SMS OPINES: Make the Senate Vote !


Polls show that majorities of Americans in all 50 states support the Paris Agreement.  However, Trump may disagree, the agreement has  never been reviewed by the Senate AS A TREATY!  The Senate Democrats should force a vote!  All that this woudl require is that the Committee on Foreign Relations send the agreement to the full Senate for its “advice and consent” for approval or disapproval. Approval requires 67 votes, or two-thirds of the 100 Senators.

What would the GOP do?  If the Committee on Foreign Relations refused to remand the Agreement, this would create a major election  issue in 2018 and a worse issue in 2020 when the consequences to US trade will become apparent.

My reading of an  article in the Washington Post by Eugene Kontorovich. a professor of constitutional law,  at explains why such an effort by the Democrats is actually demanded by US law. He says (edited): “Two features cut heavily against the agreement  being treated as the kind of arrangement that can be entered into by a president on his own authority. First, the agreement has a four-year waiting period for withdrawal, quite unlike traditional executive agreements. Second, it is a large multilateral deal, and the other parties apparently believe it requires domestic ratification. Whatever that means for U.S. constitutional purposes, it does suggest that other countries should hardly protest if Trump merely follows their example to seek domestic ratification.

……  Some scholars have gone so far as to argue that the Paris agreement represents an exotic and previously unidentified species of international deal that does not have to be treated as a treaty. But even in this view, if Obama was within his rights to treat it as a non-treaty, Trump(or presumably the Senate)  would be entirely within his  (its)executive rights to interpret it differently — as a treaty requiring Senate consent, which has not even been sought yet. …. foreign countries are in no place to complain if the United States insists on treating the agreement as a treaty requiring submission to the legislature — because that is exactly how they have treated it themselves. (other) countries seem invariably to have accepted the agreement as a treaty that requires going through their internal treaty-ratification processes, typically submission to the legislature. Countries from the United Kingdom to China to Jamaica have ratified it through their legislatures. So has Brazil, Japan, the Philippines and Australia. In the latter, the question of whether it was a binding international accord requiring submission to Parliament received some discussion, and a parliamentary analysis concluded it was a “major treaty” that needed to be submitted.

I know of no country that has taken the U.S. approach. All countries seem to understand that ratification requires using the domestic procedure for ratifying treaties……

Indeed, the Supreme Court has suggested that the international legal trappings of an agreement are relevant to the constitutional treaty/sole executive agreement distinction. See Holmes v. Jennison, 39 U.S. 540, 571 (1840) (“For when we speak of ‘a treaty’ we mean an instrument written and executed with the formalities customary among nations.”) (Taney, C.J.)

In short, Trump is not quitting the Paris accord. The United States was never in it in the first place.


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