Kyoto II, the Obama Administration and the Constitution

by Christopher C. Horner

I have one item of suggested reading before passing judgment on the occasionally strident internet-sensation that is the commentary by Lord Monckton on the draft negotiating text for an anticipated U.S. signature in December — certain to be delayed, to July — on a successor to the Kyoto Protocol (discussed with Monckton on BreitbartTV here). That instrument is of course the “global treaty” assigning economically damaging responsibilities to 35 industrialized countries (the titans Iceland, Luxembourg, Slovenia, Slovakia…) but not 155 others (such as tiny China, India, Mexico, South Korea, Brazil, Indonesia…) .

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The reason I suggest this is because one of the more hot-button items Monckton raises, the Kyotophile desire to get around at least half of the allegedly out-dated concept of Article II “advice and consent”, has, despite certain parties insisting that Monckton’s commentary offers nothing of interest…move along now…for more than a year been telegraphed by Obamaphile activists. It was even alluded to in a paper by someone who now carries the title of our nation’s “Climate Envoy” (really). And now the Obama administration is reported to have briefed European diplomats to be ready to accommodate certain delays and procedures that this would require.

First, allow me to note one particular, relevant specific on which I differ with Lord Monckton’s assessment. That is the notion that the administration would just adopt Kyoto through domestic legislation. He may just be short-handing it here, which if so, I understand, but it is important to get the specifics on the record. It is of course the point of the Waxman-Markey and Kerry-Boxer cap-and-trade bills to adopt Kyoto’s principal obligation of carbon dioxide emission reduction, though these bills’ only international components are direct and indirect wealth transfers of a few billion dollars a year to other countries. There are no substantive sovereignty implications, outside of certain energy security concerns.

But an international agreement, to be adopted, must be adopted in agreement form. That is not to suggest there are no end-runs around the Constitution’s two-thirds vote requirement. In fact, it is precisely because that is possible, and it is the express intention of several in the global warming advocacy industry close to this administration, that I recommend this read.

It is my essay in the February “Engage” of the Federalist Society, which walks through these claims in detail and assesses their rather feeble merits. The short version of the “circumventists’” argument is that Kyoto has proved that the Constitution is no longer functioning as intended, in that the Senate refused to ratify a signed treaty … signed by an administration which went rogue in ignoring unanimous Article II “advice” to not sign it. (Media ignorance or revisionism notwithstanding, George W. Bush “refused to sign Kyoto” much like he refused to sign the Treaty of Versailles and finally put an end to the horrors of World War I).

They also say, in the alternative, that the Constitution was never intended to require that sort of assent for this sort of obligation, just so you know what sort of artifice you are dealing with here.

But of course that rogue administration is gone, and so any constitutional dysfunction that existed departed with them. The real point is, as one outside advisor to the administration argues, it is simply not conceivable to get two-thirds approval for the sort of things that the Kyoto agenda has in mind. So the solution is not to disband with the Kyoto agenda, but with the requirement of two-thirds approval. To do so requires, as Monckton indicates, declaring that the treaty between nations entailing significant obligations for our economy, national security and sovereignty is, well, just not a treaty. But it does still require adopting an agreement between nations.

Just how to do so without ratification is not without precedent. Indeed, the demanded “congressional-executive agreement” has substantial precedent. For example, without otherwise comparing an instrument of economic liberalization and one with absolutely nothing to do with such things, NAFTA is a treaty that Congress, with a 50-percent-plus-one (percent) in both houses, declared was in essence not a treaty. This is actually common practice in the trade realm.

Congress and the executive do this by effectively waiving Article II ratification, with Congress telling the administration broadly what it should (but, importantly, not what it shall) try and forge, vowing that the vote on whatever emerges will be an up-or-down one. The threat here, indeed the circumvention, is that this “fast track” approach agrees in advance to a no amendment, no filibuster procedure on the final pact, which itself also needs just a bicameral 50-percent-plus-one. The only opportunity to ensure you block it, and the only chance to filibuster, is at the first vote on whether to grant this “fast track” authority.

I have written about this development on several occasions, including here and here. As I have found myself telling these people in response to histrionics over opponents invoking the term “global governance”, and the like: if you want us to stop talking about these things, tell Al Gore and Jacques Chirac, for example, to stop telling us that they are what you seek through Kyoto. The same holds true for getting around the Constitution. Stop saying that’s what you have in mind and we’ll happily stop pointing out to others that you do.


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Posted Oct 26th 2009 at 7:30 am in Environment, Justice/Legal, Politics | 20 Comments