President Obama “is working to forge a sweeping international climate change agreement” but “without ratification from Congress,” the New York Times reports. Yet the U.S. Constitution provides that two-thirds of the Senate must consent to an agreement in order for it to be a valid treaty. So the Times reports that Obama’s goal is a “hybrid agreement” that blends “legally binding conditions from an existing 1992 treaty with new voluntary pledges.” Somehow, countries would be legally required to make emission cuts that would also be voluntary. Not a treaty, but a treaty-ish.
The political reaction is predictable. Senate Minority Leader Mitch McConnell told the Times that Obama once again is circumventing Congress. From the right, the new proposal fits a pattern of “domestic Caesarism”—using executive power to implement policies rejected by Congress. The complaint is sweeping, from this proposal about climate regulation to health care and immigration enforcement. By contrast, Harvard professor Jack Goldsmith points out that the president cannot enter a treaty on his own. He can make agreements with foreign leaders until he is blue in the face, but those agreements can’t force a reduction in U.S. emissions unless Congress passes a law saying so. Goldsmith sees the president’s action as symbolic, a way to stake out a legacy and inspire his base. So which is it, gauzy PR or yet another step toward dictatorship?