Power Derives from Lawful Authority

The President of the United States has no more legal right to sign a treaty that turns legislative, executive, and judicial functions of our national government over to the United Nations than he has to declare the United States an Islamic Republic and its people henceforward subject to Sharia. Nevertheless, that would be the effect of the proposed United Nations Climate Change Treaty awaiting Mr. Obama's signature in Copenhagen this coming December.

The proposed treaty authorizes the establishment of a "government" to transfer wealth from industrial nations to non-industrial nations in payment of a "climate debt" which, the treaty declares, the industrial nations owe on account of burning carbon-based fuels. The newly created international government is to have the authority to decide issues relating to carbon emissions in signatory nations, the power to levy what amounts to carbon taxes on signatory nations, and the power to enforce its levies without reference to the will of the people who live in the signatory nations.

Thus, the proposed Climate Change Treaty demands that:

  • An unelected international government is to be established without the American people voting on its establishment or membership;
  • The unelected international government is to have authority to legislate how much and what kind of carbon-based activity Americans may engage in before they will be taxed on such activity;
  • The unelected international government is to have authority to decide the amount of taxes Americans must pay for carbon-based activities, determine the people to whom the taxes will be given, and decide how those people will spend the taxes -- and none of those activities will be subject to presidential veto, congressional oversight, or review by the federal Judiciary, much less a vote by the American people;
  • If the American people fail to abide by the legislative edicts of the unelected international government, they will be subject to international enforcement proceedings that are alien to our constitutional ideas of due process, equal protection, personal freedom, and property rights.

So, given what the treaty portends, the obvious question is, does it pass constitutional muster? Well, the answer to that question is two-pronged. First, there is the pragmatist's answer, which is that anything the Supreme Court says is constitutionally permissible is constitutionally permissible unless and until a later Supreme Court says otherwise. But then there is the answer that is rooted in American constitutional history, which is that no President, even with the advice and consent of the Senate, has the power to delegate legislative, executive, or judicial authority to any body in derogation of the manner in which such authority is granted by the United States Constitution.

The power of the President to enter into treaties on behalf of the United States is granted under Article II of the Constitution[1]. Under Article VI, the "Constitution, and the Laws of the United States ... and all Treaties made ... under the Authority of the United States, shall be the supreme Law of the Land ..." Thus, every lawful treaty signed by the President and consented to by the Senate becomes the equivalent of federal statutory law under our constitutional system of government[2].

Like federal laws, treaties are subject to judicial scrutiny. In assessing treaties, federal courts are required to determine whether and to what extent they are lawful. To use the language of Article VI, a treaty will be deemed lawful only if it is "made ... under the Authority of the United States." Any other kind of treaty is impermissible under our Constitution.

So, what does it mean to make a treaty "under the Authority of the United States?" Obviously, it means that the President must sign the treaty and a majority of a quorum of the Senate must consent to it. But a treaty made "under the Authority of the United States" necessarily means more than that. A presidential signature and senatorial ratification is merely the process by which a treaty takes on the outward garments of lawfulness. The substance of the treaty must also be lawful.

In the United States we have a tripartite system of government. Our Constitution vests executive power in the Presidency, legislative power in the Congress, and juridical power in the federal Judiciary. To be lawful under our Constitution, a treaty may not impinge on the constitutional grant of powers to the President, to Congress, or to the Judiciary. So with that in mind, I offer the following thoughts about the proposed Climate Change Treaty:

  • An unelected international government may be established without the American people voting on its establishment and membership, but such a government cannot lawfully displace the constitutionally established government of the United States;
  • An unelected international government may not legislate how much carbon-based domestic activity Americans can engage in before they will be taxed, because under the Constitution the power to legislate is granted exclusively to Congress;
  • An unelected international government has no plenary authority to levy a tax on the American people for engaging in carbon-based domestic activities, because under the Constitution the power to tax the American people is granted exclusively to Congress;
  • An unelected international government may not oust the federal judiciary from its jurisdiction over the American people's domestic energy activities, because under the Constitution the authority to enforce laws pertaining to such activities is granted exclusively to the Judiciary of the United States, which alone has the power and responsibility to uphold our federal constitutional rights and enforce laws that are national in scope.

Now, while the foregoing analysis doesn't purport to be a fully elaborated piece of legal research, it does find support in various Supreme Court cases. One of them is the 1935 decision in A.L.A. Schechters Poultry Corporation v. United States, in which the Supreme Court declared Franklin Roosevelt's National Industrial Recovery Act unconstitutional. The court's opinion in that case is lengthy and its reasoning complex, but a couple of useful insights can be gleaned from its decision. The court wrote:

  • "The ... powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary."
  • "The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States' (and the) ... Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested [3]."

Unfortunately, like most legal matters, these rules of constitutional interpretation seem self-evident, but when they are applied to the facts of a particular case, they begin to look about as clear as mud. Thus, in Schecters, the Supreme Court noted that federal courts do not deny Congress "the necessary resources of flexibility and practicality" to "enable it to perform its function in laying down policies and establishing standards." Congress, said the court, may leave to "selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply." However, "if our constitutional system is to be maintained," then Congress "cannot be allowed to obscure the limitations of the authority to delegate." In each instance, the court said, the judiciary will "look to the statute [here, the treaty] to see whether Congress has overstepped these limitations."

So, in the end, the question is whether the 200+ page Climate Change Treaty oversteps the constitutional limitations on the delegation of powers that are allocated to the various branches of our federal government. I believe that it does, but we can find out for certain only by a vote of five or more members of the United States Supreme Court. That's not much of a safety net for the preservation of America's constitutional democracy, but it wouldn't be the first time that the Supreme Court has operated as a check on the extra-constitutional exercise of power by a President of the United States.

In the meantime, don't forget to hold your Senators' feet to the fire on this issue. We don't need another national trauma, and we can avoid one by making sure our Senators withhold their consent to the proposed Climate Change Treaty, if and when Mr. Obama signs and submits it.

Jed Gladstein is an attorney, author, educator and professional speaker.

[1] Article II also requires the President to secure the advice and consent of two-thirds of a quorum of the Senate to enter into a treaty, but given the propensity of today's Democrats in Congress to change locks on Capitol Hill hearing rooms, scurry out back doors to avoid debating legislative issues, and hold secret meetings concerning pending legislation, one wonders whether every member of the Senate will actually have the opportunity to show up and be heard when Mr. Obama's treaties are being considered.

[2] It is important to realize that under the plain language of Article VI, lawful treaties are given the same status as the Constitution and laws of the United States, not a superior status. Any other understanding of Article VI would allow a President, acting in cahoots with two-thirds of a quorum of the Senate, to destroy our constitutional system of government with the stroke of a pen. That is certainly not what our Founders intended, and it is devoutly to be hoped that there will never be a time when five or more members of the United States Supreme Court think otherwise.

[3] The same constitutional reasoning applies to the executive and judicial branches of government, which are also forbidden to abdicate or delegate their essential constitutional responsibilities.

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