[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE OVERREACH IN FOREIGN AFFAIRS
=======================================================================
HEARING
BEFORE THE
EXECUTIVE OVERREACH TASK FORCE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MAY 12, 2016
__________
Serial No. 114-75
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
20-106 PDF WASHINGTON : 2016
_________________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, gpo@custhelp.com.
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Executive Overreach Task Force
STEVE KING, Iowa, Chairman
F. JAMES SENSENBRENNER, Jr., STEVE COHEN, Tennessee
Wisconsin JERROLD NADLER, New York
DARRELL E. ISSA, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
TED POE, Texas Georgia
JASON CHAFFETZ, Utah JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
RON DeSANTIS, Florida SCOTT PETERS, California
KEN BUCK, Colorado
MIKE BISHOP, Michigan
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
----------
MAY 12, 2016
Page
OPENING STATEMENTS
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Chairman, Executive Overreach Task Force.... 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Executive Overreach
Task Force..................................................... 10
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 11
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 13
WITNESSES
Eugene Kontorovich, Professor of Law, Northwestern University
School of Law
Oral Testimony................................................. 14
Prepared Statement............................................. 17
Stephen I. Vladeck, Professor of Law, American University
Washington College of Law
Oral Testimony................................................. 33
Prepared Statement............................................. 35
Steven Groves, Leader of the Heritage Foundation's Freedom
Project
Oral Testimony................................................. 43
Prepared Statement............................................. 45
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Executive Overreach Task Force................................. 4
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Executive Overreach Task Force................................. 71
EXECUTIVE OVERREACH
IN FOREIGN AFFAIRS
----------
THURSDAY, MAY 12, 2016
House of Representatives
Executive Overreach Task Force
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10:11 a.m., in
room 2141, Rayburn House Office Building, the Honorable Steve
King (Chairman of the Task Force) presiding.
Present: Representatives King, Goodlatte, Issa, Gohmert,
Jordan, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen,
Conyers, Jackson Lee, and Johnson.
Staff Present: (Majority) Paul Taylor, Chief Counsel;
Zachary Somers, Parliamentarian & General Counsel, Committee on
the Judiciary; Tricia White, Clerk; (Minority) James J. Park,
Minority Counsel; and Veronica Eligan, Professional Staff
Member.
Mr. King. The Executive Overreach Task Force will come to
order. And, without objection, the Chair is authorized to
declare a recess of the Task Force at any time. I'll recognize
myself for opening statement.
Today's hearing will focus on executive overreach in
foreign affairs. The Constitution grants the President as
Commander in Chief clear powers in foreign affairs. However,
the Constitution also provides for a check on those powers by,
for example, requiring that the Senate approval international
treaties and that Congress appropriate all funds needed to
foreign military engagements.
I'll focus my remarks today on two troubling developments
as it relates to those checks the Constitution grants to the
Congress and not the President. Regarding the Senate's treaty
ratification powers in Paris late last year, the Obama
administration also took part in the 21st Conference of Parties
to the United Nations Framework Convention on Climate Change.
Senior Administration officials, including Secretary of
State John Kerry, Environmental Protection Agency Administrator
Gina McCarthy, and Secretary of Energy Ernest Moniz--who
visited Ames, Iowa, just this past week, and I thank him for
that--negotiated the final terms of a new climate change pact,
the so-called Paris Agreement. The agreement involves the
commitments that will affect every part of the U.S. And the
Obama administration intends to meet those commitments by
requiring changes to State law. These Paris Agreement criteria
and others listed by the State Department itself in what's
called the Circular 175 procedure show clearly that the Paris
Agreement is a treaty that requires the approval the Senate,
under Article II, Section 2, Clause 2, of the Constitution,
which provides the President shall have power by and with the
advice and consent of the Senate to make treaties provided two-
thirds of the Senators present concur.
Despite this, President Obama has made clear through his
spokesperson that he has no intention of consulting or
including either the Senate or anyone in Congress in any aspect
of the international treaty. On March 31, 2015, White House
spokesman Josh Earnest was asked at a press conference briefing
whether Congress has the right to approve the Paris Agreement.
Mr. Earnest responded, speaking for the President, as follows,
''I think it's hard to take seriously from some Members of
Congress who deny the fact that climate change exists that they
should have some opportunity to render judgment about a climate
change agreement.''
Well, think of that for a moment. The chief spokesperson
said that, simply because Members of Congress disagree with the
President's environmental policies, the constitutional
requirement that a treaty be submitted to the Senate for
approval is negated. That's outrageous, and it's unlawful. And
it's a clear example of the executive overreach in the area of
foreign affairs.
Regarding the President's powers in war, the President does
have much greater constitutional authority in the areas of
military affairs than he does in domestic affairs. Yet, even in
the case of war, the President's powers are not unlimited. One
clear limitation on that power is Congress' constitutional
authority to appropriate all Federal funds for use on anything,
including war. Yet President Obama has evaded Congress' control
over military appropriations, as many Presidents have, by using
accounting gimmicks to move funds Congress approved for one
purpose to another, as was done to pay for the U.S.
intervention in Libya.
Today, Congress' power of the purse is weakened because the
President has many ways to evade Congress' control over
military appropriations, namely accounting procedures to move
funds Congress approved for one purpose to another purpose
Congress has not approved.
In the case of the intervention in Libya, President Obama
paid for that conflict entirely out of funds reallocated from
other Defense Department accounts. Harold Koh, President
Obama's own former legal adviser to the Department of State,
has also written that the President has developed over time a
whole range of devices to exploit spending loopholes in the
appropriation process. When Congress grants the President
statutory drawdown authority, he may withdraw certain funds
simply by determining that such withdrawals are vital to the
security of the United States. Similar statutory provisions
allow the President access to special and contingency funds
based upon nebulous findings that the use of those funds is
important to the security of the United States or to the
national interest.
When given statutory transfer and reprogramming authority,
the President has transferred--the President transfers to one
appropriations account funds initially appropriated for another
or may reprogram appropriated funds within a single
appropriation account, often without specific statutory
authority. This is yet another example of executive overreach,
albeit it one that Congress has been complicit to some extent.
Nevertheless, it is an issue that this Task Force should
consider.
And I also am thinking about the Iranian treaty agreement,
and I expect there will be some remarks with regard to that a
little bit later today. And I would point out that Congress has
controlled funds with regard to war and done so effectively.
And if one would read back through the appropriations debate
and language that shut off all funds to support the Vietnam
war: In the land of Vietnam and the seas adjacent to it, the
skies over it, or the countries adjacent to it, or the skies
over them, no funds would be used to conduct the Vietnam war.
And it effectively, I'll say, de facto took ammunition off the
docks at Da Nang by an act of Congress by using the
appropriations language to shut down a war. So that's an
example of how a President did honor the wishes of Congress,
and we're going to want to talk today about that, but in the
meantime, I look forward to hearing from all of our witnesses
here today on these and many other issues.
And I would recognize the Ranking Member, Mr. Cohen from
Tennessee, for his opening statement.
Mr. Cohen. Thank you, Mr. Chair. I would first like to
submit for the record my prepared marks, which I will not refer
to in my remarks, for entry into the record.
Mr. King. Without objection so ordered.
[The prepared statement of Mr. Cohen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Cohen. Thank you. I was a little bit late today, for I
was at the Trumpo show. And there was a gigantic crowd of
reporters and television and protesters over at the
Republican--wherever you all meet, at one of those places. I
saw Vice President Issa over there. And he was walking down the
street looking very Vice Presidential. He was ready at any
minute to step in.
Mr. Issa. Oh, no. You were the one in the Cadillac driving
by.
Mr. Cohen. I thought it was Scherzer. There were so many
people; I thought it was something to do with Scherzer. I mean,
he had 20 strikeouts, but I found out it was Trump. Scherzer,
yeah, unbelievable last night. But you think you have a problem
with executive overreach now; if he becomes President, you have
combover, overreach. You have got all kinds of overs and no
unders.
Mr. Issa. Does the gentleman pretend to know something
about hair? Is there a level of expertise being asserted here
in Halls of Congress?
Mr. Cohen. I have to admit I have hair envy. There's no
question about it.
But if you think you've got problems with President Obama,
if there's a President Trump, Congress will hardly exist
because it will be huge and he'll do great things and he won't
need anybody's advice or consent because he does great things
and he has got great people. And, you know, we will truly be
like we are today. Here we are pretending to do government, and
nobody's really here. And everybody's watching the show, and
we're not the show. And it's all going to be a show.
And you think, you know, an executive, a businessman, a
billionaire: he's not going to care about Congress because he
does it all. And if we suggest anything, that's he's
overreaching his power, he'll fire us, so there will be nothing
happening.
But it's a wonderful story that's about to happen on the
Republican side. It will be a story that people will look at
for centuries. And children in Eastern Europe are going to know
they can be born there in Eastern Europe to parents who are
economically deprived, and they can become a model and turn out
to be First Lady of the United States. And it's going to give
children in Eastern Europe something to look forward to, and it
is going to incentivize them and give them hope. And it's going
to be a great day for America. I can see it coming.
But as far as overreach, you're going to have overreach. It
is going to make Obama look like the person that Mr. King would
like to have President, somebody who is just strictly limited
to the confines of Article--is it II? II, yeah--and doesn't do
anything at all that infringes on Article I. So, with that, I--
--
Mr. Issa. Will the gentleman yield?
Mr. Cohen. The gentleman will yield to the Vice President.
Mr. Issa. I thank the gentleman, and I will remember that.
Mr. Cohen. Don't tell Mr. Corker I called you Vice
President.
Mr. Issa. The case we're making here today hopefully plays
right into what you just said, that if we anticipate that there
have been or measure that there have before overreaches under
this Administration and anticipate under the next
Administration, then wouldn't the gentleman agree that
legislation that specifically empowers the House to be a more
effective balancing act over executive overreach would be
paramount right now before the great hair revolution begins?
Mr. Cohen. I don't disagree with you. In a lot of ways, as
a lifetime legislator, 24 years in the State and now 10, 9-plus
here, I agree the legislature should have more power. I
disagreed that President Obama has overreached on climate
change, which does exist, and/or on the Iran nuclear agreement,
which keeps us safer from the destruction of the planet and
mankind. And Mr. Bellinger and Mr. Goldsmith, two of the legal
minds in the Bush administration who I have great regard for,
concur on that, that these were authorized and appropriate. But
I do think there are problems that have occurred in other areas
where the executive has gone further than they should in doing
things that were legislative prerogatives. And I think that, if
by some chance Mr. Trump is the President, gone, it's over.
Mr. Issa. Well, I look forward to working with the
gentleman to pass that legislation under the current
Administration so that all future Congresses will enjoy that
protection against overreach that the gentleman agrees can
occur and has occurred and that this special working group is
all about.
Mr. Cohen. Would this be kind of like passing a bill that
is like putting an alarm on the government that will go off and
let us know when somebody is trying to break the rules, and an
alarm goes off and warns us?
Mr. Issa. I hope it is both an alarm and an auto shutdown
capability.
Mr. Cohen. Auto shutdown.
Mr. Issa. Thank you.
Mr. Cohen. I yield back.
Mr. King. The gentleman's time has expired.
And the Chair now recognizes the Chairman of the full
Committee, Mr. Goodlatte from Virginia, for his opening
statement.
Mr. Goodlatte. Well, thank you, Chairman King, for
convening this third hearing of the Task Force on Executive
Overreach. And I've been very interested to hear the dialogue
I've just heard and especially the comments of the Ranking
Member, because I look forward to the transition that will take
place when we have a bipartisan effort to halt executive
overreach, because it occurs in every Administration of both
parties. It's occurring right now. And the point isn't whether
you believe in a particular point of view about climate change
or whether you believe in the necessity of doing something
about nuclear weapons in Iran, we all agree on the need to do
some things, not necessarily do the same things. The question
is, under the United States Constitution, who has the authority
to do it? And there we have a serious difference of opinion.
I have to tell you: one of the lowest days in the time that
I have served in Congress was the day that President Obama came
to the House to give his State of the Union address before a
Joint Session of the Congress, and at the end of his long
laundry list of things that he wanted Congress to do, that
every President has of either party--they always have a list of
things they want done--at the end of his, he said, ``And if you
don't do it, I will.'' By what authority under the United
States Constitution? And the really--the reason why it was such
a low day for me was that so many Members of your party stood
up and gave a standing ovation to the President when he said:
I'm going to take your power, the people's power in the elected
Representatives of the Congress, and I'm going to use them for
other purposes.
Mr. Chairman, could I have order?
Mr. King. Yes, the Committee will come to order.
And I recognize again the gentleman from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman. I will focus my
remarks on the recent deal the President struck with Iran on
its nuclear capability, a deal that primarily meets Iran's
goals in that sanctions are lifted, nuclear research and
development continues, and America's safety is compromised, but
doesn't include any requirements for inspections that can
verify compliance anytime and anywhere. Amazingly, among the
deal's many flaws is an end to a ban prohibiting Iranians from
many coming to the U.S. to study nuclear science and nuclear
engineering at American universities. Knowledge obtained in the
programs is instrumental in being able to design and build
nuclear bombs.
President Obama made these gutting concessions even as a
senior State Department official testified before Congress that
deception is part of Iran's DNA. And Iran's actions continue to
prove that it can't be trusted.
With that background in mind, President Obama's agreement
with Iran is being unlawfully implemented because the
Administration failed to provide Congress with the documents
required under the Iran nuclear agreement Review Act of 2015.
Under that act, the agreement materials required to be
submitted by the President to Congress ``include any additional
materials related thereto, including annexes, appendices,
codicils, side agreements, implementing materials, documents
and guidance, technical or other understandings, and any
related agreements, whether entered into or implemented prior
to the agreement or to be entered into or implemented in the
future.'' Because the President has not transmitted to Congress
various side deals related to the agreement, including side
deals between the International Atomic Energy Agency and Iran,
he can't have Congress' approval of the agreement as required
by the Iran nuclear agreement Review Act, yet the President
pushes on, unlawfully, with his doomed agreement that can't
protect Americans from a nuclear Iran.
President Obama is, unfortunately, no stranger to bad
deals. Two years ago, this Administration negotiated with the
Taliban for release of Sergeant Bowe Bergdahl, a deserter who
awaits court-marshal. Despite having a policy of not
negotiating with terrorists, the Administration irresponsibly
exchanged Sergeant Bowe Bergdahl for five Taliban terrorists
detained at Guantanamo Bay. By doing so, the Administration has
emboldened all terrorist organizations and has created the risk
that five terrorists will reenter the field of battle.
Making matters even worse, the President, again, violated
Federal law in the process, namely the Federal law requiring 30
days' notice to Congress before the release of any terrorist
prisoners from Guantanamo Bay. The nonpartisan Government
Accountability Office concluded that was a violation of a
``clear and unambiguous law.'' The GAO has concluded the
President's actions constituted a violation of the
Antideficiency Act, which prohibits Federal agencies from
spending funds in excess of or in advance of amounts that are
legally available.
The Constitution does not and cannot require that
Presidents make sound decisions in office, but it does require
that Presidents obey the law. The President is sworn to do as
much as are we as Members of Congress.
I look forward to hearing from today's witnesses.
Mr. King. I thank you, Mr. Chairman.
And the Chair would now recognize the Ranking Member of the
full Committee, Mr. Conyers, from the rebuilding city of
Detroit.
Mr. Conyers. Thank you, Mr. Chairman.
I welcome the witnesses.
And to my colleagues, the issue of appropriate roles of the
Congress and the President is a subject worthy of a genuinely
substantive discussion. And I think it's a very important
discussion that's involved in the hearing today. For instance,
we could consider whether our Nation's current military
operations against the Islamic State of Iraq and Syria have
been properly authorized by Congress. I won't go into detail,
but I'm involved in research on that subject at the present
moment.
Unfortunately, today's hearings may be turning into an
attack against the current Administration. Let's start off with
this proposition: neither the Iran nuclear agreement nor the
Paris climate change agreement is a treaty within the meaning
of the Constitution's Treaty Clause that requires Senate
consent.
The Paris climate change agreement, for example, contains
no mandatory quantitative emission standards or reductions.
Rather, it is a strong exhortation that parties take concrete,
transparent, but ultimately self-directed steps to reduce
greenhouse gas emissions. Contrary to the assertions of some,
this agreement does not contain legally binding requirements,
nor does it purport to grant new authority to the President to
meet any such requirements.
In short, it doesn't meet the traditional criteria of a
treaty within the meaning of the Treaty Clause. And the Iran
agreement was a set of political commitments rather than
legally binding requirements. Thus, it also was not
constitutionally required to be subject to Senate approval.
In addition, both agreements are consistent with existing
law of the United States of America. For instance, the statutes
imposing sanctions on Iran for its nuclear weapons program also
give the President the discretion to remove these sanctions
should certain criteria be met. And the Paris climate agreement
was reached pursuant to a 1992 climate change treaty that the
Senate had already ratified. In other words, the Paris
Agreement is consistent with the obligations created by a
treaty that, under the Supremacy Clause, was already the law of
the land.
Now, as professor Vladeck correctly notes, arguments
questioning the legality of these agreements are part of an
ongoing attempt to paint policy disputes as constitutional
matters. Whatever one thinks about the merits of either the
Iran nuclear agreement or the Paris climate agreement, the
Constitution and the historical practice make clear that the
President was within his authority to enter into them. At any
rate, Congress has already had the opportunity to make its
voice heard.
With respect to the Iran nuclear agreement, Congress had
the chance to disapprove the agreement, but opponents of the
agreement failed to obtain the necessary votes to prevent the
agreement from taking effect. And as I noted and conclude, the
Senate long ago ratified the climate change treaty pursuant to
which the Paris Agreement was entered. So rather than sparking
enlightened discussion, today's hearing I fear may be a string
of partisan exercises by the Task Force, but I think it's
important that we move on, and I thank our witnesses for
appearing today. I look forward to hearing their testimony, and
I thank the Chair.
Mr. King. I thank the gentleman from Michigan for his
opening statement. And I'll now introduce the witnesses. Our
first witness is Eugene Kontorovich, professor of law at
Northwestern Law School.
Our second witness, welcoming him back again, is Stephen
Vladeck, professor of law at American University and Washington
College of Law.
Our third witness is Steven Groves, leader of the Heritage
Foundation's Freedom Project.
We welcome you all here today and welcome your testimony.
Each of the witnesses' written statements will be entered
into the record in its entirety. I ask that each witness
summarize his or her testimony in 5 minutes or less. To help
you stay within that time, there is a timing light in front of
you, and that light switches from green to yellow, indicating
you have 1 minute to conclude your testimony. When the light
turns red, it indicates it is time to wrap it up.
Before I recognize the witnesses, it is the tradition of
the Task Force that they be sworn in.
So, to the witnesses, please stand and raise your right
hand. Do you solemnly swear that the testimony that you are
about to give will be the truth, the whole truth, and nothing
but the truth so help you God?
Thank you. You may be seated.
Let the record reflect that the witnesses answered in the
affirmative.
I now recognize our first witness, Mr. Kontorovich. Please
turn on your microphone before speaking, and you're recognized
for 5 minutes, Mr. Kontorovich. Thank you.
TESTIMONY OF EUGENE KONTOROVICH, PROFESSOR OF LAW, NORTHWESTERN
UNIVERSITY SCHOOL OF LAW
Mr. Kontorovich. Thank you, Chairman King, Ranking Member
Cohen, Ranking Member of the Committee Conyers and honorable
Members of Committee. It is a great pleasure to be here today
to discuss these matters with you.
I'll state one thing for the record: I have the pleasure to
say we are now the Northwestern Pritzker School of Law. And our
generous donor would be happy to hear me say that, I hope. So
the executive, nobody would dispute, has vast discretion in
foreign affairs, discretion imparted both by the Constitution,
which gives the executive a primary role in the conduct of
foreign affairs because of the greater capacity of a single
individual to enter into negotiations and conduct dealings with
foreign countries and also because Congress on top of that
already broad discretion, has given the executive vast leeway
through statutes that allow for waivers and many other
delegations of broad authority.
However, Congress also has constitutional powers, core
Article I powers, including the foreign commerce power,
spending power, which can greatly affect foreign affairs. And
when these powers are exercised in the realm of foreign
affairs, they are no less valid and no less plenipotentiary
because they involve diplomacy or matters involving other
countries.
Now, indeed, because the executive's powers in foreign
affairs are so broad, it is hard for the executive to
overreach. It's hard. But that makes it all the more amazing
and all the more worrisome when the executive does indeed
overreach. Because when one has vast power, claiming even more
is even more problematic.
I'm going to briefly mention two examples, two recent
examples, of what I see as such overreach, involving two core
Article I powers of Congress: the foreign commerce power,
involving the Iran Sanctions Act, and the spending power,
involving funding to certain United Nations agencies.
As Chairman Goodlatte mentioned, the Iran Sanctions Review
Act requires that the President transmit, as a condition for
the sanctions relief that the act enables, that the President
transmit the entire agreement. The language of this provision
in the Iran Review Act is extraordinarily vast, and it looks
like it was written by teams of redundant lawyers. And it bears
quoting again: ``these agreements include appendices, annexes,
codicils, side agreements, implementing materials,
documents''--that's one broad category; the question is, is
this a ``document?''--``guidance, technical or other
understandings,'' and lots of other stuff.
The question is, are the relevant materials involving
arrangements between the International Atomic Energy Agency and
Iran, for inspection and review of their nuclear program, is
that a document, material, codicil, and so forth, under the
deal? And it seems quite clear that it is. It's actually
mentioned and incorporated by reference in the Joint
Comprehensive Plan of Action itself, and as such, it must be
transmitted to Congress for the review period under the act to
begin.
If that review period does not begin, sanctions cannot be
lifted. It is true, as Ranking Member Conyers pointed out, that
prior statutory sanctions had waiver provisions. But just as
Congress can allow the President to waive, it can cabin and
take back that waiver authority, which is exactly what happened
in the Iran Nuclear Sanctions Review Act. As a result, the
current lifting of some sanctions is legally problematic, and
even more troubling is the executive's apparent desire to
leverage this to now intimidate states into abandoning their
lawful sanctions, which, again, the Iran Nuclear Review Act
would prohibit.
Now, a separate law involves Congress' exercise of its
spending power. Congress can, through the power of the purse,
deal with any subject involving diplomacy, involving war, as
the Chairman mentioned. And Congress provided that when U.N.
agencies try to take sides in the Middle East conflict and
improperly admit the Palestinian Authority as a member state,
despite it not meeting the international criteria for
statehood, those agencies can't be funded by the U.S. taxpayer.
That law is quite clear, and it applies to any U.N.-affiliated
agency.
One such agency, the United Nations Framework Convention on
Climate Control, has accepted the Palestinians as members. The
clear effect must be that they cannot receive taxpayer funding.
The Executive seems to take the position that he will
nonetheless send a check to this agency on the theory that the
framework convention is a treaty. It's true it is a treaty, but
it is also an agency created by that treaty. I think the best
proof of that is that a treaty can't deposit a check. Only a
U.N. agency can deposit a check. I presume the money from the
Treasury isn't being sent to the treaty. It is being sent to
the U.N. agency, and that's exactly what the law prohibits.
Thank you. And I would refer the Committee to my written
testimony for further elaboration.
[The prepared statement of Mr. Kontorovich follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. Thank you, Mr. Kontorovich.
Now I recognize the gentleman Mr. Vladeck for his
testimony.
TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
UNIVERSITY WASHINGTON COLLEGE OF LAW
Mr. Vladeck. Great. Thank you, Chairman King, Ranking
Member Cohen, distinguished Members of the Task Force. It's an
honor and a privilege to be testifying before you again.
I do fear that it has become an all too common refrain in
contemporary American discourse for those who object to the
wisdom of particular policy outcomes to disguise that objection
behind claims of legitimacy; that is that the relevant
government actor lacks the authority to effect the disputed
policy outcome, never mind its wisdom or potentially its lack
thereof. For example, when the Supreme Court interprets the
Constitution in a manner some of us don't like, critics often
object to the Court's power to even reach the contested
interpretation in the first place rather than the merits of the
interpretation.
In a recent essay, my friend and George Washington law
professor Orin Kerr described this phenomenon, which he harshly
criticized, as the politics of delegitimization. It seems to me
that today's hearing is a variation on the same theme,
portraying a range of perfectly legitimate substantive
disagreements over various of the Obama administration's
foreign policy initiatives as arrogations of executive power
rather than merely as exercises of executive power with which
many of us simply disagree.
Indeed, of all the areas in which President Obama has been
criticized for overreaching, foreign affairs may be the context
in which those claims run the hollowest. Not only does the
Constitution invest the President with a wide range of inherent
and, as the Supreme Court just reminded us in the Zivotofsky
case, preclusive constitutional authority in the field of
foreign affairs, but Congress has historically acquiesced by
broadly delegating much of its own authority in this field to
the President. Nor does the President overreach simply by
entering into diplomatic accords without formally submitting
the agreement to Congress. All three branches of the Federal
Government have recognized, and shortly after the founding,
that the President has the constitutional power to enter into
bi- or multilateral agreements that are not treaties for
constitutional purposes. Indeed, as the Congressional Research
Service explained in a March 2015 report, these agreements,
rather than treaties, have become the constitutional norm.
With regard to the third category of these agreements, so-
called sole executive agreements, as the Supreme Court
explained in 2003, our cases have recognized that the President
has the authority to make executive agreements with other
countries requiring no ratification by the Senate or approval
by Congress. This power hasn't been exercised since the early
years of the Republic. Indeed, although the extent of the
President's authority to conclude executive agreements is
uncertain, as one recent study concluded, the courts have never
struck down a Presidential executive agreement as being
unconstitutional. Instead, the contemporary debate is not over
the abstract validity of sole executive agreements but rather
the specific criteria that separate agreements that ought--that
separate--pardon me, agreements that ought not to be required
in congressional involvement from those that should. To be
frank, there are no bright lines, but by far, the two most
important criteria for assessing whether the President should
submit an international agreement to Congress are whether the
agreement is inconsistent with and could not be implemented on
the basis of existing U.S. law and whether the agreement
establishes binding legal rules or financial commitments with
which the United States comply. Unless the answer to both
questions is yes, history, practice, and precedent all suggest
that the President is acting within his constitutional
authority when he enters into such a sole executive agreement.
As my written testimony explains in more detail, I'm hard
pressed, in light of these criteria, to see the argument that
my colleagues make that President Obama was constitutionally
required to submit to Congress either the full Iran deal or the
Paris climate agreement for many of the reasons echoed by Jack
Goldsmith and John Bellinger. Obviously, I would be happy to
say more about both of these lines of analysis during the Q&A.
But apart from the merits of these debates, it seems to me that
the more important point is the extent to which efforts to
portray the foreign policy of the Obama administration, as
reflected in executive overreach, are another example of the
phenomenon described by Professor Kerr.
Of course, this Task Force, this Committee, and this
Congress may think there is more political and rhetorical gain
to be had from casting these debates on legitimacy returns. But
I fear that such an approach has deleterious long-term
consequences for Congress' institutional role in the formation
and supervision of U.S. foreign policy. After all, the more
Congress focuses its critiques on ill-conceived legitimacy
objections, the more it suggests, however implicitly, that all
it is capable of in the field of foreign affairs is to offer
such authority-driven objections to these policies as opposed
to either enacting legislation that more aggressively seeks to
assert Congress' own foreign policy prerogatives or taking a
more active role in stimulating and raising the national level
of discourse over the normative desirability of these measures.
To me, Congress should be more careful going forward to seize
these imperatives in the foreign policy arena.
But as Professor Goldsmith has concluded: ``I doubt
Congress will be more careful in the future since it typically
doesn't like and cannot organize itself to exercise the
responsibility of an equal constitutional partner in the
conduct of U.S. foreign relations.''
Studying the origins and trouble and persistence of that
institutional shortcoming is, in my view, far more worthy of
this Task Force's time than trumped-up charges of executive
overreach that once subjected to meaningful scrutiny smack of
nothing more than the politics of delegitimatization.
Thank you again for the opportunity to testify before the
Task Force this morning, and I look forward to your questions.
[The prepared statement of Mr. Vladeck follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. Thank you, Mr. Vladeck.
The Chair would now recognize Mr. Groves for his testimony.
TESTIMONY OF STEVEN GROVES, LEADER OF
THE HERITAGE FOUNDATION'S FREEDOM PROJECT
Mr. Groves. Thank you, Mr. Chairman, for inviting me to
testify today about executive overreach in foreign affairs.
The debate over the proper scope of executive power in
foreign affairs has been going on for more than 200 years. It
arose during the 1793 George Washington Presidency when he
declared that the U.S. would be neutral in a war between France
and Great Britain. The Monroe Doctrine, FDR's Destroyers for
Bases Agreement, and the Algiers Accords are just a few
historical examples where significant questions have arisen
regarding executive authority in the conduct of foreign
affairs. And here we are in 2016 continuing this debate.
In our defense, it's not really our fault. The text of the
Constitution, though fairly specific on the distribution of
power in the domestic sphere, is less helpful in the foreign
affairs arena. The Constitution was written to remedy certain
pre-constitutional disputes. And as a result, we're forced to
strain to find textual guidance to address many of the issues
that arise today, particularly in foreign affairs.
There is, of course, the Commander in Chief Clause, but
most of the executive's foreign affairs powers have developed
through historical practice over the past two centuries. To
make things more difficult, for better or worse, the Federal
courts rarely intervene to clarify the limits of executive
power in foreign affairs because such cases usually present
nonjusticiable political questions that courts are loath to
answer one way or the other.
But, today, I'd like to focus on the President's actions in
the area of treaty making and how, in my view, he has
overreached and even abused his authority. This Task Force has
already heard testimony regarding the President's executive
actions regarding immigration and health care that constitute
overreach.
In the foreign affairs realm, the President does the same
thing but through so-called sole executive agreements, as
mentioned by Professor Vladek. Specifically, the President's
decision to treat the Paris Agreement on climate change as a
sole executive agreement was an overreach and an abuse of his
executive authority. Never before has an international
agreement of such import been treated as a sole executive
agreement, not once in American history.
The President himself stated that the Paris Agreement will
literally save our planet. That's a quote. And yet the
agreement somehow does not rise to the level of a treaty
requiring the advice and consent of the Senate. The President's
actions are an overreach for several reasons, first of which is
that they fly in the face of a commitment made by the executive
branch to the Senate in 1992. Back then, during the
ratification debate on the U.N. Framework Convention on Climate
Change, the Senate was concerned President Bush or a future
President would negotiate follow-on agreements that had
emissions targets and timetables but not submit those follow-on
agreements to the Senate. The Senate, then controlled by
Democrats, required assurances that any such follow-on
agreement containing targets and timetables would be submitted
for approval. President Bush agreed on behalf of the executive
branch, and the commitment was memorialized in the framework
convention documentation during the ratification process.
Now, the next President, to his credit, lived up to that
commitment. When President Clinton negotiated the Kyoto
Protocol in 1997, he treated it as a treaty, something that
would have to go to the Senate for advise and consent. He
didn't attempt to circumnavigate the Senate. He didn't ignore
the 1992 commitment. He didn't simply declare the Kyoto
Protocol was a sole executive agreement that didn't require
Senate approval. He stuck to the commitment because that's what
Presidents should do.
But President Obama is unwilling to live up to those
commitments. And the Paris Agreement certainly contains targets
and timetables, but the President refuses to submit it to the
Senate. That is executive overreach. The President's actions
also ignore the objective criteria used by the State Department
in determining whether an international agreement is a treaty
versus an executive agreement, the so-called Circular 175
procedure mentioned by Chairman King. As I detail at length in
my written testimony, when the eight factors of the C-175
procedure are applied, it's clear that the Paris Agreement must
be treated as a treaty. But the President has chosen to ignore
those factors as well as the 1992 commitment to the Senate.
Now, because of this overreach, that will not likely be
remedied in Federal court, it is incumbent upon Congress to
refuse to fund the implementation of the Paris Agreement until
the people, through their elected Representatives, approve it,
and at a minimum, this House should refuse to appropriate U.S.
taxpayer dollars for the so-called Green Climate Fund or any
other financial mechanism associated with the Paris Agreement
or the U.N. Framework Convention. Congress should also continue
to resist and disapprove of all regulations meant to implement
the Paris Agreement such as the Clean Power Plan.
I thank you again for inviting me to testify, and I look
forward to any of the questions that the panel has.
[The prepared statement of Mr. Groves follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. Thank you, Mr. Groves.
I'll now recognize myself for 5 minutes.
I would go directly to the way you culminated your
testimony and that would be your recommendation that if
Congress--I'll ask it this way: When there's an executive
overreach in the case of, say, the Paris Agreement, for
example, then it's your advice that Congress should refuse to
fund it and use the power of the purse to restrain an overreach
of the executive branch of government. Would it be your opinion
that Congress do that, whether or not we agree with the policy
that's been negotiated?
Mr. Groves. It should be dealt with, you know, on its own
merits. You know, if for some reason there was a President
Trump or maybe it was President G.W. Bush who negotiated this
Paris Agreement and treated it as a sole executive agreement, I
would still be here testifying against it as a conservative. It
is the principle of the matter that Congress and the Senate is
being bypassed. Then they will come to you and ask for the
appropriations, billions and billions of dollars a year, by the
way, for this Green Climate Fund. So, on the principles of
separation of powers and executive overreach, you should still
defund this until it can be remedied, regardless of whether you
agree or disagree with the President's views on climate change.
Mr. King. If your recommendation is, on the basis of the
principle of the separation of powers and the doctrine that,
even though Congress might agree with the policy, you would say
defund that policy and say to the President: You must come to
us, because that's congressional authority; don't step into our
jurisdiction.
Mr. Groves. Correct.
Mr. King. Mr. Vladeck, would you comment on that?
Mr. Vladeck. Certainly, Mr. Chairman, I would not disagree
that Congress has the power of the purse and that through the
power of the purse Congress has the authority to express its
views on the wisdom or lack thereof of policy initiatives in
the executive branch. I don't think it is--I think Members of
Congress are free to use their votes to disapprove of policies
they don't like through the power of the purse.
The point I would make briefly is I think it is worth
stressing that that is a very different question than whether,
in the absence of a no-funds provision, the executive has
overreached simply by going the executive agreement route over
a treaty. But, certainly, the power of the purse is I think an
obvious and long available option for Congress to assert
itself.
Mr. King. On the matter of principle rather than the matter
of policy, would it be your counsel also that Congress should
defend its authority to use the power of the purse, even if
they agree with the policy, but there has been an overreach?
Mr. Vladeck. I mean, so I guess I would say it is up to the
individual Member to decide which is more important to him or
her, which is to say, is it more important to assert the
institutional prerogative of Congress or to support a policy
choice that you agree with? I think each Member is going to
make that decision for themselves.
Mr. King. So I'd say Mr. Groves said principle; you said
pragmatism. And I'd turn then to Mr. Kontorovich to settle this
dispute.
Mr. Kontorovich. I think principle is the long-term
solution for Congress.
Mr. Vladeck. I'm going to be outvoted a lot today.
Mr. Kontorovich. They are going to be in the same shoes
again. And the important reason to take a stand--in all of
these cases, when you are going to be defunding something, it
is going to hurt. It is going to hurt someone. It is going to
run afore some policy imperatives. But if Congress is unwilling
to use this tool, it really can't expect the President to heed
their wishes. Indeed, as we see with the continued funding of
the United Nations Framework Convention on Climate Control,
sometimes even defunding isn't enough to get something
defunded. Sometimes even a no-funds provision is going to be
ignored. So what I would advise is that Congress needs to keep
in mind that its legislation in the end is going to be
interpreted by the President, usually in a nonjusticiable
context. The President will effectively be interpreting
legislation designed to bind him. And so Congress, if anything,
overdo it in the direction of constraining the President,
because don't worry; the President won't be overconstrained.
The President will loosen whatever shackles are on him until he
has comfortable room to maneuver.
Mr. King. Thank you, Mr. Kontorovich.
Now I'd start back down the line again to Mr. Groves, and
I'd phrase it this way: Even in the face of having a President
who would out of his desire to advance an executive overreach
policy on climate change agreement, like the Paris Agreement,
if you have a President that you know will veto any legislation
that uses the power of the purse to stand on principle--if
Congress stands on principle, as you suggested, how does that
principle stand up against a government that would be shut down
and could not be opened up again without a concession to the
President, given that a supermajority to override a President's
veto would be required?
Mr. Groves. You know, it's a dance that we've seen with
these government shutdowns time and time again. But I would
answer your question by referring to Congressman Cohen's
concern that, in some time in the future, we could be faced
with a President Trump and if Congress is intending on
protecting its congressional prerogatives and its power of the
purse and having principled positions when a government
shutdown is looming, now is the time to assert those, so that
if and when there is a President Trump, you are not accused of
mere partisanship and you stood on principles that came out
during this Task Force and these hearings.
Mr. King. Thank you, Mr. Groves.
And I would say also that in this essentially a stare down
between the Congress and the President, as the case may be, and
you're faced with a government shutdown, the side that prevails
will be the side that doesn't blink. And so if the public is
very strongly behind the Congress itself and insists that we
defend those constitutional principles that you've articulated,
then it could be a different result in that kind of a showdown.
And I think that is what's been the result of the shutdown we
had in the past; I think it was a foregone conclusion that the
President would not blink, and it was a foregone conclusion
that Congress would. So I have just said: Find me 217 others
who will that sign a blood oath that they will blink after I
do.
Thank you. And I yield to the Ranking Member of the Task
Force from Tennessee.
Mr. Cohen. Thank you, Mr. Chair.
President Trump would wink and not blink.
Mr. Kontorovich, I really enjoyed your presentation. The
substance was good, but the delivery, the accent, and the style
reminded me of my dear late friend Christopher Hitchens. He
would not have a yarmulke on, although he did have some Jewish
heritage, but he didn't necessarily believe in all of that
stuff. But you sound like Christopher Hitchens.
Tell me how would you frame a statute that you think would
solve the problem that you think exists? Because we've already
got a Constitution that says X, Y, Z, and we have got Supreme
Court opinions. So what's a statute going to do?
Mr. Kontorovich. So to speak generally across the different
contexts we have considered, a statute would have fewer wiggle
words, be more direct, and go in the direction of overbreadth.
Congress, when it's legislating in the area of foreign affairs,
is very conscious, self-consciously avoiding restraining the
executive in ways which will be awkward for him or which will
impair our diplomacy. And that is a salutary desire, except one
has to remember that whatever Congress does, the executive is
also going to interpret it more in line with his foreign policy
objectives. And the executive will have the last word, so I
would use broader, clearer language. For, for example----
Mr. Cohen. Broader, clearer. Doesn't broader--I thought you
said simple and concise, more or less.
Mr. Kontorovich. Yes, that's exactly right. So, for
example, instead of saying ``U.N.-affiliated agencies,'' I
would say ``U.N. agencies.'' Take out of word ``affiliated.''
Each word is going to be used by the executive as an excuse for
not implementing the policy of the Congress as legislated.
Fewer waivers would also be desirable, but most
importantly, Congress needs to back its legislation. Because in
the examples I gave, Congress did, in fact, have very broad
language, for example, about the required transmittal of
documents under INARA. Congress has pretty clear defunding
provisions regarding U.N. agencies and the Palestinian
Authority. The question is, is Congress going to get angry
about it when it doesn't happen? The question of funding the
U.N. agencies and whether this is a U.N. affiliate agency or
whether it is a U.N. treaty agency is somewhat reminiscent I
might say, to broaden the partisan context here, of the Boland
amendment and the question of whether the National Security
Council was a U.S. intelligence agency for purposes of laws
restricting funds to the contras.
Now when Congress considered that its directives were
violated by the President, that the President spent money
without their authorization using statutory interpretation,
Congress didn't just say: Well, that's--what are we going to
do.
Mr. Cohen. I can't remember; which President was that?
Mr. Kontorovich. That was Ronald Reagan.
Mr. Cohen. Oh, yeah, yeah, yeah.
Mr. Kontorovich. So I thought you would appreciate the
broadening of the partisan context, sir. But I would remind you
Congress' reaction. Congress didn't say: Well, it's the
President; it's foreign relations.
It was a massive national question.
Mr. Cohen. I don't know how massive it was. Certain people
thought--other people thought Oliver North should have been
given a Congressional Medal of Honor. There was a split of
opinion on the whole deal.
Mr. Kontorovich. The hearings about the funding to the
contras I think were much more extensive than the hearings
about the funding for the United Nations Framework Convention
on Climate Control, though the amount of money in question was
not too different.
Mr. Cohen. Yes, sir.
Mr. Groves, do you have differing opinions on how
legislation would be framed?
Mr. Groves. Well, right now, the C-175 procedure, if
everyone adheres to it, does the job. As I mentioned, during
the Clinton administration, they adhered to it, and they knew
the Kyoto Protocol was a treaty, and that's why they never even
bothered to submit it.
You have to really strike a balance between codifying some
of these procedures to make sure that these things can be
better understood between the two branches in the future and
stepping over the line between where the separation of powers
are between the legislative and executive branch. But I think
there's probably a middle ground where the current state of
affairs with the C-175 factors and how it is decided whether to
negotiate something as a treaty versus an executive agreement
could be codified in a way that brings greater transparency to
the process and we can avoid some of these disputes in the
future, as we've had over----
Mr. Cohen. Do you really think if we did that, that a
President Trump would give a hoot?
Mr. Groves. I don't know about him. I wasn't on his team. I
think the guy that I was backing would give a hoot. I think
that other well-meaning Democrats in the office would give a
hoot. We have proof of it. President Clinton gave a hoot, and
there were a number of things that he would have loved to have
seen. He signed the Rome Statute on the International Criminal
Court; the Convention on the Rights of the Child, a human
rights treaty; and the Kyoto Protocol. He would have loved to
see those things come into action, but he didn't pretend that
they weren't treaties. He didn't pretend they were sole
executive agreements. He adhered to his obligations.
Mr. Cohen. My time has expired. But I'm just curious who
you supported.
Mr. Groves. I was on Senator Cruz' team.
Mr. Cohen. Lying Ted. As distinguished from short this one
and whatever that one is.
Mr. King. The gentleman's time has expired.
For the record, I know the whole truth to that, and that is
not true.
Mr. Cohen. I was just being facetious with the term.
Mr. King. Generally, I appreciate the gentleman from
Tennessee.
And now I recognize the gentleman from Texas for his
testimony, questioning.
Mr. Gohmert. Thank you. I do appreciate the satire in
satirically violating the rules of decorum of the House. I
always felt it was rather satirical of somebody who had to be
lying to say ``lying Ted'' or ``the most dishonest person he
had ever met'' since he was the most honest man in the race.
But let's go back to this Paris Agreement, and I
appreciate, Mr. Kontorovich, your written testimony. You got
into more detail that the U.N. Framework Convention on Climate
Change accepted the Palestinian Authority as a state party. As
you say, the move is part of the Palestinian effort to be
declared a state. The United States does not recognize the
Palestinian Authority as a state, and U.S. policy has
consistently opposed such moves. Therefore, longstanding U.S.
law requires the defunding of any U.N. organization that grants
Palestinian Authority such status. We also--I haven't read the
Paris Agreement, but my understanding from reading articles
about the Paris Agreement, the original article IX required
developing nations to transfer wealth to underdeveloped
nations, and normally, that would require congressional action
so--and I know there was this great facade over the Iranian
treaty. The Corker bill amended the Constitution with a
legislative act by requiring a treaty to only get one-third of
the vote of the Senate in order to be effectively ratified. I
still think the Constitution is intact in that area. It should
have required two-thirds to ratify what is a treaty, because it
does modify a number of other treaties like with regard to
missiles and proliferation. So, on one hand, I appreciate the
testimony. Clearly, if we're going to be transferring American
wealth, with all due respect to the President's desire to
spread the wealth, that's not something he has authority under
the Constitution to do without congressional concurrence. And
it also does explain why after the Kyoto accords, the
underdeveloped nations were all claiming: If we don't get
America on board, this agreement doesn't work. What they were
saying was: If America doesn't sign on, then the one country
that's going to send us checks is not going to be sending us
checks, which is the whole reason we're part of this; we want
to get checks from the U.S. Congress, from the U.S. Treasury.
And so does anybody see a constitutional way of having the
United States Treasury send money to the benefit of foreign
countries without congressional concurrence in that? Anybody?
Mr. Groves?
Mr. Groves. No, there actually is no way to do that and----
Mr. Gohmert. Constitutionally.
Mr. Groves. Not constitutionally.
Mr. Gohmert. Yeah. Apparently, it is going on like money
being provided to Iran without congressional consent, but any
other thoughts on that happening?
Mr. Groves. Well, I mean, the House did and the Senate had
an opportunity during the omnibus to put in language strictly--
specifically preventing the transfer of the $3 billion to the
Green Climate Fund that the President had pledged.
Mr. Gohmert. Was there a need to put that in since they do
not have authority to do that currently?
Mr. Groves. There was a need to put that in if you wanted
to prevent the President from reprogramming other funds from
other climate-related international aid areas into the Green
Climate Fund, which is what he ultimately did in order to come
up with the $3 billion that he had pledged.
Mr. Gohmert. Do you agree that the Senate should have taken
a vote on the Iranian agreement as a treaty and determined
whether or not they get two-thirds to ratify?
Mr. Groves. Well, I would defer to Eugene on the Iran
nuclear deal issues. We had a debate. We have had debates
within our circles about whether the Senate can just decide on
its own that an agreement is a treaty and we are going to take
a vote on it. There's good arguments on both sides of that
issue. I think I agree with you--whether the Senate can do
that, there's good arguments. But I agree with you that the
Corker-Cardin bill was, I think, a wrong-headed way to move
forward because you essentially turned the two-thirds advise-
and-consent vote into the one-third----
Mr. Gohmert. Well, my time has expired, but I'm astounded
that you think the Senate can call a cow a horse and then it
becomes a horse. But thank you for your testimony.
Mr. King. The gentleman from Texas yields back.
And the Chair will now recognize the Ranking Member of the
full Committee, Mr. Conyers from Michigan.
Mr. Conyers. Thank you, Chairman.
Professor Vladeck, is the Paris climate agreement and the
Iran nuclear deal inconsistent with current American law?
Mr. Vladeck. If they are, I'm not sure what those laws are.
I mean, I've listened to my friends Professor Kontorovich and
Mr. Groves, and, you know, I haven't heard specific American
statutes that these agreements are inconsistent with. Professor
Kontorovich wants to suggest that failure to transmit the IAEA
side deal of the Iran agreement violates the INARA, the Nuclear
Agreement Review Act. I would just refer the Task Force to Jack
Goldsmith's 2015 blog post on why the argument is intriguing
but not convincing.
Mr. Conyers. What say you, Professor Kontorovich?
Mr. Kontorovich. My friend and teacher Jack Goldsmith wrote
that blog post before he read my testimony and the full
presentation of my arguments.
Mr. Vladeck. Although he refers to you specifically in the
post.
Mr. Kontorovich. Yes, indeed. So he read part of the
material in the testimony but not the fully elaborated
argument.
Again, I think it's important to point out, INARA does not
require the President to transmit any deal. It's not a
violation of INARA for the President to not transmit material.
The President can say: This material is sensitive; I don't want
to give it over. That is entirely consistent with INARA.
However, the consequence of that under INARA is that the
sanctions, existing statutory sanctions, can't be lifted. It's
not a violation. It just has consequences in terms of statutory
sanctions. There is nothing unconstitutional about the
President not transmitting this material. The problem is that
the President wants to act as if the material were transmitted
when, in fact, it was not. And I would refer the Honorable
Members to the various statements of congressional intent made
during the discussions of INARA, where it was quite clear that
Members understood they wanted to see everything to exercise
their constitutional right to review the agreement.
Mr. Vladeck. Although that's not what the statute says. I
mean, I think that--so the problem is that I think Professor
Kontorovich is right that one can find legislative history
suggesting that everything was on the table. As I think
Professor Goldsmith's post makes clear, if you actually read
the text of the statute, there are certainly plausible,
reasonable interpretations of the language that actually only
refer to agreements to which the U.S. is a party, which does
not include the IAEA side deal with Iran.
I'm not saying that there is an obvious answer. My point is
that I think we would need more of a smoking gun before
reaching the conclusion that both of my colleagues reach that
these agreements are clearly inconsistent with existing U.S.
law.
Mr. Conyers. Well, let me ask you this: Has either the
Paris climate agreement or the Iran nuclear deal created new
legal, binding commitments with which our country must comply?
Mr. Vladeck. So I think, I mean, my understanding of both,
and I'm certainly happy to hear what my colleagues think, is
that they create process commitments. They create reporting
requirements but that the actual text of the agreements was
carefully negotiated to avoid binding, substantive legal
obligations entirely to avoid the U.S. constitutional law
objections. Right, indeed, there's a great post that I cite in
my testimony about how the word ``shall'' was changed to
``should'' at the last minute for the emissions cap in the
Paris climate agreement entirely to avoid the very argument we
are now hearing that these agreements impose mandatory
substantive obligations on the U.S. and, therefore, must be
submitted to Congress.
Mr. Conyers. Professor Kontorovich, do you generally agree
with that assessment?
Mr. Kontorovich. Yeah. I'm not as well read in the Paris
deal, but I do not believe the Iran deal creates binding legal
obligations for the United States, which is going to be
extremely important when the Administration argues that State
laws must be preempted because of the deal, which is not
something that can happen if it does not create binding legal
obligations for the United States.
Mr. Conyers. Let me raise this last question here.
Opponents of the Administration's policy claim that the
President has exceeded his legal and constitutional authority
in foreign affairs, but in what ways has Congress itself
delegated its foreign policy powers to the executive branch?
Mr. Vladeck. Well, I think in the case of the Iran deal, I
mean, I think it's quite clear that Congress in prior statutes
had already delegated to the President a wide range of
authority to figure out what the sanctions regime should look
like, to set the terms of the sanctions, to control the timing
of the sanctions. And so, you know, as Professor Goldsmith
says, but for those delegations, I think we would be in a very
different position talking about how much authority the
President already had to conduct the Iran agreement without
Congress.
Mr. Conyers. Do we have agreement on that generally?
Mr. Kontorovich. It is exactly because Congress delegated
such broad discretion to the President that limitations on that
discretion, subsequent walk-backs of that discretion, and ways
of monitoring that which INARA embodies need to be strictly
construed.
Mr. Conyers. Professor Groves--Mr. Groves, do you agree
with that?
Mr. Groves. I would just speak as to the Paris Agreement.
We have very specific things that the President didn't adhere
to that demonstrate his overreach. The test is not whether
there was a specific statutory law that the President has
breached. That's a pretty high bar. What we have in the Paris
Agreement is we have him ignoring the C-175 procedure, which
decides what's a treaty and what's a sole executive agreement.
We have him ignoring the 1992 commitment made by a prior
executive to the Senate to submit future agreements with
targets and timetables to the Senate. That is the basis for my
opinion that President Obama has gone beyond his mandate when
it comes the Paris Agreement.
Mr. Conyers. Thank you, Chairman King.
Mr. King. I thank the gentleman from Michigan.
And now I recognize another gentleman from Michigan, Mr.
Bishop.
Mr. Bishop. Thank you, Mr. Chairman.
I appreciate your testimony today. Thank you very much for
being here today.
Mr. Groves, one of the questions I get from my constituents
on some of these deals and, in particular, the Iran deal is,
how do we know whether an international agreement should be a
treaty or an executive agreement?
Mr. Groves. Well, it's--I wish it was set in stone, but
it's not. I wish the U.S. Supreme Court had come down with an
opinion laying out all of the factors, but they haven't. And
don't know if that's their role. What we do have is there were
disputes over this back in the 1950's. You remember things like
the Bricker amendment. You remember things like the Case-
Zablocki Act where the separation of these powers between
Congress and the President were debated. And one of the things
that came out of that debate and out of that dispute was the
Circular 175 procedure, which gives eight factors, which I
detail ad nauseam or at least at length in my written
testimony, which takes a look at the final Paris Agreement and
element by element examines it to see if it meets those eight
elements. And it's--my opinion is that they meet all eight of
them; not one or two, not just five or six, but all eight, I
believe, are satisfied when you look at the extensive and
comprehensive treatment of climate change that the Paris
Agreement gives you.
So my short answer would be: the C-175 procedure is our
best test for what's a treaty.
Mr. Bishop. So how might Congress codify or clarify the
treaty process to ensure that the Senate does have that
opportunity to provide advice and consent?
Mr. Groves. Carefully. We want to be able to do so without
breaching the separation of powers. We want to do so in a way
that doesn't hamstring future Presidents, Republican or
Democrat, in making sound international agreements. I think, as
I stated earlier, if it can be done in such a way that would
foster transparency, it would--half the job would be there. As
it stands, the State Department does an internal procedure
under C-175 and ultimately submits a memo to the Chairman and
Ranking of the Senate Foreign Relations, and that's the end of
it. Very opaque. No one, I think, outside of those Committee
hearings gets to read those, and maybe sometimes they shouldn't
because they might be sensitive. But when we don't have more
transparency or more ways that both Houses can kind of examine
these things before it's too late, I think you end up with the
disputes that we are having here today with the Iran nuclear
deal and with the Paris Agreement.
Mr. Bishop. Thank you very much.
Mr. Kontorovich, can you explain to us what the current
legal status is of the statutory Iran sanctions?
Mr. Kontorovich. The statutory Iran sanctions, which have
been embodied in numerous instruments and Congress has passed
many sets of Iran sanctions, almost invariably had provisions
allowing the executive to waive or suspend or sunset them.
Congress can extend, can delegate that kind of authority to the
executive. By the same token, that which Congress giveth, it
can taketh away or limit. In INARA, and this relates to Mr.
Gohmert's comment, Congress did a very unusual thing and
flipped the majority presumption for congressional action,
which is a significant deferral to the executive. That came at
a price. The price was until the review obligations were met by
the President, existing sanctions which allowed for waiver
could not, in fact, be waived. Because those requirements were
not complied with, the previous waiver authority contained in
legislative sanctions is now suspended. That is to say: just
like the legislative sanctions allowed for waiver, there has
since been new legislation, namely INARA, which the President
signed.
Now, one might say: Isn't it a bit much because of these
IAEA documents to limit the President's waiver authority?
Again, that is not an inherent waiver authority. That's a
statutory waiver authority which can be modified by statute.
And if the President considers it very important, he could make
these documents available. More importantly, state sanctions
remain on the books. Some state sanctions are specifically
authorized in the Comprehensive Iran Sanctions and Divestment
Act of 2011, which does not given the President authority to
waive or suspend them, unlike other sanctions. More
importantly, INARA provides that it's provisions do not in any
way affect assisting sanctions for Iran for human rights and
other things, like support of terrorism, which is what some of
the state sanctions involve. So I would say that INARA locks in
and protects from executive action state sanctions that aren't
covered by CISADA, in particular those which deal with human
rights and support of terrorism.
Mr. Bishop. Thank you, sir.
I yield back, Mr. Chair.
Mr. King. The gentleman returns the time.
The Chair would now recognize the gentleman from Ohio, Mr.
Jordan.
Mr. Jordan. Thank you, Mr. Chairman.
Professor Kontorovich, good to see you again. I think the
last time we saw you was in Israel last fall. So we appreciate
you being here and the other witnesses as well. So let me see
if I can get this exactly right. This Framework on the Climate
Change treaty actually in a roundabout way is circumventing
Federal law and allowing the State Department--not allowing,
but they are usurping and violating the law and actually
sending money to an organization that--well, not even an
organization, a roundabout way they are getting money to this
organization which recognizes the Palestinian Authority as a
state. Straighten me out on what's exactly happening here.
Mr. Kontorovich. Okay. So the funding restrictions in
question block money from being given to the United Nations if
they are--treat the Palestinian Authority in various ways as a
member state.
Mr. Jordan. Right.
Mr. Kontorovich. But one of those ways is accepting them
into the various U.N. agencies. So the funding restriction says
the U.N. doesn't get money. It's not money to the Palestinian
Authority.
Mr. Jordan. Right.
Mr. Kontorovich. It's money to the U.N. agency.
Mr. Jordan. Got it.
Mr. Kontorovich. There are, in the omnibus spending bill,
various other restrictions about money going to the
Palestinians if they join the International Criminal Court,
again, restrictions which I think were written overly narrowly
in a way which make them easy to avoid. But this particular
provision is about money to the United Nations Framework
Convention on Climate Control, and it's a great place, by the
way, to take a stand on principle the question we were
discussing before.
Mr. Jordan. Sure.
Mr. Kontorovich. We are talking about $17 million. That's
not going to break the climate, and it's not going to break the
Middle East peace process.
Mr. Jordan. So where does the State Department send the
money?
Mr. Kontorovich. My understanding is they send it to the
administration of the UNFCCC, which is the Secretariat, which
gets the money and pays the bills for these U.N. agencies.
Mr. Jordan. Because in your opening statement, you said
there's a difference between--you can't send money to a treaty;
you have to send it to an organization.
Mr. Kontorovich. Right. So the United Nation's Framework
Convention on Climate Control is a treaty which creates an
organization. So the Administration says: Oh, this doesn't
count as a violation of the statute because it's not an agency.
It's a treaty.
Mr. Jordan. Yeah.
Mr. Kontorovich. Now, it's true it's a treaty, but it is
also an agency, just like the United Nations' charter is a
treaty----
Mr. Jordan. Got it. Got it.
Mr. Kontorovich [continuing]. Which creates an institution,
the United Nations itself.
Mr. Jordan. Okay. So a different subject. So you have that
problem, I think a direct violation of the law we are seeing
from our State Department, and then you also have this a bit
more, in my judgment, more fundamental problem where the Iran
agreement was not treated as a treaty, subject to the two-
thirds requirement in the Senate for ratification. Would you
agree with that?
Mr. Kontorovich. So, no, I'm afraid I would not agree with
that.
Mr. Jordan. Okay.
Mr. Kontorovich. Whether it's a treaty or not depends a lot
on whether it creates obligations for the U.S., whether it
trumps domestic law and so forth. The President has told us
that that is not the case. I take his word on it, and I think
the courts in the future if he would, for example, take action
to preempt state sanctions----
Mr. Jordan. Okay.
Mr. Kontorovich [continuing]. Would hold him at his word.
And I think it's important to maintain that this deal does not
create any international or national obligations for the United
States.
Mr. Jordan. Okay.
Mr. Kontorovich. That, by the way, also gives a lot more
room to a future Administration, for example, to deal with
potential violations by Iran under this treaty.
Mr. Jordan. All right.
Mr. Kontorovich. Under this arrangement.
Mr. Jordan. So the last point I would make, Mr. Chairman,
is we had this--it seems in my mind we've got the issue with
the climate agreement and the dollars. You have got the issue
on the whole Corker-Cardin arrangement and what that was and
how it moved through Congress. I think both of those are
concerns. But, actually, one of the other big concerns is what
we learned this week, which is this Administration, with the
Iran agreement, wasn't honest with the American people, wasn't
honest with the press. So that's even, in some ways, even more
of a fundamental problem. You cannot have people in positions,
high positions in our government, who aren't straight with the
American people. You can't have them doing a con job, which is,
based on what we have heard about Mr. Rhodes, is exactly what
they tried to do.
Mr. Groves, would you care to comment on that in my last
minute?
Mr. Groves. Well, a lot of this goes back to what I've said
about transparency. I mean, under existing procedures, when the
State Department is going to open up a new set of negotiations
about a new international agreement, it's under an obligation
to go through internal processes under C-175 and notify Senate
Foreign Relations about its intentions. What I do not know
sitting here, is if and when that notification went to Foreign
Relations? Was it back with the hardliners in 2009, or was it
when Ben Rhodes', you know, spin and, you know, his--the
picture he was painting for the press happened? That type of
transparency is the type of thing that----
Mr. Jordan. Is that something formal that they are supposed
to do, the Administration is supposed to do with the Senate
Foreign Relations and----
Mr. Groves. Absolutely. It's all under this particular
procedure, which arose from these types of disputes that
happened back in the 1950's when everyone was trying to
rebalance----
Mr. Jordan. And do we not know if that took place or do you
not know?
Mr. Groves. I don't know what you guys have in your
briefings but----
Mr. Jordan. Well, I'm just asking in a general sense. Mr.
Chairman, that might be something we want to check out to see
if they did what they are supposed to do. My guess is that if
they are willing to, you know, not communicate in an honest
fashion, they may not have done what they were supposed to do.
Mr. Groves. Yeah.
Mr. Jordan. That's something we should find out.
Mr. Groves. What I'm hearing about is--the backtrack is
these were nongovernmental channels. These were back channels,
and so they will probably take the view to the extent that this
ever comes out, that it wasn't yet ripe to trigger notification
of Senate Foreign Relations.
Mr. Jordan. Okay. Okay. Thank you, Mr. Chairman.
Mr. King. And I thank the gentleman from Ohio.
And the Chair takes note of the remarks and his testimony,
and as we compile a report, we will also review that topic.
The Chair now recognizes the gentleman from Idaho for his 5
minutes, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman, and thank you to the
witnesses for being here today.
Mr. Groves, can you briefly describe the difference between
a treaty and an executive agreement?
Mr. Groves. Well, sure. You know, the executive agreements
are usually narrow. They are often bilateral. They don't
require additional congressional legislation to implement them
or additional funding from Congress. Their provisions can
usually be executed in a fairly brief period of time. They are
less formal. There are just a number of things that history and
practice has done to separate the two. Whereas treaties are
comprehensive, lengthy, complex with lengthy periods of time,
like the Paris Agreement is open-ended--there is no end to the
provisions under it, including our obligations to fund the
Green Climate Fund and other mechanisms to the tune of billions
and billions of dollars.
Mr. Labrador. So, in your opinion, is the Paris Agreement a
treaty?
Mr. Groves. I think on all fours, it's a treaty. If you
just look at the objective factors under C-175--you look at
historical practice, you look at the commentary of legal
scholars, a lot smarter than I am--and apply that to the facts
of the Paris Agreement, I think it's uncontrovertibly a treaty.
Mr. Labrador. So can you briefly discuss Circular 175, or
C-175, and the justifications that it gives to view the Paris
Agreement as a treaty?
Mr. Groves. Say again, sir?
Mr. Labrador. Can you discuss the State Department Circular
175, and whatever justifications it gives to treat the Paris
Agreement as a treaty?
Mr. Groves. Yes, under the procedure, they are supposed to
send a memo, a comprehensive memo, to the Foreign Relations
Committee in the Senate explaining why they are going forward
in a particular way, why they are going forward as an executive
agreement versus a treaty. I'm not privy to that memorandum or
even know that it was sent or not. But I'd sure be interested
in reading it because making the case for a comprehensive
Earth-saving international agreement, I'd like to see how that
got fit into a sole executive agreement format. But I'm not
privy to that memorandum.
Mr. Labrador. So what steps or actions can Congress take in
the future to ensure that a treaty negotiated by any
Administration, whether it's the Obama, or the Trump
administration, or any other Administration, follows the proper
course of action and is properly submitted to Congress?
Mr. Groves. Well, we need to raise the level of the current
state because it was just ignored by the President. If there's
a way to codify it without breaching statute--pardon me,
without breaching the separation of powers agreements, there
are proposals that have been out there. There is a legal
scholar named Oona Hathaway who has given a comprehensive
proposal on how we might approach this issue going forward,
especially due to the huge propagation of executive agreements
and congressional executive agreements in lieu of treaties. So
it's something that the Heritage Foundation and some of my
colleagues there are exploring with the idea of proposing
legislation in the future--probably not during an election
year, but maybe thereafter--where both the House and Senate can
codify, make this process more transparent, avoid these types
of conflicts in the future because the executive branch needs
to know how much or little support it's going to have in the
future with a particular agreement. I think more transparency
is the answer.
Mr. Labrador. Maybe it might be a good idea to do it during
an election year because we don't know who the next President
is going to be, so maybe both parties can actually work
together on something like this.
Mr. Groves. Sure.
Mr. Labrador. What recourse does Congress have right now if
an Administration refuses to submit a treaty to Congress?
Mr. Groves. Well, it has got a few recourses. It can hold
hearings. It can raise the level of scrutiny on what the
President is doing. It can show the overreach. But when push
comes to shove, its number one tool is exercising the power of
the purse. And in things like the Paris Agreement--I'm unsure
about the Iran agreement--but in the Paris Agreement, it
pledges billions, tens of billions, probably over time even
more, billions and billions of U.S. taxpayer dollars to go and
finance something called the Green Climate Fund, which is going
to redistribute funds to climate-change projects all around the
world in developing countries. Congress has the absolute power
to stop that money. Thus far, it has chosen not to do so, but I
hope that this--hearings like these and Task Forces like these
continue to keep the profile high on this so that when these
funding measures come up again in the future, we can take a
very close look at them.
Mr. Labrador. Okay.
Mr. Kontorovich, I think I'm pronouncing that right, what's
the significance of the United Nations Framework Convention on
Climate Change accepting the Palestinian Authority as a state
party?
Mr. Kontorovich. The significance is that it shows that
this agency, supposedly dedicated to climate change, has
decided to embroil itself in Middle East politics and recognize
as a state party an entity that does not meet the criteria of
international statehood. They don't do this with, you know, any
other entity, with Puntland or Kurdistan. Under U.S. law, this
means that the U.S. cannot fund the relevant United Nations
agency of the framework convention.
Mr. Labrador. Does this signal then a shift or a change in
U.S. foreign policy?
Mr. Kontorovich. The U.S. policy has banned the use of
funds for this since the 1990's. The fact that the
Administration is going to probably send them a check anyway I
think doesn't signal a shift of policy so much as what the
Administration might perceive as wiggle room in the relevant
statutory language. But the executive has been lobbying
Congress to get rid of these provisions entirely. And so
Congress has to understand: this is a negotiation with the
executive. His policies are clear. It's clear what he wants,
and Congress can assert itself by giving less of that, by going
in the opposite direction, rather--so that there will be
consequences for not complying with the law.
Mr. Labrador. Thank you, I yield back.
Mr. King. The gentleman from Idaho returns his time.
This concludes today's hearing. Thanks to all of the
witnesses and Members for participating.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record. I thank the witnesses. I
thank the Members and the staff and the audience. This hearing
is adjourned.
[Whereupon, at 11:35 a.m., the Task Force was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Executive Overreach Task Force
Thank you, Mr. Chairman. Good morning and welcome to our witnesses.
We are here today to review and ``explore'' purported claims that
President Barack Obama's Administration has engaged in executive
overreach in matters of foreign affairs.
In particular, the Majority asserts that the Administration acted
beyond its executive powers when it did not submit to Congress for
ratification two agreements known as the Iran Nuclear Deal and the
Paris Climate Agreement.
During a time when our Congressional calendar days are incredibly
valuable and limited, it is disappointing that we are here
``exploring'' the validity executive actions that clearly fall within
the boundaries of well-established executive powers.
As Members of the Judiciary Committee, we all know and acknowledge
that the United States Constitution invests the President with inherent
constitutional authority in foreign affairs.
That is, pursuant to Article II, Section 2, the President's
executive authority includes the Commander-in-Chief power, as well as
the power to make treaties, by and with the advice and consent of the
Senate and provided two thirds of the Senate concurs.
Once the Senate gives consent, the treaty, pursuant to the
Constitution's Supremacy Clause, becomes the law of the land. (U.S.
Const. Art. VI, cl. 2).
This inherent power was recently protected and upheld by the
Supreme Court in Zivotofsky v. Kerry, 135 S.Ct. 2076, 2085 (2015),
which struck down a Congressional Act that constrained the President's
constitutional authority to recognize foreign states.
The Zivotofsky Court further explained that courts have
``recognized that the President has the authority to make `executive
agreements' with other countries, requiring no ratification by the
Senate or approval by Congress, this power having been exercised since
the early years of the Republic.''
And as highlighted by Mr. Vladeck in his testimony, although ``the
extent of the president's authority to conclude executive agreements is
uncertain . . . the courts have never struck down a presidential
executive agreement as unconstitutional.''
Moreover and more broadly recognized is Congress's traditional and
historically acquiesced delegation of discretion to the Executive in
matters of foreign affairs.
By the acknowledgments of the Majority's own witnesses, this
hearing is a futile attempt to control undeniably, far-reaching powers
that have been constitutionally rooted or delegated to the Executive
for more than two centuries.
Yet, President Obama has repeatedly been accused of exceeding such
powers that are simultaneously acknowledged as being readily available
and legally permissible.
While, the law always limits every power it gives, one cannot
breach boundaries that have been legally given, nor can one overreach
limitations unbreached. (David Hume)
Notwithstanding, the central issue of concern here today is whether
the Obama Administration had the constitutional authority to enter into
executive agreements without congressional assent or whether the
commitments made under these agreements may be otherwise unlawful.
The Majority fails to take into consideration the true nature of
the agreements as non-legally binding.
An international agreement is generally presumed to be legally
binding in the absence of an express provision indicating its nonlegal
nature.
State Department regulations recognize that this presumption may be
overcome when there is ``clear evidence, in the negotiating history of
the agreement or otherwise, that the parties intended the arrangement
to be governed by another legal system.''
However, there is no statutory requirement that the executive
branch notify Congress of every nonlegal agreement it enters on behalf
of the United States.
State Department regulations, including the Circular 175 procedure,
also do not provide clear guidance for when or whether Congress will be
consulted when determining whether to enter a nonlegal arrangement in
lieu of a legally binding treaty or executive agreement.
The primary means Congress uses to exercise oversight authority
over such nonbinding arrangements is through its appropriations power
or via other statutory enactments, by which it may limit or condition
actions the United States may take in furtherance of the arrangement.
the iran nuclear deal
The Iran Nuclear Agreement Review Act of 2015 (P.L. 114-17) is a
notable exception where Congress has opted to condition U.S.
implementation of a political commitment upon congressional
notification and an opportunity to review the compact.
This act was passed during negotiations that culminated in the
Joint Comprehensive Plan of Action (JCPOA) between Iran, the United
States, the United Kingdom, France, Russia, China, and Germany.
Under the terms of the agreement, Iran pledged to refrain from
taking certain activities related to the production of nuclear weapons,
while the other parties have agreed to ease or suspend sanctions that
had been imposed in response to Iran's nuclear program.
The agreement does not take the form of a legally binding compact,
but rather a political agreement which does not purport to alter their
domestic or international legal obligations.
The Iran Nuclear Agreement Review Act provided a mechanism for
congressional consideration of the JCPOA prior to the Executive being
able to exercise any existing authority to relax sanctions to implement
the agreement's terms.
Although the act contemplates congressional consideration of a
joint resolution of approval or disapproval of the agreement, it does
not purport to transform the JCPOA into binding U.S. law.
At most, the President would be authorized (but not required) to
implement the JCPOA in a manner consistent with existing statutory
authorities concerning the application or waiver of sanctions.
the paris climate agreement
In 1992 the Senate ratified the United Nations Framework Convention
on Climate Change (UNFCCC) which created several legally binding treaty
obligations upon the United States.
The Majority fails to understand that these treaty obligations,
however, did not create any quantitative reductions in greenhouse gases
(GHGs) nor did they create enforceable objectives and commitments to do
so.
Importantly, the UNFCCC qualitatively obligates the United States
to participate in and support international climate change discussions,
commits the U.S. to work towards reducing its GHG emissions, and it
signals U.S. agreement with the principal notion that climate change is
a significant future challenge that must be addressed.
The UNFCCC itself, however, creates no legally enforceable
quantitative commitments to reduce GHG emissions.
Per the UNFCCC, the 21st yearly session of the Conference of the
Parties (COP21) met in Paris starting on November 30, 2015 and later
adopted the Paris Agreement as well as a consensus decision intended to
supplement and give effect to the agreement.
The stated goal of the agreement is to ``[hold] the increase in the
global average temperature to well below 2 degrees Celsius about pre-
industrial levels'' and to pursue ``efforts to limit the temperature
increase to 1.5 degrees Celsius above pre-industrial levels,
recognizing that this would significantly reduce the risks and impacts
of climate change.''
The Paris Agreement and the decision together create a single
framework through which all of the parties, including the U.S., would
work to reduce emissions.
Significantly, the Paris Agreement contains no quantitative
emission reduction requirements nor does it contain any enforcement
mechanisms or penalties for parties who fail to meet their self-
determined NDC.
Instead, the agreement expects individual parties to set individual
GHG emission reduction goals based upon their global contribution and
their technological and economic capacities.
The transparency framework under the agreement essentially provides
the international community with the means to review the seriousness of
a parties' stated NDC and to hold parties publically accountable for
failing to set an NDC which will make meaningful progress towards the
agreement's stated goal.
Accordingly, the Administration is not constitutionally required to
present the Paris Agreement to the Senate for ratification as it is not
a treaty that ``bind[s] the United States to a course of action.''
Moreover, the Clean Air Act49 and the UNFCCC already provide
authority for President Obama to carry out the United States' NDC
commitments under the Paris Agreement.
With these considerations and facts, the misguided direction of
this hearing is undeniable.
In fact, the Majority's own witness, Mr. Kontorovich, acknowledges
in his concluding testimony that this hearing serves little purpose, if
none other than to highlight that ``Congressional legislation in these
areas is typically phrased quite narrowly and is replete with
exceptions, waiver provisions, and so forth. [And that] much of this is
justified by the need to provide the Executive with maneuverability in
the fast-changing currents of world affairs.''
As a solution, Mr. Kontorovich instructs Congress ``to write
broader, clearer legislation in the first place''--or to legislate with
an eye of ``tying the Executive's hands.''
This solution indecorously encourages Congress to actually violate
the separation of powers by creating an implausible imbalance tipped to
Congress.
The only hands that are tied here are those of the American public,
as they are denied constructive and effective legislative action by
their representational body of Congress.
I urge my colleagues to consider this much in further consideration
of hearings by this task force and committee.
Thank you.
[all]