Executive Power

Behind the NYT Climate Accord Story

By Jack Goldsmith
Wednesday, August 27, 2014, 10:50 AM

I am no expert at all on climate change.  With that large caveat, I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to---probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled---at least not legally---to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.”

But that is only the first layer of complexity in Davenport’s story.  She also writes:

American negotiators are . . . homing in on a hybrid agreement---a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

The 1992 treaty is the United Nations Framework Convention on Climate Change, which the United States has ratified.  The President knows he cannot get the 2/3 of the Senate to consent to update this treaty or to consent to a new emissions-reduction treaty.  And the President wants to do as much as he can on his own authority to forge global emissions reduction.  So the President appears set to enter into an Executive agreement that would update the treaty in ways that (might) pressure other nations to reduce their emissions and that might be the basis for further unilateral presidential actions to reduce emissions.  The President has some power, of a very uncertain nature and scope, to enter in to legally binding executive agreements pursuant to treaties (i.e. a new legally binding international agreement joined via the President’s delegated power from the original treaty). Whether the new agreement the President has in mind would be legally binding in some of its aspects is entirely unclear---the story largely implies not, but the devil would be in the details.

One reason that I think the President might have more than a mere political commitment in mind is this:

Countries would be legally required to enact domestic climate change policies---but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)

The Obama administration understands all this. As do the other nations with which it is negotiating. Its main aims here thus seem to be twofold: (1) Do as much as possible to seem to commit the United States to reduce emissions, with the aim of forcing or encouraging other nations to assume obligations to reduce emissions, and (2) make clear to domestic political audiences and future legacy-makers that the President is taking a bold and controversial step to reduce global emissions. I am not sure whether the administration will succeed on the first aim, but on the second one it will likely succeed---because of the Republicans’ reaction. For even though the President’s international efforts will have no domestic legal effect, the Republicans, especially in the Senate, and especially ones in close elections in states harmed economically by emissions-reduction commitments (i.e. Senator McConnell), are likely to make the President’s initiative seem like a very big deal. That in turn could have an impact on the degree to which the bases in both political parties turn out to vote in November. In short, the biggest domestic impact of the President’s international emissions reduction initiative is likely to be in the mid-term elections.