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Obama Wants a ‘Legally Binding’ Climate Change Agreement. Can He Do That Without Congress?

   DailyWire.com

President Barack Obama, who has proven time and again that he doesn’t care about the Constitution, wants a “legally binding” climate change agreement without Congress. But Obama cannot legally do that.

The Associated Press reports that Obama knows that the Republican Senate will not pass any treaty submitted to them, so he instead wants certain parts of the agreement to be legally binding, chiefly “periodic reviews” to see if countries are adhering to the carbon-reduction goals they have set for themselves.

But unless the agreement is ratified by the Senate, none of it is legally binding.

The treaty clause, located in Article II, Section 2, Clause 2 of the Constitution, reads, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”

When the Senate passed the infamous Corker bill, Sen. John McCain told The Daily Caller that the Senate could not take up the Iran nuclear deal because Obama was not going to submit it to the Senate as a treaty.

“The Congress cannot designate it as a treaty. Ask a Constitutional scholar. We cannot call an agreement a treaty,” McCain said. “The administration has to call it a treaty. Ask anyone who is an expert on the Constitution.”

Radio host Mark Levin, himself a constitutional scholar, excoriated McCain’s inaccurate claim:

“Reading is fundamental and John McCain doesn’t know how to read the constitution,” Levin told The Daily Caller. “The treaty power belongs to the Senate. The president doesn’t get to designate whether the Senate is involved in the treaty process or not. The Senate has independent power to make that determination.”

Levin explained, “And John McCain voted to surrender that power to Obama. Otherwise, why bother to have a vote at all on the Corker bill? The Senate could have taken up this agreement as a treaty and had a full debate on the Senate floor and involve the entire nation on what’s taking place and the Senate either ratifies or does not ratify.”

“If two-thirds of the Senators present vote ‘yes,’ it’s ratified. If two-thirds do not, it’s not ratified. The president simply cannot designate that he has negotiated as something that it is not and then the Senate simply abide by a president’s declaration,” Levin said. “I would suggest that Senator McCain take A few moments off from his appearances on Cable TV to read the history of the treaties clause of the Constitution.”

The same would apply to any climate change agreement that Obama agrees to. The Senate can take it up as a treaty and vote whether or not to ratify it regardless of what Obama wants. A treaty cannot be ratified without 2/3 of the Senate agreeing it to it.

Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University School of Law, told The Heartland Institute, “The President lacks the authority to impose any legally binding constraints without congressional approval, either in the form of legislation or Senate ratification of a valid treaty. With or without such a treaty, the only legally binding limits on greenhouse gas emissions will be those adopted pursuant to the EPA’s existing Clean Air Act authority.”

The AP cites former U.S. climate negotiator Nigel Purvis in saying that Obama has the “legislative authority” to enter a climate agreement thanks to a treaty ratified in 1992 under then-President George H.W. Bush. But that treaty involved voluntary carbon reductions, so it’s not a valid comparison.

“The President lacks the authority to impose any legally binding constraints without congressional approval, either in the form of legislation or Senate ratification of a valid treaty.

Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University School of Law

When President Bill Clinton signed onto the Kyoto Protocol in 1997, he never submitted it to the Senate because he knew it wouldn’t be ratified, as the Senate had previously passed a resolution 95-0 against Kyoto. Thus it did not have the force of law, which is why President George W. Bush did not enforce it under his administration.

Obama cannot make any part of a climate agreement “legally binding” without the Senate’s approval. But Obama has never cared about the law.

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