The Paris Agreement Is a Treaty. Treat It as Such.

By Ian Tuttle

Thursday, June 01, 2017

President Trump is, apparently, mulling what to do about the Paris climate accords. Opinion among White House advisers reportedly is split: Steve Bannon wants to leave, as does EPA administrator Scott Pruitt; Ivanka wants to stay, and so does Secretary of State Rex Tillerson. The president has said that he will announce his decision soon.

There remains considerable debate about the merits of the climate agreement. It is far from clear whether it will have a significant effect on projected rates of global warming, given that key signatories (namely, China and India) made only nominal carbon-reduction commitments; the agreement’s usefulness as a diplomatic tool is uncertain; and it may have a retardant effect on domestic economic growth.

But wherever the president and his team ultimately fall on those questions, one thing should be clear: The final determination ought to be up to the U.S. Senate.

The first reason is straightforward: The Paris Agreement is a treaty. President Obama, aware that the accord would struggle to meet the two-thirds threshold required by the Constitution’s Treaty Clause (Article II, Section 2), engaged in extravagant rhetorical contortions to avoid calling the Paris Agreement what it was. President Trump could send a clear signal about the limits of presidential power by delivering the accords to the Senate for “advice and consent.” As James Wilson, a key Founding-era political thinker and a delegate to the Constitutional Convention, explained: “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.”

President Obama’s unwillingness to put the Paris Agreement before the Senate was revealing, though, for reasons other than the short-term political calculation. The president did not believe that he could persuade enough legislators to support his plan — even though “the science is settled” on climate change, and “97 percent of scientists agree,” as he liked to say. Accusing the Republican majority of “anti-science” boobery, he signaled his belief that addressing climate change was too important to be left to traditional democratic mechanisms. “We the people,” acting through our representatives, could not be trusted with something so momentous.

What the president did — as on the Iran nuclear agreement (another non-treaty treaty) and other acts of executive overreach — was to “depoliticize” the issue, taking the power to adjudicate the issue away from the voters and their representatives and investing it instead in the hands of a small coterie of supposed experts. Policy made by the Congress is accountable to voters; policy made by the U.N. Intergovernmental Panel on Climate Change isn’t.

If we are in a moment of populist revolt, it is in part because the last generation of political leaders have preferred to remove certain hot-button issues from the public forum rather than subject them to popular scrutiny. This is true on both sides of the Atlantic. The Obama administration’s unfailing confidence in technocrats to “solve” political puzzles – for instance, employing wonks such as MIT’s Jonathan Gruber to erect a “rational” health-care system — is the same confidence that has animated European Union bureaucrats and that characterizes the neophyte Macron administration in France. It has left ordinary citizens disempowered, stripped of opportunities to express and enact their policy preferences.

Donald Trump spent 2016 hammering the “elites” who develop public policy tailored to their own interests and unresponsive to the needs of most citizens, especially those living outside the country’s metropolitan hubs of power. His populism may have swerved, with distressing frequency, into demagoguery, but he nonetheless exposed a serious problem: Too many issues have been cordoned off from public adjudication and entrusted to unaccountable cliques that purport to know better how to run people’s lives than the people do themselves.

Obviously, our constitutional structure is designed to prevent a tyrannical rule of the majority; not everything ought to be subject to plebiscite. Likewise, there is a place for experts; their input is valuable, if not necessarily decisive.

But there is a need to “repoliticize” central questions in our politics. The sense that a democratic politics is legitimate is strengthened when citizens know they have a role in political decision-making. Restoring that role is not only in the current administration’s best interests; it’s in the country’s.