Kyoto II: Whose “power to tax”?

by Christopher C. Horner

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James Sensnbrenner (R-WI), Ranking Republican on the House’s Select Committee on Energy Independence and Global Warming (really), issued a warning last week about Kyoto II. The proposal is being tugged by that vast majority of the world, rejecting its constraints, but demanding, at present count, $140 billion per year from U.S. taxpayers in atonement for past, present and future damage from weather which our government now says is our fault.  It includes this gem from leading Kyoto free-rider (in perpetuity), major greenhouse gas emitter India:

India’s government says that the West owes billions of dollars to developing nations to compensate for climate change. In its submission to the United Nations Framework Convention on Climate Change, the Indian government argued that this funding should be a legal obligation that ‘cannot be subject to decisions of developed country governments or legislatures.

Oh, dear. Re-read that demand. Such an entanglement would, of course, be problematic. Barring further surprises from the current Supreme Court, we have to assume it surely would be found unconstitutional. For example, from Jeremy Rabkin’s recent talk to Hillsdale College reprinted in the July/August Imprimis:

The Constitution provides for treaties, and even specifies that treaties will be ‘the supreme Law of the Land’; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution—that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: ‘A treaty cannot change the frame of the government.’ And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned.

Such notions are, however, considered quaint by many in our current governing class, which Rabkin also touches upon in his piece. But the recent Nobel inanity was surely in part an effort to herd an occasionally reluctant Obama administration back toward the internationalist fold by December, when we are expected to agree to Kyoto II.

As I have written elsewhere, that December deadline will surely slip (even in part possibly to avoid having whatever is done subject to the intense media attention accompanying each year’s talks), and it remains an option to simply declare that this treaty is “not a treaty” in order to avoid the Constitution’s requirement of two-thirds Senate ratification.

All of which says you needd to commit to vigilance on this issue, as batty as it generally comes across. Because the consequences are serious.


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Posted Oct 12th 2009 at 9:11 am in Congress, Environment | 36 Comments