Press Releases

The issue of the appropriate roles of Congress and the President with respect to the subject of foreign affairs is certainly worthy of a genuinely substantive discussion.

For instance, we could consider whether our Nation’s current military operations against the Islamic State of Iraq and Syria have been properly authorized by Congress.

Unfortunately, however, today’s hearing – like the prior Task Force hearings – is yet another thinly veiled attack against the current Administration. 

To begin with, neither the Iran nuclear agreement nor the Paris climate change agreement is a “treaty” within the meaning of the Constitution’s Treaty Clause that requires  Senate consent.

The Paris climate change agreement, for example, contains no mandatory quantitative emission reductions.  Rather, it is a strong exhortation that parties take concrete, transparent, but, ultimately, self-directed steps to reduce greenhouse gas emissions.

Contrary to the assertions of some, this agreement does not contain legally-binding requirements, nor does it purport to grant new authority to the President to meet any such requirements.

In short, it does not meet the traditional criteria of a “treaty” within the meaning of the Treaty Clause.

And, the Iran agreement was a set of political commitments rather than legally-binding requirements.  Thus, it also was not constitutionally required to be subject to Senate approval.

In addition, both agreements are consistent with existing United States law. 

For instance, the statutes imposing sanctions on Iran for its nuclear weapons program also give the President the discretion to remove these sanctions should certain criteria be met.

And, the Paris climate agreement was reached pursuant to a 1992 climate change treaty that the Senate had already ratified.  In other words, the Paris agreement is consistent with the obligations created by a treaty that, under the Supremacy Clause, was already the law of the land.

Finally, as Professor Stephen Vladeck, the Minority witness, correctly notes, arguments questioning the legality of these agreements are part of an ongoing attempt to paint policy disputes as constitutional matters.

Whatever one thinks about the merits of either the Iran nuclear agreement or the Paris climate agreement, the Constitution and historical practice make clear that the President was within his authority to enter into them.

At any rate, Congress already had the opportunity to make its voice heard. With respect to the Iran nuclear agreement, Congress had the chance to disapprove the agreement, but opponents of the agreement failed to obtain the necessary votes to prevent the agreement from taking effect.

And, as I noted, the Senate long ago ratified the climate change treaty pursuant to which the Paris agreement was entered.

Rather than sparking enlightened discussion, today’s hearing, I fear, appears to be yet another in a long string of partisan exercises by this Task Force. 

Nevertheless, I thank the witnesses for appearing today and I look forward to hearing their testimony.