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03/16/2016

FIU Conference on Executive Power
Michael Ramsey

Last Friday I participated in  conference on executive power at Florida International University Law School, at the invitation of Elizabeth Price Foley and the FIU Law Review.  It included a number of people who are regularly featured on this blog, including David Bernstein, Jonathan Adler, Brannon Denning, Lee Strang and Josh Blackman. Here's the video, via Professor Blackman, who had a memorable presentation.

My talk was on nonbinding international agreements, with focus on the Iran nuclear deal and the Paris Climate Accord.  My thoughts in the area are increasingly focused on the following points:

(1) Purely nonbinding agreements are a presidential power.  They are adequately limited because they are not supreme law of the land domestically or binding in international law; therefore they cannot be enforced within the U.S. and they can be repudiated by the next President (or even the current President if he changes his mind) without violating any law.

(2) Binding agreements that contain nonbinding goals are more problematic.  Although the President has independent power to make binding low-level agreements such as claims settlements, a long-term high-profile commitment is what the framers understood as a treaty, requiring two-thirds approval of the Senate.  The fact that the agreement's material goals are nonbinding does not allow the Senate to be bypassed, because the U.S. is still taking on a material binding commitment to pursue the goals (even if not committing to meeting them at any particular time).

(3) Based on #1, the Iran deal is generally within the President's authority, with two significant reservations.  (a) The President has a constitutional obligation to assure that any nonbinding agreement is clearly and unequivocally nonbinding, and the all parties understand the implications of that (lest he inadvertently commit the U.S. to a binding deal).  It's not clear that the President met this standard with respect to the Iran deal. (b) It seems problematic for the President to make a nonbinding commitment for the U.S. to take a specific action at a determinate time after that President will have left office.  (I used the hypothetical example of the President giving Cuba a nonbinding commitment that the U.S. will leave Guantanamo in 2020).  I remain unsure whether this is a constitutional problem or just a bad idea.

(4) Based on #2, the Paris accord is constitutionally problematic.  As I've discussed here and here, it commits the U.S. to the (binding) general goal of lowered carbon emissions, even if it doesn't provide any binding targets.  That seems sufficiently material to take it out of the category of nontreaty agreements the President can make on independent authority.  Thus it should be approved as a treaty.