Paris cli­mate deal un­der Obama was a scheme

Emails show ‘dis­turb­ing con­tempt’ for the Sen­ate’s treaty role

The Washington Times Weekly - - Commentary - By Christo­pher C. Horner

The New York Times on Aug. 24, 2014, broke a ma­jor news story: “Obama push­ing Cli­mate Ac­cord in Lieu of Treaty.” It’s a clumsy head­line — no one dared claim the Ky­oto Pro­to­col was any­thing other than a treaty re­quir­ing Sen­ate rat­i­fi­ca­tion, and even the Grey Lady calls it the “Ky­oto Ac­cord.” What the story re­vealed, how­ever, was shock­ing news in­deed, made more shock­ing by an email just re­vealed by the State De­part­ment in Free­dom of In­for­ma­tion Act lit­i­ga­tion.

This email, ob­tained by the En­ergy and En­vi­ron­ment Le­gal In­sti­tute, fur­ther calls into ques­tion the Sen­ate’s fail­ure to con­front Pres­i­dent Obama over his usurpa­tion of the body’s con­sti­tu­tional treaty func­tion through the Paris cli­mate agree­ment.

It also stokes con­cerns whether the in­sti­tu­tion will re­claim its pow­ers, as ap­pears will be nec­es­sary in or­der to make good on Pres­i­dent Trump’s an­nounced plan to with­draw from Paris. The Times story’s key pas­sage: “In seek­ing to go around Congress to push his in­ter­na­tional cli­mate change agenda, Mr. Obama is echo­ing his do­mes­tic cli­mate strat­egy. In June, he by­passed Congress and used his ex­ec­u­tive author­ity to or­der a far-reach­ing reg­u­la­tion forc­ing Amer­i­can coal-fired power plants to curb their car­bon emis­sions. … The Obama ad­min­is­tra­tion’s in­ter­na­tional cli­mate strat­egy is likely to in­fu­ri­ate Repub­li­can law­mak­ers who al­ready say the pres­i­dent is abus­ing his ex­ec­u­tive author­ity by push­ing through ma­jor poli­cies with­out con­gres­sional ap­proval.”

Mr. Obama jammed those EPA rules through by ex­ec­u­tive fiat, af­ter a Democra­tled Congress killed leg­is­la­tion to grant the author­ity he then claimed to al­ready pos­sess; the Supreme Court put the rules on ice upon chal­lenge by a ma­jor­ity of states. The Paris cli­mate agree­ment, how­ever, uni­lat­er­ally im­posed on Mr. Obama’s way out the door, would be “a treaty that was go­ing to last un­til the end of the cen­tury.”

That’s ac­cord­ing to a se­nior Obama ad­min­is­tra­tion of­fi­cial.

Of course, un­der our Con­sti­tu­tion’s Ar­ti­cle II, Sec­tion 2, no pres­i­dent can com­mit the U.S. to treaties with­out Sen­ate ad­vice and con­sent.

On the morn­ing the Times story broke out­ing Mr. Obama’s Paris end-run around our Con­sti­tu­tion, State De­part­ment pub­lic af­fairs aide Alexan­dra Costello wrote to Andy Ol­son, a lawyer for the se­nior Repub­li­can on the Sen­ate For­eign Re­la­tions Com­mit­tee, Bob Corker, in­sist­ing the story con­tained “some in­ac­cu­ra­cies/as­sump­tions that we pushed back on” with­out suc­cess.

Mr. Ol­son wrote back, “I cer­tainly hope it is in­ac­cu­rate be­cause some of the things al­leged in­di­cate a dis­turb­ing con­tempt for the Sen­ate’s con­sti­tu­tional rights and re­spon­si­bil­i­ties. We will need to be fully briefed when staff are back next week.” Strong stuff, and true.

These in­ac­cu­ra­cies State then ironed out with the Sen­ate are a mys­tery, given that the Times story ac­cu­rately de­tailed what proved to be Mr. Obama’s plan. Yet the Sen­ate rather shame­fully made no move to ar­rest this “con­temp­tu­ous” usurpa­tion.

Paris is the suc­ces­sor to the Ky­oto pact that died in the Sen­ate. Such treaties are non­starters un­der the United States’ demo­cratic process; Paris even more so.

Ky­oto com­mit­ted to a five-year plan; the Paris treaty prom­ises a new, tighter com­mit­ment every five years, for­ever. It is a treaty by its terms, cus­tom and prac­tice over two-plus cen­turies of shared as­sump­tions.

Brazenly, Team Obama ad­vanced a his­toric pre­tense of declar­ing what even they hailed as “the most am­bi­tious cli­mate change agree­ment in his­tory” some­how “not a treaty,” bet­ting the Sen­ate would not speak up. They bet right.

Though Paris’ reach into per­pe­tu­ity was not known at the time this Times story broke, the seizure of power that it re­vealed made it big news, shock­ing Sen­ate lawyers. The lack of Sen­ate in­ter­ven­tion to this day

As the dis­as­trous Iran deal showed, the in­sti­tu­tion has so at­ro­phied it can no longer muster the will to pro­tect its con­sti­tu­tion­ally del­e­gated pre­rog­a­tives.

re­mains scan­dalous. As the dis­as­trous Iran deal showed, the in­sti­tu­tion has so at­ro­phied it can no longer muster the will to pro­tect its con­sti­tu­tion­ally del­e­gated pre­rog­a­tives.

On June 1, Pres­i­dent Trump an­nounced he would with­draw the United States from the Paris treaty, but through a process re­quir­ing him to wait more than two more years to send writ­ten no­tice. This would take ef­fect one year af­ter that, by chance the day af­ter the 2020 re-elec­tion. As a purely ex­ec­u­tive move, Mr. Trump’s suc­ces­sor can re­store Mr. Obama’s treaty with a pen and a phone. Un­less the Sen­ate weighs in.

Over the week fol­low­ing the Times’ story, this same heav­ily redacted email thread shows State of­fi­cials ex­chang­ing emails over hav­ing been caught so far in ad­vance of their in­tended coup. They were rightly wor­ried, yet in the end, the Sen­ate did noth­ing.

These writ­ten dis­cus­sions surely would in­form the pub­lic — and the Sen­ate — about the lat­ter’s proper re­sponse go­ing for­ward, pos­si­bly tak­ing the illicit Paris cli­mate pact up as the treaty it plainly is.

As Mr. Trump’s prom­ise faces com­ing tests, we all de­serve to see and con­sider Team Obama’s dis­cus­sion about hav­ing been caught in their un­con­sti­tu­tional cli­mate gam­bit. Christo­pher C. Horner is a se­nior fel­low at the Com­pet­i­tive En­ter­prise In­sti­tute.


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