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Trump Diffuses Constitutional Crisis by Leaving Paris Treaty

Trump Diffuses Constitutional Crisis by Leaving Paris Treaty

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by Ken Klukowski

President Donald Trump’s decision on Thursday to leave the Paris Agreement may have saved the federal government from an embarrassing court defeat, because there is a serious constitutional argument that the agreement was unconstitutional unless ratified by the Senate as a treaty.

Approximately 175 nations have signed the Paris Agreement, which was written under the auspices of the United Nations. Former Secretary of State John Kerry signed the Paris Agreement on behalf of President Barack Obama on April 22, 2016. It is indistinguishable from numerous UN treaties that the United States has formally joined.

Article II of the Constitution provides that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur.”

But if the Paris Agreement is a treaty, it must be both signed by the president and ratified by the required supermajority of the Senate. Otherwise, because Article VI says that treaties are part of the Supreme Law of the Land, it raises the disturbing possibility of a president exercising unchecked control over the nation regarding some important issue.

Recent years have seen the proliferation of executive agreements: formal agreements between the United States and other countries, defining the rights and obligations of all the signatories regarding their conduct with each other. Some of them appear to be treaties by another name.

Presidents have vast power under the Constitution to conduct foreign policy. As such, presidents have regularly entered into various sorts of arrangements with other nations. These executive agreements are commonplace.

It is an unresolved question of constitutional law how much power a president can exert through such agreements before he must get Senate approval. The Supreme Court has never invalidated a president’s signature by holding that a particular international compact was a treaty that cannot take legal effect until ratified by the Senate.

For example, in 1979, the Supreme Court held in Goldwater v. Carter that President Jimmy Carter had unilateral authority to withdraw the United States from the Sino-American Mutual Defense Treaty, rejecting a legal challenge brought by Senator Barry Goldwater and other congressional members.

But there is an important rule of constitutional law called the canon of antisuperfluity (or canon against surplusage), which despite its cumbersome name, means simply that every single word of the Constitution, or lesser laws, should be given legal effect unless their context clearly shows they have no meaning.

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Shorty Dawkins



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