted even more thoroughly for their impacts on global warming both in administrative and judicial proceedings. As such, the Paris Treaty is not just idle virtue signaling, as is evidenced by its explicit financial commitments. Article 9 (1) states that “Developed country parties shall provide financial resources to assist developing country parties with respect to both mitigation and adaptation in continuation of their existing obligations under the convention.”
One powerful signal that Biden’s executive order is unlawful is its intention to bind his successor in office. Obama did just that when his team negotiated for a required three-year withdrawal period in the original Paris agreement. In my view, that time limitation should not have bound Trump domestically, but his abundance of caution —not his most obvious trait—led him to delay withdrawal for three years. The Paris Treaty still carries its prior long-term commitments. Biden’s statement that his administration seeks to generate “a carbon-pollution-free electricity sector no later than 2035” is an open admission that he intends his own executive order to bind future presidents and Congresses.
To be clear, common midlevel executive orders can and should bind the United States past the current president’s term—no one thinks that the United States Senate should be required to deliberate over and consent to a fifteen-year embassy lease negotiated with a foreign government, for example. Nor does anyone think that it is inappropriate to use executive orders to give guidance about the meanings of key treaties. But in both domestic and international affairs, there must be some clear limit on unilateral president lawmaking.
This issue has not received sufficient attention in the courts, so it is necessary to articulate some line between constitutional treaties and permissible executive orders. Perhaps the best way to frame the inquiry is by focusing on the twin tests of major impact and long duration. When both are present, the agreement is rightly a treaty. But if both are present in lesser degrees, there will be some serious questions about whether the agreement is a treaty or not. Notwithstanding obvious cases of ambiguity, the Paris Agreement clearly falls on the treaty side of the line. The point becomes painfully clear by looking at Biden’s specific agenda items in the executive order. The first is to “immediately begin the process of developing [a] nationally determined contribution under the Paris Agreement”—that is, an intended level of carbon dioxide reduction. He proposes to implement this program through “analysis and input from relevant executive departments and agencies, as well as appropriate outreach to domestic stakeholders.” Missing from this list is any mention of the role for Congress.
Biden then proposes to develop a “climate finance plan” that relies on the secretaries of state and treasury, along with a host of international-facing agencies, to steer foreign nations away from high-carbon investments. He has also created a new Office of Domestic Climate Policy to coordinate his domestic and foreign actions on climate policy. Again, Congress is entirely excluded from these processes. Biden then vows to use the federal government’s buying power, real property, and asset management capabilities to help “catalyze private sector investment into, and accelerate the advancement of America’s industrial capacity to supply, domestic clean energy, buildings, vehicles, and other necessary products and materials.”
In other words, he intends to initiate a grand industrial policy without putting forward any defense of its desirability. Previous government failures in this area—think Solyndra—readily counsel against such a brazen embrace of centralized planning. There are other notable initiatives in Biden’s executive order, including the creation of a Civilian Climate Corps to be formulated “within existing appropriations.” And he continues in the same vein when he seeks, through executive fiat, to improve water and air quality while simultaneously creating “well-paying union jobs and more opportunities for women and people of color in hard-hit communities.”
But don’t take all this from me. Last week, the New York Times wrote a candid editorial with the provocative title “Ease up the Executive Actions, Joe,” which insisted that executive orders are “no way to make law.” Even with the Democrats’ fragile control of Congress, it cautions that these directives “are a flawed substitute for legislation.” The Times editorial brought forth a rebuke from Biden’s communications director, Kate Bedingfield, suggesting that Biden still has a tin ear to the problem. But the stakes are still high. In the case of the Paris Treaty, the approach of the Biden administration is not just flawed but deeply unconstitutional.