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Joe Biden has made no secret of his intention to get us back into the Paris climate accords. It’s high up there on his laundry list of things to do upon taking office—even though the United States leads the world in reducing carbon emissions, despite not being a part of it anymore.
But the truth is, the United States was never actually legally a part of the Paris climate accords. The United Nations describes it as “a legally binding international treaty on climate change,” and it also meets the definition of a treaty under the Vienna Convention on the Law of Treaties, which states that a treaty is “an international agreement concluded between [two or more] States in written form and governed by international law.”
And what does the United States Constitution say about treaties?
It says that 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.” It’s right there in Article II, Section 2, Clause 2.
Yes, Obama unilaterally signed the United States into the treaty in the final months of his presidency, which was a very telling move. Nearly 200 countries signed the treaty on December 12, 2015, but Obama didn’t sign it until nearly a year later, during the final stretch of the 2016 presidential election. Obama, who fancied himself a constitutional scholar, never even attempted to go to the Senate for ratification. Instead, he avoided referring to the agreement as a treaty publicly, in order to argue that Senate ratification wasn’t constitutionally mandated.
Obama’s move was clearly designed to benefit him politically while also punting the legal ramifications of the unratified treaty to another president. As such, less than six months into his presidency, Trump announced, to much fury from the left, that the United States would no longer be a part of the Paris climate accords—negating the need for a potential dispute over the legality of the treaty.
Just as easily as Barack Obama got us into the treaty, President Trump was able to get us out. This back-and-forth will continue ad infinitum each time the presidency changes parties. This is why the Founders established a system where neither the top executive nor the Senate can enter into a treaty without the consent of the other.
“The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States,” wrote Alexander Hamilton in Federalist #75. “To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations.”
Whereas the election of Donald Trump, whose opposition to the Paris climate treaty was well-established, precluded the need for any legal battles over the legitimacy of the United States’ entry into the treaty, Biden’s promise to get us back into it unilaterally will bring this issue back to the forefront, and I suspect confrontation is inevitable. Senator Ted Cruz, for example, previously called on Trump to send the Paris climate treaty to the Senate for a vote—knowing full well it would not be ratified.
With any luck, the moment Biden illegally gets us back into the Paris climate treaty, Republicans will mount a legal challenge to it, and the Supreme Court will rightfully strike it down.
P.S. Everything above is also applicable to the Iran nuclear deal, which Biden also wants to get the United States back into.