Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.
One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.
A Method to His Double-Dealing Madness
Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.
But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.
Radically cutting U.S. greenhouse gas emissions has been a central goal for the president since taking office. The centerpiece of this drive was supposed to be a cap-and-trade system, but that was dead on arrival even when Democrats controlled Congress. So the Environmental Protection Agency (EPA) has been dutifully marching forward with a slew of politically-challenged and legally-questionable regulations, from its first wave of permitting requirements for new facilities emitting greenhouse gases (struck down in part by the Supreme Court) to its proposed “performance standards” for new power plants (withdrawn and then re-proposed following legal objections) to its recently-proposed “Clean Power Plan” to cap emissions from existing power plants (already the subject of litigation and withering criticism).
The China Deal Is Smoke and Mirrors
But unilateral action has its risks. If EPA stumbles at all in its roll-out of the Clean Power Plan, that could delay environmentalists’ goal of regulating existing plants for years, particularly if Obama’s successor doesn’t share his priorities. Even if the agency does meet its internal deadlines, there’s still no guarantee the next administration won’t roll back its plans.
This is where the China deal fits in. It provides political cover by creating the appearance—really, the false impression—that the United States isn’t alone in sacrificing economic growth to lower emissions and, in particular, that the president isn’t putting U.S. businesses at a competitive disadvantage to Chinese industry.
There’s also diplomatic cover, in that the next president will be at least hesitant to walk away from an international agreement, binding or not. Much diplomacy is conducted informally, and, all else being equal, nations and their leaders do well to keep their word.
And there’s a measure of legal cover. To be sure, an executive agreement like this one is not legally binding—a treaty, after all, has to be ratified by the Senate, which the president knows is politically impossible. But the courts are generally more deferential to policy decisions that have foreign-policy consequences, given the president’s unique competence and authority in that area. Expect our bilateral “obligations” to China to occupy a place of prominence in legal briefs defending the Clean Power Plan, which is conveniently referenced in the U.S.-China executive agreement, from the legal challenges that are sure to follow its introduction.
Will the Courts Care?
Savvy as it may be, the China deal is also remarkably cynical and has the air of being too-clever-by-half. Lacking the power to simply change domestic laws—well, at least until recently—President Obama is attempting a partial end-run through the exercise of his potent but carefully circumscribed foreign-policy powers. There’s absolutely no reason the deal had to be with China; the Seychelles or Tonga would have worked just as well.
This treads a bit too close to Justice Scalia’s concern, expressed in a treaty-power decision last year, that the Obama administration’s position was a recipe for circumventing the Constitution’s limitations on federal power. Under an unbounded treaty power, he explained, “negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools” would be sufficient to resuscitate the statute prohibiting the carrying of firearms near schools that the Courtpreviously struck down for exceeding Congress’s enumerated powers. Notably, at oral argument, Solicitor General Donald Verilli said it was simply “unimaginable” that the president or Congress would abuse foreign-policy powers to aggrandize their own authority in domestic affairs.
And yet. Remember when it was unimaginable that the president would act unilaterally to alter the legal status of millions of immigrants?
As with the president’s immigration actions, the creative repurposing of executive power that underlies the China deal will have unexpected consequences. If international agreements become just another tool of domestic policy, subject to reconsideration every four or eight years, will it diminish the standing of our word among nations? Or will it ossify U.S. domestic policy, as policy choices are taken off the table to comply with existing agreements?
The key question is whether Congress and the courts will recognize the China deal for what it is—a cynical exercise of bogus internationalism directed entirely at domestic affairs—and treat it accordingly.
Messers. Rivkin and Grossman practice law, with a particular focus on constitutional litigation, at BakerHostetler in Washington DC. Rivkin served at the Justice Department and the White House counsel’s office under presidents Reagan and George H.W. Bush.