The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In his speech at the global climate change conference in Paris, President Obama made it clear that he would like to reach an international agreement that would mitigate the harmful effects of climate change, with each nation binding itself to targets to reduce carbon emissions. What was missing from his speech (and elsewhere) was an acknowledgement that to be binding on the United States any such agreement would need to be in the form of either an executive agreement that would require the approval of both houses of Congress, or a treaty, which would require a positive vote from two-thirds of the Senate. It's very unlikely that either of these things would be forthcoming from the Republican-controlled Congress.
So the president may agree to a treaty that's not really a treaty. But what power has he to agree to bind the United States to something without Congress's assent? Jonathan Tobin of Commentary remarks, "If a climate treaty that is not called a treaty, but which will place the U.S. under these kinds of onerous obligations is put into effect without even the fig leaf of an approval process, then we will have truly taken a step toward a kind of presidential government that is utterly alien to the model of representative democracy that is the foundation of the American constitutional system. . . . Let's concede that any deal rammed through in this manner won't have the force of law and can be ignored or rejected by Obama's successor. But if we allow this precedent to pass unnoticed, we will be merely reinforcing a new reality in which the whims of any president will be sovereign rather than the rule of law."
Which raises the question of Obama's motivation. Surely, in part, Obama sincerely believes that climate change is a huge threat to civilization, and therefore wants to do anything in his power, or even anything he can get away with that's beyond his power, to help stop it.
But climate change (see also the Environmental Protection Agency's creative, but legally dubious, rules on carbon emissions) is hardly the only area where Obama has preferred to govern unilaterally. Most likely, the president also feels justified in expanding presidential power because he is contemptuous of congressional Republicans, whom he believes are extremists unwilling to cooperate with him even when they know failing to do so will harm the country. But don't take my word for it; Obama administration Defense Secretary Leon Panetta has explained that Obama sees congressional Republicans as "people that simply won't-don't wanna do the right thing for the country." Panetta expressed regret at Obama's failure to work with the GOP and added, "Well, the reality is, if you wanna govern in this country, you have to deal with people you don't like."
The president's unilateralism was most surprising when it came to bombing Libya in 2011. Obama told the Boston Globe in December 2007, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Future vice president Joe Biden and future Secretary of State Hillary Clinton, both running for president at the time, gave similar answers to the Globe.
No one, including the president, was bold or foolish enough to argue that the fighting in Libya, or the Libyan government itself, posed an imminent threat to the United States. The best the Obama administration could come up with was that the use of military force in Libya would prevent instability in the Middle East (ha!) and preserve the credibility and effectiveness of the United Nations Security Council.
So the president went back on his own statement and used military force in Libya in the absence of an imminent threat without asking for congressional assent. Worse, he did so over the objections of his own lawyers at the Office of Legal Counsel and the Defense Department, who told him he needed to coordinate with Congress as required by the War Powers Resolution. Bizarrely, the one administration lawyer willing to opine that the WPR did not apply was State Department Legal Adviser Harold Koh—the same Harold Koh who made his academic reputation opposing presidential unilateralism in foreign affairs. Indeed, the same Harold Koh who had criticized Congress for not challenging President Ronald Reagan's failure to invoke the WPR before bombing Libya in April 1986. In that operation, American war planes penetrated Libyan airspace for all of 12 minutes.
So what exactly is going on here? Here's where the tie to climate change comes in: The administration is indulging in a form of liberal internationalism that seeks to subordinate adherence to the American Constitution, its separation of powers, and the laws enacted under it to what its advocates consider the much more important values of international cooperation and humanitarianism, which may be undertaken efficiently and efficaciously only by a strong executive.
As I explain in more detail in my new book, "Lawless," the Libyan intervention was exactly the sort of war that liberal internationalists could love. First, the war had the implicit backing of the United Nations, as the U.N. Security Council had unanimously passed a resolution establishing a no-fly zone over Libya. It also had the backing of the Arab League, which also endorsed a no-fly zone. Second, there was no discernible American strategic interest in intervening in Libya, and American intervention was justified primarily as a humanitarian mission that would shore up the U.N.'s authority. Finally, the United States did not act unilaterally in Libya, but acted through NATO and in alliance with Qatar. As NATO, and not the U.S. military, took control of the operation, an anonymous Obama administration official proudly described the president's strategy as "leading from behind."
The idea that the pursuit of international cooperation should take precedence over the "parochialism" of the U.S. Constitution is not exactly novel. Recall that Harry Truman got the United States involved in an unpopular, horrific war on the Korean peninsula based on a vote of the U.N. Security Council, but without a vote of Congress. And recall, too, progressive rhetoric from the days of Woodrow Wilson and beyond that ultimately some sort of world governing body is necessary lest the nations of the world destroy themselves via total war. The adjunct to this position has been that the U.S. needs to give up its reactionary notions of sovereignty and constitutionalism for the greater good of humanity.
This is not an inherently implausible idea, and, though I vehemently disagree with it, it's surely one that could be adopted by intelligent people of goodwill. But it also happens to be one that conflicts with the president's oath to preserve, protect and defend the Constitution of the United States. He takes no similar oath to protect the credibility of the U.N. Security Council, to stop climate change, or even to preserve America's standing in the global community. If these perceived obligations are going to take precedence over more mundane and traditional notions of the separation of powers, this should at the very least be championed more explicitly, so a public debate might ensue.