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President Obama’s signing of the Paris Agreement is only good for nine months

This Earth Day, President Obama will sign the Paris Agreement on climate change, which seeks to limit greenhouse gas emissions and funnel aid to developing nations. Amid the pageantry and celebration, a crucial fact will be downplayed: Obama’s signature is good for a maximum of nine months.

President Obama is signing the Paris Accord, but The United States is not. To bind the country, the Agreement must be ratified as a treaty by two thirds of the Senate.

{mosads}The Administration argues that the Accord is not a treaty but rather an executive agreement between President Obama and other nations.  Even so, the President cannot bind the country with an executive agreement; he can only bind his administration.

Thus, the Paris Agreement is either an unratified treaty—in which case it has no effect—or it is an agreement only with the Obama Administration—in which case it is only valid for the nine months until his administration ends. Either way, the agreement is ineffective come January.

The Constitution’s separation of powers prevents the President from binding the country unilaterally. Our system does not divide authority into spheres controlled exclusively by the Senate, House, and President. Rather, it requires combinations of offices to work together, be it passing a law or appointing the head of an agency. A bill passed only by the Senate is not the law of the United States, nor is an agreement signed solely by the President. No single branch or chamber acts alone. Broad consensus is required.

The President’s counterparties in Paris realized that he lacked the support to bind the country. In fact, they watered down the wording of the Agreement to facilitate the Administration’s argument that it does not require ratification. For example, they changed the word “shall” to “should” in many places, and they avoided calling it a “treaty.”

The negotiators had a choice between a treaty that might bind the United States and nine-month promise from an outgoing president. They chose the promise from an outgoing president. Any claims that the next administration or the country is “going back on its word” will be disingenuous.  Only the Obama administration gave its word, and the other parties in Paris helped design the agreement to make that result possible.

This approach contrasts starkly with prior climate negotiations. Both the Kyoto Protocol and the United Nations Framework Convention on Climate Change were negotiated as treaties in order to bind the United States. The UNFCCC passed the Senate, but Kyoto never garnered enough support for President Clinton to put it to a vote.

Despite Kyoto’s lack of popularity, President Clinton did not deny it was a treaty. Instead, he continued to lobby senators in an effort to eventually convince them to ratify it. Clinton knew Senate approval would be difficult, but he also knew it was the price of a binding agreement. Kyoto failed, but it came one step closer to binding the Untied States that the Paris Agreement has.

The Obama Administration describes the Paris Accord as “the most ambitious climate change agreement in history.” That is an odd way to describe a decades-long promise it cannot keep for more than nine months.

Stonedale is an attorney with the Center for the American Future at the Texas Public Policy Foundation.


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