It's a signed agreement to collaborate and adjust trade behind closed doors with a foreign power. Foreign trade is reserved as a power for Congress, and foreign policy a power for the executive, is it not?
> Brown later held a closed-door meeting with the Chinese president, Xi Jinping, during which the two pledged to expand trade between California and China with an emphasis on so-called green technologies that could help address climate change, Brown said.
From the Constitution, article 1 section 10:
> No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
"...or in such imminent Danger as will not admit of delay."
There's the out. It may (and will) be argued that climate change is an imminent Danger that will not admit of delay. The associativity of the clauses is just ambiguous enough that the last one can be paired with any of the others, not just engaging in war. And, I am confident there are people in California willing to take that argument to the Supreme Court.
Yeah, I see it. I also see the dangers associated with it. Without a singular source of international relations, foreign powers can fracture the union in very bad ways. Though I suppose we're all pretty much divided at this point anyway, so there's not much point in being concerned anymore, is there?
I see we are reaching new heights of sophistry in our disregard for the Constitution. It's clearly not an response to an "imminent Danger that will not admit of delay" if the agreement in question takes no urgent and effective action. Or if the danger in question is something on the scale of decades away, where action starting today is just about as effective (or ineffective) as action starting a year or two years from now.
Commerce that remains internal to a state also shouldn't be regulated by the interstate commerce clause, yet that's been done for almost a century. There are no new heights of sophistry here, US history is littered with examples of convoluted logic to find constitutional grounds for whatever those in (various levels of) power want to do.
>enter into any Agreement or Compact with another State
Not well-read on the case law here, but are you sure signing a non-binding pledge qualifies under this section? I would assume it underwent basic vetting by constitutional law experts.
I haven't come across much case law on the meaning of that when a foreign power is involved, but in the case of an agreement or compact between states the Supreme Court has dealt with it.
They have determined that it does not cover every agreement or compact:
---------Virginia v. Tennessee 148 U.S. 503 (1893)---------
There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its exhibits to the World's Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that state to obtain the consent of Congress before it could contract with New York for the transportation of the exhibits through that state in that way. If the bordering line of two states should cross some malarious and disease-producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of Congress for the bordering states to agree to unite in draining the district, and thus removing the cause of disease. So, in case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened states could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of Congress, which might not be at the time in session. If, then, the terms "compact" or "agreement" in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?
We can only reply by looking at the object of the constitutional provision and construing the terms "agreement" and "compact" by reference to it. It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubtful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words, and the meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.
Looking at the clause in which the terms "compact" or "agreement" appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.
A non-binding agreement would appear to pass muster, no?
But what if California actually then goes on to enforce the agreement by forcing, say, utilities to do things which they object to? I suspect the courts would at least demand that California pass a statute in order to accomplish that, and then the fact that an agreement with a foreign power motivated the statute might be of little interest. Who knows! Fun times.
I can agree to the statement "we should work together on climate change" without making a binding commitment (which in my opinion would mean anything enforceable) so I'm not sure I get your point
Don't let yourself be fooled. China is not being high-minded or altruistic. The Paris Accord was economically beneficial to the Chinese because it explicitly allowed them to increase emissions, to continue their high growth rate and "catch up" to Western economies. Of course they want to tie the hands of their major economic competitors. And now they also see an opportunity to rehabilitate their public image in the minds of Western liberals, all while they keep throwing political dissidents in jail and oppressing religious minorities. And burning more dirty coal anyway too.
I'm not making an argument for or against the Paris Accord here--it's reasonable to argue that it's only fair to allow developing countries more flexibility under it. But please don't let yourself fall for Chinese propaganda that tries to paint them as altruistic or taking a moral high ground, or most absurdly, as the new "leaders" of the green movement.
OP is impressed by the shift in public perception, not in the causes itself. If America was ever the leader of the green movement, it also had its own sinister roots.
Are you sure about that? I didn't read it at all like that.
But it's easy for China to cheer on the Paris Accord, at least for now. Even though they already produce more emissions per capita than the EU average, they get to increase their emissions without a set limit, while competing European countries axe their emissions in half – and Europe pays China for all this while industry flees into Asia of the ever increasing costs of operation. To me it doesn't sound like a good deal at all with us being in recession for most part of the last decade.
Ah, yes, Trump's crazy theory that global warming was invented by the Chinese to cripple the US economy.
If that was the case, China would be charging ahead with fossil fuels and doing nothing with renewables. But instead it is doing exactly the opposite, canceling hundreds of coal-fired power plants, and installing solar and wind energy at a truly amazing rate. And building up huge industries that will make it hundreds of billions of dollars.
>Ah, yes, Trump's crazy theory that global warming was invented by the Chinese to cripple the US economy.
I'd really rather that you didn't put words in my mouth. And the actual risk and necessary responses to climate change are completely orthogonal to the point I was making.
>I'd really rather that you didn't put words in my mouth.
But you said: "Of course they want to tie the hands of their major economic competitors." How is that any different than Trump's crackpot theory that global climate change was invented by the Chinese to cripple the US economy? And you don't reject the idea climate change is a hoax, you try to duck the issue by saying it is orthogonal.
In an case, the question today is not why China signed the treaty back then, but it is doing now. As I explained, it is charging ahead with renewables. They are doing this because they are worried about global climate change doing damage to their own country, because coal is causing terrible air pollution problems, and because they see an opportunity to establish a major global industry. Your idea that they are doing it only to divert attention from their human rights abuses is completely cracked.
Oh, and if you are going to post a link supporting your position, it really ought to be one that is not hidden behind a paywall.
The fact that the Paris Accord demands deep emissions cuts of Western nations but not of China, and therefore economically benefits China at the expense of the West, has nothing to do with whether anthropogenic climate change is real.
The conventional story starts with climate scientists discovering that human action is causing the climate getting much warmer, and this being very bad for humans. This in turn leads to a need to switch off of fossil fuels and onto renewable energy, which would after a while be cheaper than conventional energy and so cause no economic harm. The conventional story continues that nations around the world were persuaded, and so they have set on this path, and as part of this signed the Paris Treaty. China is included as believing climate change is real and supporting moving to renewables, and since the Paris Treaty was signed has done this at a very rapid rate. It is also doing this, as I said, because it has very serious air pollution problems, and also wants to make a lot of money selling technology for renewable energy.
Trump and his millions of supporters tell a completely different story. They claim the scientists did not discover human activity is making the world warmer, but this is instead a lie they made up for illegitimate reasons. They claim that renewable energy is vastly more expensive than conventional, and will continue to be so for a very long time. They claim that the Chinese government knows all this, but is pretending to believe it so as to undermine the US economy by driving up its energy costs. And they claim that China is itself making only minor efforts to convert over to renewables, and is basically charging ahead as fast as ever to increase fossil fuel use.
Now everything you have said fits into the Trump crackpot story, and so I am assuming you believe the whole thing. You claim I am wrong, but you never present anything contrary. My best guess is this is because you really do agree with Trump, but don't want to admit it. Or maybe you are just plain confused.
If you really do think differently from Trump, then you need to lay out your whole story of what is really going on, from the beginning.
And be sure to make clear what you think Trump is right or wrong about (you do care, I assume, about whether the most powerful man in the world is right or wrong on this most important issue).
I think it's really unfortunate that you're more interested in a witch hunt than in actually engaging in the points raised in the discussion. I don't play on those terms. I see no need to prove to you or anyone else that I pass some litmus test that the direct point I was making is not contingent on.
Explanations of reality are not neatly divided into two camps. One can believe that anthropogenic climate change is a major issue worth addressing with vigor, and also believe that the most recent attempts to reach an international accord to that end are terrible for the long term economic and political interests of the West.
I am not engaged in a witch hunt. I am just asking you what you think on some very important matters.
I assumed that you believe the Trump position because it is one of the two main ones, and everything you said fit with it. If you agree with the Trump position on some points, but disagree on others, you should have made that clear.
You know, you have a whole set of views on this matter. I am quite puzzled as to why you don't want to lay them all out, like everyone else does.
>One can believe that anthropogenic climate change is a major issue worth addressing with vigor, and also believe that the most recent attempts to reach an international accord to that end are terrible for the long term economic and political interests of the West.
Ok, you are starting to state what you believe, but it is quite incomplete. To start, when you say, "worth addressing with vigor" do you think that means the world should be working now to rapidly switch off of fossil fuels and onto renewables? Or do you believe this is a terrible idea because you think renewable energy is far too expensive and will be for a long time, or for some other reason?
And if you believe that we should not now be rapidly moving off of fossil fuels and onto renewables, then what specific actions should be involved in addressing climate change with vigor?
I'm guessing you haven't read the Paris accord, China is still considered a developing country so they not only get to increase carbon emissions, but they get paid by the developed world to do it. Why wouldn't they sign the Paris Accord when they get free money for doing it?
Maybe not the contract clause, but what about this?
> No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Foreign policy is reserved for the federal government, is it not?
With nearly 3/4s of State legislatures in the hands of one party (Republican), a Constitutional Convention is not farfetched, and a constitutional crisis won't be needed to force it, and California almost certainly doesn't want it (since CA is Democrat).
Maybe? Still more than just symbolic, though. An agreement was actually signed by the governor of California with a foreign power. He didn't just do it as a symbol -- it was actually an agreement to adjust trade, and who knows what else behind closed doors.
Considering the expansive, still in force, New Deal era interpretation of the Commerce Clause, the U.S. could challenge California's actions in federal court and possibly win. Who knows. Maybe we can get a better interpretation of the Commerce Clause out of it!
313 U.S. 69 (1941)
>A State has power to govern the conduct of its citizens upon the high sea with respect to matters in which the State has a legitimate interest and where there is no conflict with Acts of Congress
Sounds like a fun Supreme Court case :)
Also, from the article:
>Like the Paris accord, the deals are all non-binding. They call for investments in low-carbon energy sources, cooperation on climate research and the commercialization of cleaner technologies.
Which doesn't sound like a Treaty (in the same way the Paris Accord was not a treaty as the US President unilaterally signed the agreement without consent of Congress)
FWIW, some executive agreements have the force of treaty without needing ratification. These are generally authorized by statute or by a previous ratified treaty.
Note that this is an important question. IF the Paris accord is a binding executive agreement authorized by the UNFCC treaty, and if there were no controversy about that (or the U.S. courts found that it is a valid executive agreement and in force), then it would be true that withdrawing from it would be subject to withdrawal clauses. On the other hand, if it is non-binding, and/or subject to ratification by the Senate, then withdrawal clauses cannot be applicable no matter how much European powers claim they must be, at least not as to U.S. law. (Foreign powers might apply sanctions, though that seems unlikely, to enforce withdrawal clauses.)
Of course, POTUS could always abrogate the UNFCC treaty if U.S. courts were to find that the Paris accord is a binding executive agreement not subject to ratification by the Senate, if POTUS found the withdrawal clauses too onerous. POTUS can abrogate treaties unilaterally, without negotiation or approval from either house of Congress or anyone else. Bush abrogated the ABM treaty, you might recall.
The US Senate did ratify the UNFCCC Treaty in 1992
> 10/07/1992 Resolution of advice and consent to ratification agreed to in Senate by Division Vote.[0]
So perhaps yes, the Paris Agreement is binding to the US in the sense that it's parent treaty, the UNFCCC was actually ratified by the Senate, and was not simply an Executive action. If this is the case, we cannot simply end participation in the treaty without being in abrogation of both the Paris agreement, AND the UNFCCC. Please excuse me if I am simply repeating what you're saying.
But Article 25 (pg21) of the UNFCCC states[1]:
>1. At any time after three years from the date on which the Convention has entered into
force for a Party, that Party may withdraw from the Convention by giving written notification to
the Depositary.
2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by
the Depositary of the notification of withdrawal, or on such later date as may be specified in the
notification of withdrawal.
3. Any Party that withdraws from the Convention shall be considered as also having
withdrawn from any protocol to which it is a Party.
Abrogation of a treaty is not listed in the Constitution, but understood[0] to be the President's right, just as it is the Prime Minister's right (see "Crown prerogative") in the UK. As a matter of fact, presidents have done this[1], and by and large it has gone unchallenged, and subsequent Presidents and Congresses have not restored abrogated treaties either.
Arguably the ability to abrogate a treaty is very important, as it balances the ability of a treaty to impose considerably on the laws of the U.S., as the Constitution and the treaties are the supreme law of the land, but treaties do not require anywhere near as much review and approval as Amendments! The President's ability to abrogate a treaty is a safety device that allows quick remediation of unjust/tyrannical/ultimately-undesirable treaties. (Apparently, Congress too can abrogate treaties. See below.)
I would be shocked and surprised if the SCOTUS were to rule that the President cannot alone abrogate a treaty. The Constitution simply says nothing about the topic, and thus it would seem like a political question (that's a term of art meaning: the courts do not meddle) to be decided by Congress and the President, and/or any Constitutional Conventions the States might call. The SCOTUS would have to invent an abrogation method out of thin air in order to rule that POTUS can't alone abrogate a treaty. EDIT: More than that, the SCOTUS would have to then explain whether and why previously abrogated treaties are to be considered restored or not. The SCOTUS doesn't like to be in such sticky situations, even when the majority of Justices might greatly prefer the alternative outcome on the specific policy issue before them.
Assuming the presidential power to abrogate, it doesn't matter what the UNFCC says, if POTUS wants to abrogate it, that's that, and he can either abide or not by the withdrawal process -- once a treaty is officially abrogated, its withdrawal clauses no longer have force on the country in question. The same applies to the Paris accord. Trump could leave effective immediately rather than with the accorded three-year period, and what could the other nations do? In theory they might apply sanctions (EDIT: even go to war!), but in practice it's not currently politically feasible for any significant powers to apply any meaningful, and maybe even merely symbolic, sanctions.
In [1] there is a list of treaties abrogated by the U.S. -- it's a bit out of date now, but not by much. Skimming it on my phone I counted some seven instances (careful with the asterisk'ed one) when the President abrogated a treaty without Congressional approval, once at least in spite of Congress refusing to repudiate the treaty. Another time Congress approved after the fact; I did not count that one. And we have the ABM treaty abrogation to add to that list. And who knows, perhaps soon the UNFCC as well. A number of times Congress has repudiated treaties by resolution, others by law. One treaty was "suspended", but presumably never restored, thus effectively abrogated. None of that even counts treaties that we do not comply with without saying that we won't comply with them (I'm sure there are some, perhaps many, such treaties, mostly out of obsolescence or carelessness).
Given the make-up of Congress at this time, it seems exceedingly unlikely that it would act to prevent abrogation of any treaty by POTUS. Perhaps in 2018, 2020, or later, but not at this time, and for obvious reasons. Given the attempts by the previous POTUS to bind the hands of the current POTUS, I would not be surprised if the next POTUS (if a Democrat) might not attempt to restore by fiat any treaties Trump might abrogate by fiat, but I doubt it. Recall that Clinton did not bother sending Kyoto to the Senate for ratification, and that 96 Senators had indicated their opposition to it -- assuming the Democrats win big in 2020, it's not safe to assume they would restore the ...
There are three types of "treaties," only one of which requires a two-thirds vote by the Senate--the restricted interpretation of treaties in the US constitution, congressional-executive agreements and sole-executive agreements.
"They are all considered treaties under internal law, but are distinct from the perspective of US law."
Treaties has the force of law and are permanent, but can be repealed by an act of Congress... "By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President.[1] Likewise, a sole-executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President."
It's a heck of a lot more complicated than that, mostly because the Constitution says nothing about this topic.
The U.S. has abrogated quite a few treaties[0]. Often it's been by Presidential fiat alone. There is not much case-law on the subject, and it's almost certainly a "political question" that the courts will not go near (lower courts might, but the SCOTUS almost certainly will refuse to decide whether POTUS or Congress can do this alone). Among other things there is the question of who has standing to bring suit, and that's a high enough bar to begin with. The last time the SCOTUS had a chance to say much about this, they said they couldn't[1] (but with only a plurality, not majority, so there is no precedent yet): "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." (the impasse being Congress passing a resolution opposing the President's action, which Congress did not do).
Probably not; I'm pretty sure the accepted interpretation is that binding agreements are forbidden, and paragraph 6 of the MOU between China and California [0] states “This MOU serves only as a record of the Participants' intentions and does not constitute or create any legally binding or enforceable rights or obligations, expressed or implied.” And paragraph 8 states “This MOU is neither a contract nor a treaty”.
Similar non-binding agreements between states (and in some cases subdivisions of states) and foreign countries (or subdivisions thereof) are extremely common, and I don't think anyone in the federal government wants to force them all through federal approval, even leaving aside the legalities.
What an interesting move. Pretty much leaves the federal government no choice but to respond though. The implications of a state contacting a foreign government for policy sets a bad precedence. Regardless of how noble the cause is. In this case it's green energy, but it could have just as easily been fossil fuels.
I really wish California would engage Trump rather than just slam the door shut. There's room for a deal and there's common ground to be found if people actually try. This needless childish behavior is screwing us all over.
Does Trump really seem like the sort of person who can be engaged productively? The needless childish behavior here is coming from the top; routing around the damage appears to be the most productive way of making progress.
Yes, there's room for a deal; that's why California just made one, with China!
I guess I'll ask for an example when California has engaged Trump in respectful conversation... I'm not defending him, I'm just saying I don't see anything happening.
> I really wish California would engage Trump rather than just slam the door shut.
I really wish Trump would engage California rather than just slam the door shut.
> There's room for a deal
Apparently not. Trump's White House, despite Trump personally previously calling for forceful climate action by the US government, now refuses to even say if Trump believes climate change is real, much less whether the President has any interest in doing anything about it, much less what the parameters he would for any climate action are.
> there's common ground to be found if people actually try.
Maybe, but Trump's not trying, and there's people who are. You work with the willing partners you have, not the ones you wish you had.
> This needless childish behavior is screwing us all over.
On this much, if not on which behavior is needless and childish, we agree.
68 comments
[ 4.9 ms ] story [ 137 ms ] thread> Brown later held a closed-door meeting with the Chinese president, Xi Jinping, during which the two pledged to expand trade between California and China with an emphasis on so-called green technologies that could help address climate change, Brown said.
From the Constitution, article 1 section 10:
> No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
There's the out. It may (and will) be argued that climate change is an imminent Danger that will not admit of delay. The associativity of the clauses is just ambiguous enough that the last one can be paired with any of the others, not just engaging in war. And, I am confident there are people in California willing to take that argument to the Supreme Court.
Not well-read on the case law here, but are you sure signing a non-binding pledge qualifies under this section? I would assume it underwent basic vetting by constitutional law experts.
They have determined that it does not cover every agreement or compact:
---------Virginia v. Tennessee 148 U.S. 503 (1893)---------
There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its exhibits to the World's Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that state to obtain the consent of Congress before it could contract with New York for the transportation of the exhibits through that state in that way. If the bordering line of two states should cross some malarious and disease-producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of Congress for the bordering states to agree to unite in draining the district, and thus removing the cause of disease. So, in case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened states could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of Congress, which might not be at the time in session. If, then, the terms "compact" or "agreement" in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?
We can only reply by looking at the object of the constitutional provision and construing the terms "agreement" and "compact" by reference to it. It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubtful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words, and the meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.
Looking at the clause in which the terms "compact" or "agreement" appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.
But what if California actually then goes on to enforce the agreement by forcing, say, utilities to do things which they object to? I suspect the courts would at least demand that California pass a statute in order to accomplish that, and then the fact that an agreement with a foreign power motivated the statute might be of little interest. Who knows! Fun times.
I'm not making an argument for or against the Paris Accord here--it's reasonable to argue that it's only fair to allow developing countries more flexibility under it. But please don't let yourself fall for Chinese propaganda that tries to paint them as altruistic or taking a moral high ground, or most absurdly, as the new "leaders" of the green movement.
But it's easy for China to cheer on the Paris Accord, at least for now. Even though they already produce more emissions per capita than the EU average, they get to increase their emissions without a set limit, while competing European countries axe their emissions in half – and Europe pays China for all this while industry flees into Asia of the ever increasing costs of operation. To me it doesn't sound like a good deal at all with us being in recession for most part of the last decade.
If that was the case, China would be charging ahead with fossil fuels and doing nothing with renewables. But instead it is doing exactly the opposite, canceling hundreds of coal-fired power plants, and installing solar and wind energy at a truly amazing rate. And building up huge industries that will make it hundreds of billions of dollars.
I'd really rather that you didn't put words in my mouth. And the actual risk and necessary responses to climate change are completely orthogonal to the point I was making.
Here's a more critical analysis of China's supposed "green leap forward": https://www.wsj.com/articles/a-green-leap-forward-in-china-w...
But you said: "Of course they want to tie the hands of their major economic competitors." How is that any different than Trump's crackpot theory that global climate change was invented by the Chinese to cripple the US economy? And you don't reject the idea climate change is a hoax, you try to duck the issue by saying it is orthogonal.
In an case, the question today is not why China signed the treaty back then, but it is doing now. As I explained, it is charging ahead with renewables. They are doing this because they are worried about global climate change doing damage to their own country, because coal is causing terrible air pollution problems, and because they see an opportunity to establish a major global industry. Your idea that they are doing it only to divert attention from their human rights abuses is completely cracked.
Oh, and if you are going to post a link supporting your position, it really ought to be one that is not hidden behind a paywall.
Look, there are two stories here.
The conventional story starts with climate scientists discovering that human action is causing the climate getting much warmer, and this being very bad for humans. This in turn leads to a need to switch off of fossil fuels and onto renewable energy, which would after a while be cheaper than conventional energy and so cause no economic harm. The conventional story continues that nations around the world were persuaded, and so they have set on this path, and as part of this signed the Paris Treaty. China is included as believing climate change is real and supporting moving to renewables, and since the Paris Treaty was signed has done this at a very rapid rate. It is also doing this, as I said, because it has very serious air pollution problems, and also wants to make a lot of money selling technology for renewable energy.
Trump and his millions of supporters tell a completely different story. They claim the scientists did not discover human activity is making the world warmer, but this is instead a lie they made up for illegitimate reasons. They claim that renewable energy is vastly more expensive than conventional, and will continue to be so for a very long time. They claim that the Chinese government knows all this, but is pretending to believe it so as to undermine the US economy by driving up its energy costs. And they claim that China is itself making only minor efforts to convert over to renewables, and is basically charging ahead as fast as ever to increase fossil fuel use.
Now everything you have said fits into the Trump crackpot story, and so I am assuming you believe the whole thing. You claim I am wrong, but you never present anything contrary. My best guess is this is because you really do agree with Trump, but don't want to admit it. Or maybe you are just plain confused.
If you really do think differently from Trump, then you need to lay out your whole story of what is really going on, from the beginning.
And be sure to make clear what you think Trump is right or wrong about (you do care, I assume, about whether the most powerful man in the world is right or wrong on this most important issue).
Explanations of reality are not neatly divided into two camps. One can believe that anthropogenic climate change is a major issue worth addressing with vigor, and also believe that the most recent attempts to reach an international accord to that end are terrible for the long term economic and political interests of the West.
I assumed that you believe the Trump position because it is one of the two main ones, and everything you said fit with it. If you agree with the Trump position on some points, but disagree on others, you should have made that clear.
You know, you have a whole set of views on this matter. I am quite puzzled as to why you don't want to lay them all out, like everyone else does.
>One can believe that anthropogenic climate change is a major issue worth addressing with vigor, and also believe that the most recent attempts to reach an international accord to that end are terrible for the long term economic and political interests of the West.
Ok, you are starting to state what you believe, but it is quite incomplete. To start, when you say, "worth addressing with vigor" do you think that means the world should be working now to rapidly switch off of fossil fuels and onto renewables? Or do you believe this is a terrible idea because you think renewable energy is far too expensive and will be for a long time, or for some other reason?
And if you believe that we should not now be rapidly moving off of fossil fuels and onto renewables, then what specific actions should be involved in addressing climate change with vigor?
https://en.wikipedia.org/wiki/Contract_Clause
> No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Foreign policy is reserved for the federal government, is it not?
Not a lawyer, but California may deem the exiting of the Paris agreement at a Federal level imminent Danger to their citizens.
I think it is merely symbolic, as California can accomplish its climate targets voluntarily without any agreements.
This meeting was just to give the finger to the Trump administration and show them that the power is local.
Sounds like a fun Supreme Court case :)
Also, from the article: >Like the Paris accord, the deals are all non-binding. They call for investments in low-carbon energy sources, cooperation on climate research and the commercialization of cleaner technologies.
Which doesn't sound like a Treaty (in the same way the Paris Accord was not a treaty as the US President unilaterally signed the agreement without consent of Congress)
Note that this is an important question. IF the Paris accord is a binding executive agreement authorized by the UNFCC treaty, and if there were no controversy about that (or the U.S. courts found that it is a valid executive agreement and in force), then it would be true that withdrawing from it would be subject to withdrawal clauses. On the other hand, if it is non-binding, and/or subject to ratification by the Senate, then withdrawal clauses cannot be applicable no matter how much European powers claim they must be, at least not as to U.S. law. (Foreign powers might apply sanctions, though that seems unlikely, to enforce withdrawal clauses.)
Of course, POTUS could always abrogate the UNFCC treaty if U.S. courts were to find that the Paris accord is a binding executive agreement not subject to ratification by the Senate, if POTUS found the withdrawal clauses too onerous. POTUS can abrogate treaties unilaterally, without negotiation or approval from either house of Congress or anyone else. Bush abrogated the ABM treaty, you might recall.
The US Senate did ratify the UNFCCC Treaty in 1992
> 10/07/1992 Resolution of advice and consent to ratification agreed to in Senate by Division Vote.[0]
So perhaps yes, the Paris Agreement is binding to the US in the sense that it's parent treaty, the UNFCCC was actually ratified by the Senate, and was not simply an Executive action. If this is the case, we cannot simply end participation in the treaty without being in abrogation of both the Paris agreement, AND the UNFCCC. Please excuse me if I am simply repeating what you're saying.
But Article 25 (pg21) of the UNFCCC states[1]:
>1. At any time after three years from the date on which the Convention has entered into force for a Party, that Party may withdraw from the Convention by giving written notification to the Depositary. 2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal. 3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from any protocol to which it is a Party.
So it's pretty easy to leave...
[0]https://www.congress.gov/treaty-document/102nd-congress/38 [1]https://unfccc.int/resource/docs/convkp/conveng.pdf
Arguably the ability to abrogate a treaty is very important, as it balances the ability of a treaty to impose considerably on the laws of the U.S., as the Constitution and the treaties are the supreme law of the land, but treaties do not require anywhere near as much review and approval as Amendments! The President's ability to abrogate a treaty is a safety device that allows quick remediation of unjust/tyrannical/ultimately-undesirable treaties. (Apparently, Congress too can abrogate treaties. See below.)
I would be shocked and surprised if the SCOTUS were to rule that the President cannot alone abrogate a treaty. The Constitution simply says nothing about the topic, and thus it would seem like a political question (that's a term of art meaning: the courts do not meddle) to be decided by Congress and the President, and/or any Constitutional Conventions the States might call. The SCOTUS would have to invent an abrogation method out of thin air in order to rule that POTUS can't alone abrogate a treaty. EDIT: More than that, the SCOTUS would have to then explain whether and why previously abrogated treaties are to be considered restored or not. The SCOTUS doesn't like to be in such sticky situations, even when the majority of Justices might greatly prefer the alternative outcome on the specific policy issue before them.
Assuming the presidential power to abrogate, it doesn't matter what the UNFCC says, if POTUS wants to abrogate it, that's that, and he can either abide or not by the withdrawal process -- once a treaty is officially abrogated, its withdrawal clauses no longer have force on the country in question. The same applies to the Paris accord. Trump could leave effective immediately rather than with the accorded three-year period, and what could the other nations do? In theory they might apply sanctions (EDIT: even go to war!), but in practice it's not currently politically feasible for any significant powers to apply any meaningful, and maybe even merely symbolic, sanctions.
In [1] there is a list of treaties abrogated by the U.S. -- it's a bit out of date now, but not by much. Skimming it on my phone I counted some seven instances (careful with the asterisk'ed one) when the President abrogated a treaty without Congressional approval, once at least in spite of Congress refusing to repudiate the treaty. Another time Congress approved after the fact; I did not count that one. And we have the ABM treaty abrogation to add to that list. And who knows, perhaps soon the UNFCC as well. A number of times Congress has repudiated treaties by resolution, others by law. One treaty was "suspended", but presumably never restored, thus effectively abrogated. None of that even counts treaties that we do not comply with without saying that we won't comply with them (I'm sure there are some, perhaps many, such treaties, mostly out of obsolescence or carelessness).
Given the make-up of Congress at this time, it seems exceedingly unlikely that it would act to prevent abrogation of any treaty by POTUS. Perhaps in 2018, 2020, or later, but not at this time, and for obvious reasons. Given the attempts by the previous POTUS to bind the hands of the current POTUS, I would not be surprised if the next POTUS (if a Democrat) might not attempt to restore by fiat any treaties Trump might abrogate by fiat, but I doubt it. Recall that Clinton did not bother sending Kyoto to the Senate for ratification, and that 96 Senators had indicated their opposition to it -- assuming the Democrats win big in 2020, it's not safe to assume they would restore the ...
"They are all considered treaties under internal law, but are distinct from the perspective of US law."
Treaties has the force of law and are permanent, but can be repealed by an act of Congress... "By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President.[1] Likewise, a sole-executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President."
https://en.wikipedia.org/wiki/Treaty_Clause
The U.S. has abrogated quite a few treaties[0]. Often it's been by Presidential fiat alone. There is not much case-law on the subject, and it's almost certainly a "political question" that the courts will not go near (lower courts might, but the SCOTUS almost certainly will refuse to decide whether POTUS or Congress can do this alone). Among other things there is the question of who has standing to bring suit, and that's a high enough bar to begin with. The last time the SCOTUS had a chance to say much about this, they said they couldn't[1] (but with only a plurality, not majority, so there is no precedent yet): "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." (the impasse being Congress passing a resolution opposing the President's action, which Congress did not do).
[0] http://www.ea.sinica.edu.tw/QDown.ashx?ID=5563 [1] http://caselaw.findlaw.com/us-supreme-court/444/996.html
Similar non-binding agreements between states (and in some cases subdivisions of states) and foreign countries (or subdivisions thereof) are extremely common, and I don't think anyone in the federal government wants to force them all through federal approval, even leaving aside the legalities.
[0] https://www.gov.ca.gov/news.php?id=19832
Yes, there's room for a deal; that's why California just made one, with China!
I really wish Trump would engage California rather than just slam the door shut.
> There's room for a deal
Apparently not. Trump's White House, despite Trump personally previously calling for forceful climate action by the US government, now refuses to even say if Trump believes climate change is real, much less whether the President has any interest in doing anything about it, much less what the parameters he would for any climate action are.
> there's common ground to be found if people actually try.
Maybe, but Trump's not trying, and there's people who are. You work with the willing partners you have, not the ones you wish you had.
> This needless childish behavior is screwing us all over.
On this much, if not on which behavior is needless and childish, we agree.
What has Trump said that indicates he might be interested in a deal?