Intentionally Misleading or Totally Ignorant?

I saw an odd post over at The Blackboard today. I want to discuss some of what I saw in it. Given my recent history over there and the... questionable nature of what is being said at that site of late, I thought it'd be best to make a new post for this.

The topic of the post was an article written by Paul Voosen, in which he discusses what Donald Trump may or may not be able to do about climate change policies as President of the United States. This is an interesting topic. Unfortunately, the response to it at The Blackboard is quite poor. I will try to give a better one.

Before I begin, I should point out I rarely discuss global warming policy because I am apathetic about it. I am neither for nor against taking action to combat global warming. My interest in this discussion is purely academic. I decided to write this post because I saw the owner of The Blackboard, lucia, write a comment which said:

All I know: We did not ratify. Voosen using the term “ratify” is either intentionally misleading or totally ignorant. The US is not bound to it. I actually think Trump should make that clear sooner rather than later. Little good can come from the fiction that our president can bind us to treaties without Senate ratification.

This comment seemed to be similar to a number I've experienced at that site. Instead of making a fleshed out argument, the person just makes a claim, repeatedly insists the claim is true and acts as though that's reasonable because it is just so obvious they are correct. The post itself begins with much the same, quoting the Voosen article and responding.

There are multiple paths Trump can take to undermining the U.S. ratification of the deal, which saw the country pledge to cut greenhouse gas emissions by up to 28% below 2005 levels by 2025. Under its requirements—already agreed to by the United States—Trump could not immediately withdraw from the deal, but he could do so by 2020.

We didn’t “ratify” anything. The “country” didn’t pledge anything. Obama as executive, took a unilateral action which is not the same as the US ratifying anything because under our constitution, the president does not have the power to formally bind us to this sort of stuff. All Trump needs to do is to say this. Then if anyone disagrees, they can try to lodge a suit in courts, slog through to SCOTUS and see if they can get SCOTUS to agree that a president (i.e. Obama) can formally bind the country to an “agreement” without ratification by the Senate using the ‘magic’ of not using the word “treaty” to describe “a formally concluded and ratified agreement between countries”.

The fact is: The US has not ratified the “formal agreement between countries” called the Paris Climate Accord. Sorry, but no.

Now, I'm not sure why lucia says there was an agreement "called the Paris Climate Accord." The name of this international agreement is the "Paris Agreement." It is sometimes called the "Paris climate accord" as it is a climate accord, but that doesn't make it its name. That error is probably unimportant, but I feel it is worth clarifying basic facts.

Another point of confusion is lucia offers two quotations: "a formally concluded and ratified agreement between countries” and “formal agreement between countries” without saying where they came from. I presume she offers them as definitions of the word "treaty." That is, to use lucia's words, "intentionally misleading or totally ignorant."

I'll explain why, but before I do, I want to point out the United Nations lists the United States as having ratified the Paris Agreement. Hundreds of news articles say the United States has ratified the Paris Agreement. The White House says the United States has ratified the Paris Agreement. Dozens of individual countries say the United States has ratified the Paris Agreement.

It may be that all of the people, groups and countries saying this are liars. It may be that none of them have the slightest clue what they're talking about. Or, it may be that when it comes to defining with is a "treaty" under United States law, we need to do more than look in a dictionary. For instance, we might need to look at actual laws or court rulings. One informative ruling is the Supreme Court decision in American Insurance Ass'n v. Garamendi (2003), where the court observed:

At a more specific level, our cases have recognized that the President has authority to make "executive agreements" with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic. See Dames & Moore v. Regan, 453 U. S. 654, 679, 682-683 (1981); United States v. Pink, 315 U. S. 203, 223, 230 (1942); United States v. Belmont, 301 U. S. 324, 330-331 (1937); see also L. Henkin, Foreign Affairs and the United States Constitution 219, 496, n. 163 (2d ed. 1996) ("Presidents from Washington to Clinton have made many thousands of agreements ... on matters running the gamut of U. S. foreign relations").

The subject and much of the substance of the court ruling are different from the current topic, but as the court makes clear, the President of the United States can make "executive agreements" without the Senate ratifying or approve of them. This is a basic point anyone familiar with the president's power in negotiations should know. lucia doesn't mention it. She doesn't even allude to it. That "is either intentionally misleading or totally ignorant."

Now, the fact a president can enter into executive agreements based solely upon his own authority does not necessarily mean Barack Obama could ratify the Paris Agreement. If the Paris Agreement is considered an "executive agreement," he could. If the Paris Agreement is considered a "treaty," he could not.

lucia does nothing to examine this distinction. Other people have though. One person claiming this is a treaty under United States law rather than an executive agreement makes the issue clear:

Is the Climate Change Agreement adopted in Paris by the 21st Conference of the Parties (COP21) a treaty? In other words, is it the type of international agreement to which the United States is a party only if the U.S. Senate ratifies it?

It is indeed, as this post will show.

Though I will leave it to individuals to decide whether or not they agree with his analysis. Similarly, here is a person claiming the Paris Agreement is not a treaty but rather an executive agreement, again making it clear what the central issue is:

The President’s authority to enter into internationally legally binding agreements without Congressional participation or Senate advice and consent dates to the earliest years of the Republic. More than 90% of binding international agreements governed by international law are concluded by the United States without Senate advice and consent, known as “executive agreements.” As the President must act consistently with the Constitution and laws of the United States, every executive agreement must find legal support in the form of one or more of the following: (1) Congressional legislation; (2) an article II, section 2 treaty; or (3) the President’s own Constitutional powers.

I'm not going to examine the legal arguments to try to tell you which side of this argument is correct. I don't know enough to be sure, but I suspect people could reasonably take either position. What they can't do is make claims about what can and cannot be done without even acknowledging this issue exists. Doing so would be "either intentionally misleading or totally ignorant."

So while lucia says:

The fact is: The US has not ratified the “formal agreement between countries” called the Paris Climate Accord. Sorry, but no.

What she is effectively doing is dismissing the legal position and argument of the current federal government, accepted by dozens of countries and the United Nations as being adequate then stating it is fact her dismissal is correct without offering the slightest basis for it. It's pretty messed up. It's also messed up for her to write:

We didn’t “ratify” anything. The “country” didn’t pledge anything. Obama as executive, took a unilateral action which is not the same as the US ratifying anything because under our constitution, the president does not have the power to formally bind us to this sort of stuff. All Trump needs to do is to say this. Then if anyone disagrees, they can try to lodge a suit in courts, slog through to SCOTUS and see if they can get SCOTUS to agree that a president (i.e. Obama) can formally bind the country to an “agreement” without ratification by the Senate using the ‘magic’ of not using the word “treaty” to describe “a formally concluded and ratified agreement between countries”.

That's not how it works. The federal government has accepted that the Paris agreement is a an executive agreement, not a treaty, under United States law. A president cannot simply dismiss that decision and switch the country's position to, "Sike! it was really a treaty all along so we're not going to hold up our end of the agreement." Presidents don't get to re-interpret the standing of legal documents willy-nilly. One could perhaps argue the Paris Agreement was never an executive agreement but always a treaty, but that would be a matter the courts would have to decide.

Moreover, even if Trump could reject the Paris Agreement like this, it would be hugely embarrassing. If the United States backs out of an agreement because one president decides to re-classify the former administration's "executive agreement" as a "treaty" to trash it, every country in the world will worry about every executive agreement they might enter into with the United States from then on. The damage to the nation's credibility would be immense.

That's pretty much the sum of what there is to say about that post over at The Blackboard. The post uses empty rhetoric like:

As it happens, the constitutional issue is sufficiently important that Trump should simply announce that the “agreement” would represent a treaty. That treaty has not been ratified. And so we are not bound by it. Period. I would say this for any treaty a president tries to bind the US to in such an unconstitutional manner.

While managing to completely fail to discuss any of the legal issues which underpin this topic. If you actually examine Voosen's article, it is quite good. Voosen's description of what Donald Trump could do about the Paris Agreement is spot on:

There are multiple paths Trump can take to undermining the U.S. ratification of the deal, which saw the country pledge to cut greenhouse gas emissions by up to 28% below 2005 levels by 2025. Under its requirements—already agreed to by the United States—Trump could not immediately withdraw from the deal, but he could do so by 2020.

There's a more drastic option as well, says David Victor, an expert on international climate policy at the University of California, San Diego. Trump could have the United States immediately submit a written notice to the Secretary General of the United Nations that it is leaving the U.N. Framework Convention on Climate Change, which includes nearly all the world's nations among its membership and coordinates international deals on climate. After a year, the departure would take effect. Victor suspects this as the most likely step. "It would be the most symbolic antiestablishment move," he says.

More simply, "They could just fail to deliver on U.S. commitment and reverse strong leadership at the international level that the Obama administration provided," says Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.

As it his commentary on why Trump would face difficulty modifying EPA regulations:

As Trump's team takes over, however, they may find it more difficult than it might seem to change the power plan and other climate regulations that have already gone through lengthy review and release processes. There's much more to it than simply issuing an executive order, says Jody Freeman, director of the Environmental Law Program at Harvard Law School.

"You can't rescind a rule with the stroke of a pen," she says. "They'd have to engage a focused effort to undo regulations and replace them with something else."

Any changes to regulations that have existed for some time and moved into implementation, like fuel-efficiency standards for cars and trucks or rules controlling the carbon dioxide emissions from new power plants, would certainly face legal challenge from environmental groups, some state governments, and even industry groups seeking certainty or to protect investments. And courts aren't likely to look favorably on efforts to change regulations without sound scientific or technical reasoning, Freeman says.

And he even highlights how getting Congress, even one controlled by Republicans, to make significant changes to the EPA could be difficult:

More drastic changes at EPA would require collaboration with House and Senate Republicans, as much of the agency's budget and regulations stem from legal requirements. It's possible that Congress could slash these laws and the agency's budget, as Trump and some lawmakers have promised. But it's far from certain that Republicans would be united enough to go through with such cuts, especially given the potential of a Democratic filibuster in the Senate.

Put simply, this is a good article. The people trashing it at The Blackboard with comments like:

Lucia,
I think the nutty talk about the USA ‘being bound’ by Obama’s signature reflects a mix of honest lack of knowledge of the US Constitution (and interpretation by the Supreme Court), and a willful contempt by many global warming advocates (who do actually understand the requirement for ratification by the Senate) for both the Constitution and the rule of law. These folks appear to think global warming is ‘too important’ to have the Constitution or the rule of law interfere with their desired environmental policies.

simply don't know what they're talking about. They apparently don't even know enough to understand that they ought to be discussing whether the Paris Agreement is a "treaty" or "executive agreement," one of the most basic points underpinning the entire subject. Even worse, despite being "totally ignorant," they are happy to make bold pronouncements and ridicule people.

Should the Paris Agreement legally be considered a treaty? Should it legally be considered an executive agreement? I don't know. What I do know is Paul Voosen's article is a good one anyone interested in what Donald Trump might do about climate issues as president should read. What I do know is the discussion at The Blackboard is completely uninformed and stupid What I do know is Donald Trump being elected President of the United States should embarrass every person living in the country, if not the world.

Yeah, sorry. I had to throw that last one in there.

40 comments

  1. Yes a treaty has higher force than an executive agreement. Other countries should be aware of this, and are aware of it.
    Trump could just announce he is withdrawing without any difficulty, since it is just an executive agreement.
    I would think withdrawing from UNFCCC would be more embarrassing.
    I'm more interested in the issue of the treaty's activation, taking place at 55% of emissions.
    Without the US, it appears the total is just short of that.

  2. Brandon, due to Obama's famous threat to use his "pen and his phone" a lot of experts have been asked to clarify the bounds of US presidential power. From what I've read (sorry I don't have the citing) the presidential executive orders are all revocable by subsequent presidential orders. They may also be revoked by legislation, which of course would need to be a veto proof super-majority. Or, it could be revoked by the courts after evaluating whether the order is constitutional and an issue in which the congress has not already made their opposition clear.

    When the former president has committed the US to a contract there is an entangling issue of equity as to whether the contract anticipated void-ability upon the change of regimes. In the case of the Iran deal I distinctly remember members of the senate making announcements warning to Iran that the agreement would be voidable. And I remember Obama scolding them for it, accusing them of being worse than the Iranian hardliner Supreme Council.

    Bottom line: anything the president does on presidential authority alone can be revoked by presidential authority. Any item that is passed by a legislature can be revoked by the legislature. Any item passed subject to a super-majority must have a super-majority to revoke.

  3. The constitution's requirement for senate ratification of treaties negotiated by the president was certainly intended to provide the support behind such an agreement to insure to the foreign party of its irrevocably. Its too bad that President Obama, despite being a constitutional lawyer, ignored the document's intent in so many instances, including disrespecting Congress's power of the purse, avoiding congressional consent by doing recess appointments and passing a tax that did not originate in the House of Representatives (on the ACA) by not calling it a tax.

    I will readily join you in demanding that Trump do a better job of respecting our laws.

  4. MikeN:

    Yes a treaty has higher force than an executive agreement.

    No it doesn't. There are more limitations on what an executive agreement can do as Congress has far fuller authority than the President on such matters, but if an executive agreement and treaty addressed the same thing, they would have the same amount of force. There is no difference in effect between the two. The only difference is how they come into existence.*

    Other countries should be aware of this, and are aware of it.
    Trump could just announce he is withdrawing without any difficulty, since it is just an executive agreement.
    I would think withdrawing from UNFCCC would be more embarrassing.

    Trump could certainly withdraw from the Paris Agreement. There would be some embarrassment, as there is any time a country ratifies then withdraws from an agreement, but it wouldn't be anything too major.

    What would be major would be Trump declaring Obama effectively lied when he negotiated an "executive agreement" to ratify the Paris Agreement when in reality what Trump did was make a treaty, something he has no legal authority to do. That is what lucia suggested Trump do. That would be a colossal embarrassment. It would be Trump saying:

    Yeah, our nation's last president didn't have the authority to make the negotiations he made. He just acted illegally. But hey, I hope you still trust us to negotiate with you in the future

    Not only would that be a colossal embarrassment, it would be pretty stupid. Trump doesn't have to declare this a treaty to withdraw from it. lucia might think he should, but a much better idea would be to say, "Obama had the authority to negotiate this executive agreement, but the deal is a bad one for the United States so we're withdrawing from it." I suspect if lucia had any idea what she was talking about, she'd have recommended this solution.

    *Interestingly, revoking a treaty is no more difficult than revoking an executive agreement. Or at least, that's the current belief of scholars who've examined this issue. The Constitution only restricts the president's authority to create treaties, not to revoke them. That means a president can scrap any treaty he wants without any input from Congress. It's kind of weird.

  5. Ron Graf:

    Brandon, due to Obama's famous threat to use his "pen and his phone" a lot of experts have been asked to clarify the bounds of US presidential power.

    I've noticed most of these experts fail to point out Obama has issued fewer executive orders than any president in 1963 other than George Bush Sr, a president who only served for half as long as Obama. In fact, the only presidents since 1900 who have issued fewer executive orders than Obama are Bush Sr. (who only served four years), Gerald Ford (who only served four years) and John Kennedy (who only served three years).

    I know raw numbers aren't everything, but it is pretty remarkable Obama has such a reputation for using executive orders when basically he's used fewer of them than any president since the 1800s.

    From what I've read (sorry I don't have the citing) the presidential executive orders are all revocable by subsequent presidential orders. They may also be revoked by legislation, which of course would need to be a veto proof super-majority. Or, it could be revoked by the courts after evaluating whether the order is constitutional and an issue in which the congress has not already made their opposition clear.

    This is largely true, but there are nuances in that executive orders can create rules and regulations which give citizens of the United States standing to challenge them and changes to them in court. There are a number of executive orders Trump would have a hard time repealing as any such effort would result in legal battles.

    The constitution's requirement for senate ratification of treaties negotiated by the president was certainly intended to provide the support behind such an agreement to insure to the foreign party of its irrevocably.

    No it wasn't. As I pointed out to MikeN, the president has always had the ability to revoke any treaty he wants. He has never needed Congress's approval to do so. The Constitution was explicitly written to restrict the President's authority to enter into treaties but not his authority to withdraw from them.

    Its too bad that President Obama, despite being a constitutional lawyer, ignored the document's intent in so many instances, including disrespecting Congress's power of the purse, avoiding congressional consent by doing recess appointments and passing a tax that did not originate in the House of Representatives (on the ACA) by not calling it a tax.

    I will readily join you in demanding that Trump do a better job of respecting our laws.

    My experience is most people's view of the "intent" of the Constitution has a striking resemblance to their views of what should and should not be done. It's like how I'm always amazed at how many religious people find their god's rules to fall exactly in line with their personal view of how things should be. It makes me skeptical.

    Given that, I use a simple litmus test. Can the person about constitutional abuse tell me what Utah v. Evans (2002) is or what Article 1, Section 2, Clause 3 of the Constitution covers? If not, I don't take them seriously. Why should I? It's the clearest case of constitutional abuse in United States history, with the Supreme Court okaying legal action directly contradictory to what the Constitution explicitly requires.

    I figure anyone who truly cares about protecting the Constitution would know about the clearest and most direct abuse of it. I figure those who don't are just complaining for political reasons. Maybe I'm wrong. Maybe they're just lazy and "totally ignorant."

  6. That was weird. I had to edit my last comment to fix a blockquote tag even though the tag itself was fine. Apparently a stray less than sign broke one of the closing blockquote tags. I've never seen that before.

  7. Brandon, being a constitutional scholar shouldn't preclude one from accepting common sense arguments from others regarding constitutional intent. If you disagree that the 2/3 senate ratification requirement was not intended to give treaties both a hurdle of entry and of exit in order to provide consent of the states, as well as continuity of policy between executives, I would like to hear your alternative reasoning.

    You say: "As I pointed out to MikeN, the president has always had the ability to revoke any treaty he wants. He has never needed Congress's approval to do so. The Constitution was explicitly written to restrict the President's authority to enter into treaties but not his authority to withdraw from them."

    The constitution is silent on revoking treaties, but since common sense (and established parliamentary protocol) would require symmetry in required authority for entry versus exit I would say common sense falls to my position, not yours.

  8. In thinking more about it, if time were of the essence the President could break a treaty as commander and chief. If urgency could not be demonstrated, but just a change of policy, then the senate would have to give consent.

  9. "Voosen's description of what Donald Trump could do about the Paris Agreement is spot on..." Doesn't seem so. As everyone has been saying, Trump can simply say that Obama's Agreement is no longer binding - not one of the choices Voosen gave. And it wouldn't take "a year" to go into effect; that would be the end of it.
    As wikipedia says (https://en.wikipedia.org/wiki/Executive_agreement), "Executive agreements are considered politically binding to distinguish them from treaties which are legally binding."
    So I don't really see what you're complaining about, unless it's the fact that Lucia et al didn't use the words "executive agreement". A treaty is the only thing that could impede Trump, and Voosen doesn't seem to know that.

    I don't know which experts you consulted, but it seems very unreasonable that a president can unilaterally abrogate a treaty. As in most things, I prefer the experts who stick with the obvious meaning of the words in the Constitution: Congress must okay treaties. http://www.nytimes.com/2001/08/29/opinion/treaties-don-t-belong-to-presidents-alone.html

  10. Ron Graf:

    Brandon, being a constitutional scholar shouldn't preclude one from accepting common sense arguments from others regarding constitutional intent.

    My experience is "common sense" is just a codeword for, "This is obviously how it shoud work, because I'm right." I find it confusing you are willing to apply "common sense" reinterpretation of explicit statement in the Constitution while complaining about abuses of the Constitution.

    The constitution is silent on revoking treaties, but since common sense (and established parliamentary protocol) would require symmetry in required authority for entry versus exit I would say common sense falls to my position, not yours.

    I would say "common sense" is a useless sentiment in disagreements because it contributes no information or substance. As for "established parliamentary protocol," there is no such protocol siding with your position. The situation isn't even symmetric because revoking a treaty restores rather than limits the nation's freedoms and sovereignty. It is "common sense" that it should be more difficult to impose restrictions than to lift them.

    In thinking more about it, if time were of the essence the President could break a treaty as commander and chief. If urgency could not be demonstrated, but just a change of policy, then the senate would have to give consent.

    This might be your preferred rule, but there is absolutely nothing in the Constitution or any case law on which to base it.

  11. MikeR:

    "Voosen's description of what Donald Trump could do about the Paris Agreement is spot on..." Doesn't seem so. As everyone has been saying, Trump can simply say that Obama's Agreement is no longer binding - not one of the choices Voosen gave. And it wouldn't take "a year" to go into effect; that would be the end of it.

    Paul Voosen didn't claim to list all the possible paths Trump could take so it is unreasonable to expect him to ilst every single one. Even so, the path you suggest is effectively the same as this one Voosen describes:

    More simply, "They could just fail to deliver on U.S. commitment and reverse strong leadership at the international level that the Obama administration provided," says Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.

    The only difference is you mention Trump giving a statement about why he'd do this. Voosen doesn't mention that because it's irrelevant. If Trump decided the agreement was no longer binding, he would "fail to deliver on U.S. Commitment" and so forth. What he says, if he says anything, doesn't change the substance of the action.

    In fact, if Trump decided not to deliver on the nation's commitment under the Paris Agreement, one would expect him to give some statement as to why. Odds are it'd be the same one you suggest. That Voosen didn't write it out means nothing.

    So I don't really see what you're complaining about, unless it's the fact that Lucia et al didn't use the words "executive agreement". A treaty is the only thing that could impede Trump, and Voosen doesn't seem to know that.

    I suggest you try reading this post again. When you do, take note of how I criticize lucia for saying Obama did not have the authority to ratify this agreement and thus could not ratify it. You seem to acknowledge this was an executive agreement, not a treaty. Under that view, everything lucia said about it is wrong as executive agreements do not require Senate approval.

    I don't know which experts you consulted, but it seems very unreasonable that a president can unilaterally abrogate a treaty. As in most things, I prefer the experts who stick with the obvious meaning of the words in the Constitution: Congress must okay treaties. http://www.nytimes.com/2001/08/29/opinion/treaties-don-t-belong-to-presidents-alone.html

    As that article clearly states, Congress must approve of treaties, but there is no legal requirement for Congress to approve the revocation of treaties. The president's authority to terminate treaties without Senate approval has never been tested in court, but there is nothing in the Constitution which challenges it. You can talk about "the obvious meaning of the words in the Constitution" all you want, but the Constitution clearly offers no limitations on the President's authority to terminate treaties.

    Of course, it is possible the Supreme Court would invent a rule not present in the Constitution to limit the President's authority in the way you suggest it is limited. Such a ruling would not be based in anything the Constitution says. It would just be another case of a "common sense" reinterpretation of the Constitution that would be opposed by conservatives as harming the foundation of our nation if they didn't like it.

  12. What I do know is Donald Trump being elected President of the United States should embarrass every person living in the country, if not the world.

    OK Brandon, now you have that of your mind, it didn't embararass me and amongst others, 60+MILLION US citizins, HALF of the US voters, so "every person" seems rather exaggerated. Have you seen Trumps 100 days speech? Can't see much wrong with that, though I have to admit it will horror the warmistas.
    https://m.youtube.com/watch?v=Fld9B48DUkc

    Let's wait and see what exactly happens the first year and the consequences of that. With Trump we're entering a whole new polticial enviroment with much less political corectness and yes, more common sense. In my view Teump will reconcile the Paris Agreement as he will Obamacare and many other Obama "achievements".
    Cheers

  13. Brandon, treaty vs executive agreement, the Constitution makes no mention of 'executive agreement'.
    It does say that this constitution and all treaties made are the supreme law of the land. I misunderstood your argument, and now mostly agree with you. I thought you were arguing his scrapping the agreement is embarrassing, and instead you say it is if he sends it to the Senate.

  14. "The president's authority to terminate treaties without Senate approval has never been tested in court". Then you didn't read the link I posted. It was tested in the Rehnquist court, which chose not to settle it. That came out of a district court which clearly decided that the president has no such authority. And that was overruled by a court in between, though it wasn't clear that it disagreed for that reason. So it has never been fully settled, but I still don't know why you are taking the position you are, much less calling it "clear" in the Constitution. (a) The Constitution gives what may be (to me, logically is) an equivalent situation over to Congress, and (b) the president can't "do" things just because the Constitution doesn't stop him. That is, he can try to do as he pleases, but has no more legal authority over treaties than I do, as the Constitution doesn't say I can't abrogate treaties either.
    And I don't agree with the first thing you said: Trump could "fail to deliver" or he could back out, but they aren't the same. I think Voosen's whole presentation implies that he thinks (wrongly) that Trump can't really back out, all he can do is impede things and drag his feet and ignore the US obligation. Or withdraw from the UN organization, which is a whole different thing.

    Again, you are very interested in Executive Agreements, and you have a set of presumptions (which I think mistaken) on them and treaties. But Lucia isn't responsible for your understanding of them. To her, only a treaty counts in this discussion, because only a treaty would bind Pres. Trump in the way Voosen is assuming. You don't agree, but that doesn't mean Lucia has to discuss it in your terms. In her terms, Executive Agreements are irrelevant.

  15. Hoi Polloi:

    OK Brandon, now you have that of your mind, it didn't embararass me and amongst others, 60+MILLION US citizins, HALF of the US voters, so "every person" seems rather exaggerated

    I find this response confusing. Leaving aside a person could vote for Trump and still be embarrassed Trump got elected, I fail to see how the number of people voting for Trump could mean anything I said was exaggerated. I said everyone should be embarrassed Trump got elected. Even if 60 million or more people are not embarrassed, that does not mean I exaggerated anything when I said they should be. It is often true people should be embarrassed by things but are not.

    Let's wait and see what exactly happens the first year and the consequences of that. With Trump we're entering a whole new polticial enviroment with much less political corectness and yes, more common sense.

    You have no basis for believing Trump will usher in a political environment with "more common sense" other than wishful thinking. Trump has been so wildly unpredictable nobody could reasonably expect to know what he would do (he even directly contradicted his campaign staff's public statements with some frequency), but he certainly hasn't done anything to make "common sense" seem to be something he cares about.

    Unless we have different ideas of what "common sense" might cover. Judging by his campaign, Trump believes one should Frequently lie and/or say things which are obviously untrue. I don't think "common sense" should lead people to behave like that. Perhaps I'm wrong?

    In my view Teump will reconcile the Paris Agreement as he will Obamacare and many other Obama "achievements".

    Could you clarify what you mean by "reconcile" here?

  16. MikeN:

    Brandon, treaty vs executive agreement, the Constitution makes no mention of 'executive agreement'.

    Indeed. This is an example of how the Constitution being a "living document" both works well and how it works poorly. It would be impossible for the government to function if every executive agreement we've had had to be ratified by the Senate. The executive branch needs to be able to make executive agreements for foreign policy to work. That's the upside.

    The flipside is because executive agreements are not discussed or detailed in the Constitution, there are no clear guidelines on they should work. That means we wind up with uncertainty and disputes over whether or not something like the Paris Agreement can be ratified by the president alone. Even worse, that dispute would legally be settled by the Supreme Court (if it ever heard such a case) based largelup upon historical precedent. That means if people had handled situations differently in the past, the ruling might turn out differently. I think that's a bad thing.

    It does say that this constitution and all treaties made are the supreme law of the land. I misunderstood your argument, and now mostly agree with you. I thought you were arguing his scrapping the agreement is embarrassing, and instead you say it is if he sends it to the Senate.

    I'm glad to hear we largely agree. I don't even think it would be bad if Trump asked the Senate to pass a resolution stating its opinion on the agreement. I think he could reasonably do that and then follow the Senate's advice to withdraw from the Paris Agreement (assuming that's how they voted). I actually think that'd be a smart political move.

    But the idea of a president just telling the world his predecessor negotiated a major, international agreement without the authority to do so for no real reason is mind-boggling to me. He doesn't have to do that to withdraw from the Paris Agreement. There's almost no benefit to doing it. It'd be horribly damaging to the nation's credibility, and it wouldn't accomplish much of anything that couldn't be accomplished by just saying, "Obama made a bad deal. I'm not going to make the country suffer for it. I'm withdrawing the United States of America from the Paris Agreement."

  17. MikeR:

    "The president's authority to terminate treaties without Senate approval has never been tested in court". Then you didn't read the link I posted. It was tested in the Rehnquist court, which chose not to settle it.

    Given the article doesn't mention any court actually hearing the case, I think it is cheeky to say a person didn't read an article if they are unaware of a court hearing the case. You are right, however, in pointing out I was wrong to say "tested in court." I should have either said the issue has never been tested in the Supreme Court, meaning there is no ruling which holds an real weight. Alternatively, I could have said it was never "settled" by a court. Or I could have said the judicial branch made a ruling which alowed the President to use the authority to terminate any treaty while not actually saying he has such authority.

    As that shows, the nuance of my remark was inaccurate due to me being imprecise, but the point I was trying to make doesn't hinge upon any of that. All I was trying to point out is the judicial branch has provided no guidance on what the answer to this question is. It has officially taken the position of not taking a position. Which means it chose to allow President to do what he wanted.

    So it has never been fully settled, but I still don't know why you are taking the position you are, much less calling it "clear" in the Constitution. (a) The Constitution gives what may be (to me, logically is) an equivalent situation over to Congress, and (b) the president can't "do" things just because the Constitution doesn't stop him. That is, he can try to do as he pleases, but has no more legal authority over treaties than I do, as the Constitution doesn't say I can't abrogate treaties either.

    This is highly misleading as it ignores what the Constitution says about the President's authority in handling foreign policy. The President is given near total authority over foreign policy. You are not. Choosing to ignore everything the Constitution says outside of one clause in order to claim that clause doesn't resolve this matter is unhelpful.

    And I don't agree with the first thing you said: Trump could "fail to deliver" or he could back out, but they aren't the same. I think Voosen's whole presentation implies that he thinks (wrongly) that Trump can't really back out, all he can do is impede things and drag his feet and ignore the US obligation. Or withdraw from the UN organization, which is a whole different thing.

    You don't have to agree with me, but if you don't offer any explanation as to why these two things are functionally different, there's nothing to discuss.

    Again, you are very interested in Executive Agreements, and you have a set of presumptions (which I think mistaken) on them and treaties. But Lucia isn't responsible for your understanding of them. To her, only a treaty counts in this discussion, because only a treaty would bind Pres. Trump in the way Voosen is assuming. You don't agree, but that doesn't mean Lucia has to discuss it in your terms. In her terms, Executive Agreements are irrelevant.

    lucia says nothing to suggest what you're claiming here. lucia showed no indication she was even aware of what an executive agreement is, and her post would be completely incoherent to one who does. She doesn't have to do anything she doesn't want to do, but her post is either "intentionally misleading or totally ignorant" by pretending it is some absolute fact beyond question that the Paris Agreement is a treaty.

  18. I noticed people at The Blackboard have commented on this post in a derogatory fashion, though the most ardent ones have not commented here. I don't intend to have some cross-site discussion, but I do want to point out something that's rather interesting. lucia's only defense of her post is:

    Voosen is using terms that imply he is claiming it is a treaty (i.e. “ratify” and later “bound”.) My discussion therefor addresses that premise. Had he used language indicating “executive order” I would have posted a discussion based on the premise in his post. I preferred to stick to discussing on his premise. If you don’t like that…well ok.
    If you wish to discuss ‘executive agreements’ we can go ahead and do so.

    But this is complete nonsense. It is perfectly normal to refer to ratifying things by executive agreement. Consider the Wikipedia article on the section of the Constitution dealing with treaties:

    In the United States, the term "treaty" is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from congressional-executive agreements and sole-executive agreements.[1] All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law. Distinctions among the three concern their method of ratification: by two-thirds of the Senate, by normal legislative process, or by the President alone, respectively.

    Anyone acquainted with this subject would know an executive agreement can be used to "ratify" what will be known as a "treaty" under international law. This is just a trivial detail anyone learning about the subject would find out. That someone might choose to use the word "ratify" would in no way mean they are talking about a "treaty" under US law.

    Moreover, Voosen never used the word "ratify." He did say "ratification," which I guess some people might consider close enough to ignore lucia's misquotation. However, Voosen never used the word "bound" in any form or tense. lucia is simply playing semantic games and making up quotations to try to pretend Paul Voosen was speaking as if this were a "treaty" under US law. He wasn't. lucia should just admit she screwed up. I wouldn't hold my breath.

    Oh. One other thing. I realized I forgot to include a link to Voosen's piece in this post. I've updated the post to fix that oversight.

  19. Bandon, If its an executive agreement, it has not been ratified as that term usually refers to a treaty and the act of ratifying it is done by the US Senate. I don't understand how any of this word redefinition can have any practical effect. Trump will easily figure out a way to withdraw or revoke the executive agreement. Let the courts take a decade to figure out if he can or he can't.

  20. David Young:

    Bandon, If its an executive agreement, it has not been ratified as that term usually refers to a treaty and the act of ratifying it is done by the US Senate.

    I'm sorry, but you're wrong. The word "ratify" is routinely used to apply to executive agreements. I cited a Wikipedia article just above as an example. The same usage can be seen all over the discussion of Obama's decision to ratify the Paris Agreement, with critics even mocking it. Take Myron Ebell, Trump's pick for the head of the EPA transition team, as an example. He said:

    What could be more insulting to our Constitution than ‘ratifying’ it in the presence of the Chinese president-dictator?

    I get high school civics classes may talk about "ratifying" treaties being something the Senate does, but anyone involved with discussions of foreign policy should be familiar with this usage as it is quite common. That's why you can see it used in dozens of news articles discussing this and hear it used in every argument the Senate had about Obama's decision to ratify the Paris Agreement.

    That some people may think of the Senate when they hear the word "ratify" does not mean that is the meaning of the word when it is used in discussions of foreign policy. Those people just need to realize things are more complex than their high school civics classes might have led them to believe.

    I don't understand how any of this word redefinition can have any practical effect. Trump will easily figure out a way to withdraw or revoke the executive agreement. Let the courts take a decade to figure out if he can or he can't.

    The practical effect is lucia came up with an absurd and dangerous suggestion for what Trump should do about the Paris Agreement, insulted a journalist and basically called an article trash.

    Get rid of all that, and we find out the article lucia criticized is actually spot on. And as it highlights, Trump would have an easy time not following through with the Paris Agreement. He doesn't need to declare that Obama acted in an unlawful manner or anything else. He can just be like, "Yeah, we're not gonna do it."

  21. Brandon, you seem to be all over the place. You defend the article from being "attacked" by Lucia, which I saw her as simply having minor a couple disagreement and questions regarding Trump's claimed options, but you are doing the same. The article is claiming that Trump can't just ignore it without choosing one of three paths, 1) give 1 yr notice of pull out of UNFCCC, 2) give 3 yr notice of pull out of Paris accord or 3) violate the agreement. You say:

    He doesn't need to declare that Obama acted in an unlawful manner or anything else. He can just be like, "Yeah, we're not gonna do it."

    Which choice is that?

    Personally, I think he should appoint a scientific panel to study matter for 3 months and provide a recommendation to the senate, which he should ask to vote on ratification. If it fails the constitutionally necessary 2/3 vote then Trump announces the bad news to the UNFCCC.

    Trump should show a good example by following the constitution, especially having senate and house majorities.

  22. Ron Graf:

    Brandon, you seem to be all over the place. You defend the article from being "attacked" by Lucia, which I saw her as simply having minor a couple disagreement and questions regarding Trump's claimed options, but you are doing the same. The article is claiming that Trump can't just ignore it without choosing one of three paths, 1) give 1 yr notice of pull out of UNFCCC, 2) give 3 yr notice of pull out of Paris accord or 3) violate the agreement.

    If you read Paul Voosen's article again, I believe you'll find "violate the agreement" is not an accurate description of what he says for option three. He gives that option as:

    More simply, "They could just fail to deliver on U.S. commitment and reverse strong leadership at the international level that the Obama administration provided," says Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.

    Choosing to say, "Nope, we're not gonna do it" is exactly the sort of thing Voosen is talking about. It's recognizing an executive agreement ratified by Obama has no force of law or anything else which requires Trump abide by it and deciding not to abide by Obama's terms.

    In fact, if Voosen believed this was a "treaty" as opposed to "executive agreement," he would never have suggested this possibility. Treaties have legal force. If the Paris Agreement were a treaty under US law, it would be illegal for Trump to choose not to abide by it. The reason Voosen suggested his option is he knows the Paris Agreement is not a treaty and thus has no force of law within the United States.

    Trump should show a good example by following the constitution, especially having senate and house majorities.

    Declaring this to be a "treaty" as opposed to an "executive agreement" would mean imposing an additional restriction on presidential authority. I think the odds of Trump ever choosing to impose additional limitations on his own authority is about a million to one.

  23. Unless we have different ideas of what "common sense" might cover. Judging by his campaign, Trump believes one should Frequently lie and/or say things which are obviously untrue. I don't think "common sense" should lead people to behave like that. Perhaps I'm wrong?

    Obviously you didn't had the courage to open the link and if you did you didn't listen to it. Trump was vey clear what his government will do the first 3 months that sounds common sense to me. Campaign slogans usually don't matter, just sound bites and that goes for all candidates. Obviously your judgement of Trump is highly infected by the usual MSM horror stories, which I find kind of strange knowing your usual attention for details and analyses, unles you have a kind of mental filter.

    Maybe I use the word reconcile wrongly, what I meant is that, as with Obamacare, he will you some parts that suits his program.

    But then again, he IS president-elect, whether you like it or not, just wait and see how things develop the first 6-11 months. Then it will be the moment to start to be critical for what his guvment did or did not. Now all the snowflakes and millenials crying and whining "Not my President" should take example how grown-ups behave when their leader lost, see Romney, McCain etc. Like... grown-ups, not toddlers who throw their toys out of the pram if they dont get what they want and go to their safe spaces.

  24. Hoi Polloi:

    Obviously you didn't had the courage to open the link and if you did you didn't listen to it.

    You may believe whether or not people visit your links and watch videos you link to is a matter of courage, but the reality is people consider many things when deciding what to spend their time on.

    I tend not to spend much time on links people offer unless I have some reason to. If people want me to pay attention to something in a video, they can discuss it themselves. If I find what they have to say interesting, I'll probably check out the video. You may choose to believe that makes me a coward. That's your call. My call is to have little concern for what people as hostile as you think about me. People who say things like:

    Obviously your judgement of Trump is highly infected by the usual MSM horror stories, which I find kind of strange knowing your usual attention for details and analyses, unles you have a kind of mental filter.

    Won't be convinced by anything I say as they've made up their mind already. That the conclusion they've reached is entirely wrong doesn't matter. Pointing out what you say about me simply isn't true won't accomplish anything because you'll choose not to believe me even as you have nothing factual or substantial to base your conclusion on.

    Maybe I use the word reconcile wrongly, what I meant is that, as with Obamacare, he will you some parts that suits his program.

    I have no idea what you just said. I'm not going to worry about it either. You clearly aren't interested in having an actual discussion. If you want to vent some more, go for it. Just don't expect responses. As long as you state as fact things about other people you could only know are true if you had ESP, it'll be clear your reason for commenting is not to have an exchange of ideas.

  25. I'm old enough to remember the Carter, the Reagan, the first Bush, and even
    to some extent the Nixon administration.

    As I recall the subject of treaties and who can make them came up several
    times. But unlike today there was never any dispute about how things worked.

    Only the Senate can ratify or make a treaty. The executive branch, i.e. the President
    negotiates treaties, but whatever is negotiated only becomes an agreement that
    the United States (and its people) have committed to when the Senate agrees by
    a two-thirds majority.

    So one issue with negotiating with the Soviets, for example, was communicating
    to the Soviets that a deal wasn't actually a deal until the Senate had ratified it.
    Another aspect was that at the same time he was negotiating with the Soviets,
    Reagan was expected to keep Congress informed and to not agree to any deal
    that he did not have a two-third's majority support for.

    It would have been thought disingenuous and unethical for Reagan or Carter
    or Nixon or Bush to have signed a treaty that they didn't think they had sufficient
    support for. The reasons for that should be obvious.

    Somehow during the Obama administration all this past understanding of the
    process and the clear words of the Constitution and I guess any understanding
    of what it means to be a democracy have been thrown out the window.

    To my eyes the Obama administration was disingenuous and dishonest in
    signing the Paris Accord and misrepresenting themselves to foreigners as
    capable of committing the United States to such an agreement.

    Although the blame is less on Paul Voosen at Science for misrepresenting
    the situation since he is a private citizen and is not obligated to know this,
    it does not speak well for the scientific community that they have people
    writing editorials that are so clueless.

    Of course that's the kind interpretation. The worse case would be that
    Voosen is well aware of the ideas and principles at stake and is deliberately
    misrepresenting the situation.

  26. mandrewa, I understand that may be how you remember things, but it just aint so. Each of those presidents used executive agreements (as has every president for over 200 years). You may remember one of the most famous executive agreements was ratified under those presidents without even realizing that's what it was.

    I'm talking about the Algiers Accords, the agreement negotiated to get Iran to release 52 Americans hostages in the early 1980s. That was negotiated and ratified solely by the executive branch. Under international law, it was a treaty. Under United States law, it was an "executive agreement." Because under the law of the United States it was not a "treaty," it was never submitted to the Senate for approval.

  27. Bandon, You are being incomplete here. The Algiers Accords had a very limited commitment for the USA and was supported by the vast majority of the country and Congress. You may not have been alive at the time, but for those of us who were, that is very obvious. Paris creates a long term commitment to change the American economy and has almost no support in Congress really.

    It is disingenuous to pretend that these tremendous differences don't matter. Worse, its just quibbling and legalistic really.

  28. Quick note, I saw an error in this post where the word "Accord" was written twice. I've edited the post to fix that mistake.

  29. David Young, I'm not sure why you think I am "being incomplete." I haven't taken a position on whether or not the Paris Agreement should be considered an executive agreement or a treaty. This post points out there are people who think it should be considered an executive agreement and those who think it should not then says:

    I'm not going to examine the legal arguments to try to tell you which side of this argument is correct. I don't know enough to be sure, but I suspect people could reasonably take either position.

    I don't see how you can claim:

    It is disingenuous to pretend that these tremendous differences don't matter. Worse, its just quibbling and legalistic really.

    When I've never suggested the Paris Agreement and the Algiers Accords are similar in any manner other than being put forth as executive agreements (whether or not they should legally be considered such). I suspect you've inadvertently read more into what I've written than is actually there.

    For the record, I have no opinion on the Paris Agreement as I don't care about it in the slightest. I find constitutional law and history interesting. That's why I know and care about the topic of executive agreements.

  30. The Constitution specifies the same approval by the Senate for ambassadors. Do you think a Senate vote is required to fire ambassadors?

  31. MikeN, it's an interesting parallel. I believe it has been firmly established the President is free to fire ambassadors whenever he wants without any input from Congress.

    I'd have to check to be sure because I've never looked at exactly what position ambassadors hold. There are some positions the President doesn't have absolute authority to fire people from. For instance, Congress does have the authority to create federal administrative agencies for which the President doesn't have absolute authority in dismissing people. I don't think anything like that should affect the firing of ambassadors, but I don't want to say anything with 100% certainty if I haven't looked into it.

  32. I don't remember all the details but Jimmy Carter's Algiers Accord seems a good
    example of the difference between an agreement made by the head of the US
    government, the President, and an agreement by the United States of America.
    They are two different things. The one has only the authority of the President of
    the United States behind it, which admittedly is substantial, and the other is a
    significantly larger commitment by far more people.

    It helps to remember the context. There had been a revolution in Iran and the
    new government was displeased with the United States about something, I don't
    recall what the pretext was or even if there was a pretext, and they took several
    hundred Americans hostage including the staff of the US embassy to Iran.

    Jimmy Carter attempted to negotiate but the negotiations went nowhere. The US
    froze Iranian financial assets in the US. Iran froze American assets in Iran. Carter
    ordered a small military expedition to rescue the hostages. The armed raid and
    rescue operation failed.

    The several hundred Americans in question were hostages for over two years.
    Ronald Reagan was elected President. In the several months, after Reagan had
    been elected and before Reagan actually took office Carter negotiated a deal
    with Iran where the hostages would be released in exchange for the US returning
    the Iranian money it had seized in response to the original hostage taking, with
    the exception of about 4 billion dollars that were already involved in legal claims
    in the US court system by US companies that had had their assets in Iran seized.

    The hostages were returned literally days before Reagan became president.

    I kind of doubt that a two-thirds majority of the US Senate would have supported
    this agreement. Apparently Carter also doubted. He definitely didn't ask.

    The terms of the agreement were largely completed before Ronald Reagan even
    took office. The hostages were returned and the financial assets were given to
    Iran.

    What point would there have been in Reagan repudiating it?

  33. mandrewa, I agree with much of the substance of your comment, with much of the rest being matters of unimportant details (e.g. there were only ~50 hostages, not hundreds of them). The important part is:

    I don't remember all the details but Jimmy Carter's Algiers Accord seems a good
    example of the difference between an agreement made by the head of the US
    government, the President, and an agreement by the United States of America.
    They are two different things. The one has only the authority of the President of
    the United States behind it, which admittedly is substantial, and the other is a
    significantly larger commitment by far more people.

    That is the central issue when examining executive agreements. The President has been given a lot of authority in making executive agreements (I'd argue more than was ever intended), and there isn't a clear line as to where his authority ends and where Congress's begins. That said, executive agreements are still based solely upon the president's authority. If the president makes pledges he doesn't have the authority to make, the United States is not obliged to live up to them.

    I don't know where the line should or would be drawn between "executive agreement" and "treaty" under U.S. law. That's a complex question I wouldn't feel qualified to answer. What I do feel qualified to say is Barack Obama negotiated (or had his staff negotiate) the Paris Agreement as what he felt was an executive agreement. It was never intended to be a treaty under U.S. law.

    Did Obama overstep his authority in this negotiation? Maybe. I don't know. I just know executive agreements are a common thing people interested in foreign policy are well-aware of. It was wrong for lucia to lay into Paul Voosen for discussing an executive agreement in terminology anyone familiar with the topic should understand. That she was unaware of basic details of how U.S. foreign policy works doesn't justify her insulting someone.

    That's my view on the matter. I don't think I need to go any further than that. I'm pretty sure nobody would want me to. Experience shows me people tend not to like it when I discuss broad views on the United States government. I think it has something to do with the fact I use words like "enslavement," "tyranny" and "criminal enterprise masquerading as a legitimate body of government." Apparently people find that inflammatory.

  34. Brandon,
    Kudos for many of your comments, particularly those offering explanations of subtle points. Many of those seem to be beyond those addicted to "common sense" and those possessing a limited memory of historical events. As a skeptic, I've been somewhat irritated by the level of surety expressed by so many folks about so many political things of late on what are generally considered skeptical blogs. Is "skeptic" just a synonym for conservative? Or am I too misperceiving subtleties? Quien sabe? But, thanks for your input.

  35. Thanks! One reason I've followed the climate debate is the attention to detail and nuance I found on sites like Climate Audit appealed to me. That's one of the reasons I used to like commenting at The Blackboard - they actually worried about things like that. Sadly, as experiences like this show, it seems to be lacking as of late.

    I have to wonder how much things have changed. Have people changed? Have my perceptions changed? Is it maybe just that the subject matter has changed? I don't know. What I do know is there are clear differences in how people react to those they agree with and those they disagree with. That's not how "skeptics" are supposed to behave.

    By the way, my mind read, "Quien sabe?" as, "Kemo sabe." It made me laugh.

  36. I have no idea what you just said. I'm not going to worry about it either.

    What I've said is just happening in front of your eyes and you don't see, or don't want to see it: http://www.bbc.com/news/election-us-2016-37953528

    Not opening the link I sent is clearly proving the point that you are only interested in what you believe and like to believe, without even taking the time to listen what the other side has to say. And this my dear Brandon the Smart, is why Trump has won, Democrats and Clinton are not interested at all what the other side has to say (and so does the MDM) and then are very surprised, even shocked that Trump is elected.

    Now, you of course you can fill your won blog with quadrillion well chosen words, but that does not hide the fact that you just don't get it. Wish you well in your own well spun cocoon.

  37. Pointing out what you say about me simply isn't true won't accomplish anything because you'll choose not to believe me even as you have nothing factual or substantial to base your conclusion on.

    Except this is what you said: "What I do know is Donald Trump being elected President of the United States should embarrass every person living in the country, if not the world." which after all your word cascades you've probably forgotten.

  38. Hoi Polloi:

    What I've said is just happening in front of your eyes and you don't see, or don't want to see it:

    It could be that I'm too close-minded to read what you have to say, It could also be you just don't take the time to proofread your comments, causing them to have various typos and other errors that sometimes make it difficult for people to understand what you're trying to say.

    I'd recommend first resorting to reviewing your comments for errors before submitting them. Then, if that didn't help, maybe consider going with the sort of hostility you're engaging in. That's just me.

  39. Ah Brandon resorts to spelling-nazi.

    My apologies for my awful English, cause it's not my mother language (it's Dutch).

    Tot ziens!

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