Constitutional Chutzpah

There are three ways something can become what the US Constitution calls the “supreme law of the land.” It can be made part of the Constitution by amendment, it can be passed by Congress as a law or it can be ratified by the Senate as a treaty. President Obama can’t get his climate-change agreement made supreme law of the land by any of those constitutional routes. Not even close. The Republican House doesn’t want it. The Democratic Senate won’t act. That’s because the people don’t want it. They’re no dummies.Even in drought-stricken California, the Hill newspaper reports, Democratic candidates for Congress avoid the climate-change issue. This is driving Obama crazy. According to a bombshell New York Times report, the president’s “climate-change negotiators” have grown “desperate.” The paper reports they fear “repeating the failure of Kyoto.” That was the big giveaway UN treaty attempted in the 1990s. The Senate wouldn’t go near it. So a generation later, the Times reports, Obama is trying to evade the Senate and cut a deal on global warming without the democratic niceties.This is a case of constitutional chutzpah. The Times says Obama is “working to forge a sweeping international climate-change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.” The Constitution permits a president to enter into a legally binding treaty only, as the Times puts it, “if it is approved by a two-thirds majority of the Senate” — but Obama’s negotiators want to “sidestep that requirement.” To do so, they’re “devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.”The Times predicts that the deal is likely to face “strong objections” from Republicans on Capitol Hill. Not only Republicans. It turns out that “poor countries around the world” also object to the scheme. Obsession with climate change is a rich country’s game; poor nations would rather become rich — and have to burn lots of coal to do it.Obama’s negotiators are saying that end-running the Senate may be the “only realistic path.” Is “realistic” the best word to use for a conspiracy to evade one of the most fundamental checks and balances in the American system?I like the way Abraham Lincoln put it: You can’t fool all of the people all of the time.That’s what the Obama administration is trying to do. It’s hard to think of a precedent. In recent years it has grown apparent that our country is in what I like to call a “constitutional moment,” and this example is a humdinger. Presidents are perfectly entitled to sign treaties that haven’t been approved by the Senate. That’s part of the process. They ink all sorts of sketchy stuff, but it can’t become binding as supreme law of the land until it gets through the Senate.The Senate gives it a chance to simmer. Hearings are held. People with interests get to testify. The Senate is where the states, key parties in the American contract, get their say. Sometimes, treaties don’t get ratified and are laid aside. This happened to the Strategic Arms Limitation Treaty known as SALT II. President Carter signed it, but the Senate didn’t trust the Soviet boss at the time, Leonid Brezhnev, nor anyone else in the Kremlin camarilla. So it refused to ratify the treaty. No one was the worse for wear.America worked for years on the Law of the Sea Treaty, a vast giveaway of oceanic wealth that we had the best technology to exploit, but the measure didn’t get to first base in the Senate, either. There are still politicians and diplomats and lawyers out there hoping to persuade the Senate to act. Fair enough. I wouldn’t ratify the Law of the Sea Treaty for all the sardines in the ocean. But trying to convince the Senate is fair enough. If it’s one thing to try to persuade the Senate, it’s another thing to take a treaty that the Senate is so clearly unwilling to ratify, as with global warming, and enter into a conspiracy to dodge the Senate and evade the Constitution — a document that every public official in our country is sworn to support.This column was first issued in the New York Post.

Constitutional Chutzpah

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