Under the leadership of California Gov. Jerry Brown and with Govs. Andrew Cuomo of New York and Jay Inslee of Washington complicit, the United States Climate Alliance was formed. It is an alliance of states committed to upholding the 2015 Paris Accord from which President Donald Trump has threatened to pull out and renegotiate. “California will resist,” Brown affirmed.
The United Nations deal, accord, agreement or whatever the name – but never called a “treaty,” as this would actually bind agreeing countries – came about Dec. 12, 2015, in Le Bourget, France, where representatives of 195 countries assembled. Most agreed to lower greenhouse gas emissions which are believed to affect climate change. The arrangement attempts to bind signing countries, beginning in 2020, to convene every five years with their plans to lowering emissions and reconvene again three years later with statistics on their new improved emission levels.
The problem is that, despite the practice of not using the word “treaty” that began with former President Bill Clinton’s North American Free Trade Agreement and General Agreement on Tariff and Trade, any deal, accord or agreement that has any expectation of accomplishing anything should be called a “treaty” and must be ratified by the U.S. Senate to be constitutional. Not using the word “treaty” means that participating nations simply had a discussion. Politicians cannot just change the word “treaty” to a synonym of treaty with the intent to thereby bypass the U.S. Senate, which body is responsible for all agreements with foreign nations, and thus the Constitution, to accomplish a binding purpose on this nation.
The Constitution gives the president “power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur,” according to Article II, Section 2, Clause 2. No other term is used in the Constitution to describe an agreement between nations. Verbiage created by the foreign policy team of former President Barack Obama presented in a U.N. assemblage in Paris by former Secretary of State John Kerry, without either advice in forming the words or consent of the Senate thereafter, is a flagrant violation of the Constitution.
Trump should rescind the “understanding” in Paris on constitutional grounds alone. That the Republicans view the science of human-caused climate change as unproved, and thus they disapprove of any understanding that binds them as the so-called Paris Accords do, should be secondary. Still, Trump’s resistance to it is understandable. Both political parties should disapprove it, as the U.S. Senate, as required by the Constitution, never ratified it.
But the governors are violating other parts of the Constitution as well. Listed in Article I, Section 10 are powers denied to the states, mostly those given to Congress in Section 8. It begins, “No state shall enter into any treaty, alliance or confederation…” The listing follows, but it means with any other states or nations. Certainly Brown’s United States Climate Alliance is an alliance with other states to accomplish a combined purpose specifically forbidden by the Constitution.
Brown has a history of forming other alliances with states and even countries in his Under2 Coalition, called “a group of national and subnational governments dedicated to keeping global warming below 2 degrees Celsius,” which “now boasts more than 170 jurisdictions worldwide, with Canada, Mexico and Sweden among the newest members” according to a Tribune News Service article June 2, 2017, entitled “As Trump Exists Climate Deal, States Form Alliance to Uphold it.” These countries include signed agreements with China and Germany. Not only does this action violate the above-mentioned constitutional citation, but it violates yet another, which reads “No state shall, without the consent of Congress … enter into any agreement or compact with another state or with a foreign power,” according to Article 1, Section 10, Clause 3.
It gets worse. Considering himself America’s climate czar, Brown is “urging the world to defy President Trump and join him in San Francisco next year for a ‘climate action summit.’” President Trump “is trying to get out of the Paris agreement, but he doesn’t speak for the rest of America,” Brown told an audience, according to another article from the Tribune News Service, “Challenging Trump, Jerry Brown Announces Global Climate Summit in California,” July 10, 2017. His defiance is not only unconstitutional but borders on treason. It is a dangerous precedent if the governor’s threat to the nation and Constitution is not challenged.
Brown may argue that he is initiating only economic agreements with foreign countries, but the Constitution governs this area as well, leaving it to the federal government.
“No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports” or “lay any duty of tonnage,” and continues with other restrictions on the state in Article 1, Section 10, Clause 2. Clearly Congress alone has “power to regulate commerce with foreign nations,” as in Article 1, Section 8, Clause 3.
Unfortunately, the United States Climate Alliance, created by the governors of California, Washington and New York just two months ago, has grown to include 12 states and Puerto Rico. Nowhere in the Constitution is a governor given authority to represent the federal government on foreign policy, defy existing policy or participate in creating new foreign policy. Like it or not, Trump does speak for America, and constitutionally the federal government is the only authority in foreign policy, including climate policy or foreign commerce.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.