It should be pointed out that there are plenty of international agreements that are reached without using the treaty provision in the Constitution. Most trade deals, for example, are now negotiated as congressional-executive agreements rather than treaties. And the George W. Bush administration was particularly keen on negotiating activities between executive branches rather than bothering with legislative ratification.
That said, one wonders about escalation:
As Coral Davenport noted in the Times story, this is just the latest iteration of an ongoing battle between this president and the GOP members of Congress to exert authority over policy. The result has been a president that’s growing more comfortable with executive action… and a Congress that is growing more comfortable with suing the president.
Even before this story was published, Senate Minority Leader Mitch McConnell (R-Ky.) had been talking publicly and privately about how he plans to constrain Obama’s freedom of action in the executive branch. From McConnell’s Politico interview last week:
In an extensive interview here, the typically reserved McConnell laid out his clearest thinking yet of how he would lead the Senate if Republicans gain control of the chamber. The emerging strategy: Attach riders to spending bills that would limit Obama policies on everything from the environment to health care, consider using an arcane budget tactic to circumvent Democratic filibusters and force the president to “move to the center” if he wants to get any new legislation through Congress.In short, it’s a recipe for a confrontational end to the Obama presidency.“We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy,” McConnell said in an interview aboard his campaign bus traveling through Western Kentucky coal country. “That’s something he won’t like, but that will be done. I guarantee it.”….A “good example,” McConnell said, is adding restrictions to regulations from the Environmental Protection Agency. Adding riders to spending bills would change the “behavior of the bureaucracy, which I think has been the single biggest reason this recovery has been so tepid,” he said (emphasis added).
The specific mention of the EPA suggests that if McConnell and the GOP win the midterms, this particular policy initiative will lead to some serious escalation, including the high probability of another government shutdown.
Which raises the question: Will other major emitters buy in?
Over the past year there’s been a lot of talk about the importance of “reputation” and “credibility” in international relations, of which the United States is allegedly experiencing a serious deficit. But this sort of story shows that, very often, when commentators are talking about this, they’re simplifying these concepts into “credibility to use force” or “reputation for resolve.” What often matters just as much is whether a country or a political leader has a reputation for honesty — i.e., doing what they say they are going to do.
One of the ostensible advantages of democracies is that they can credibly commit to pledges through treaty ratification. Making an agreement legally binding signals to other countries the seriousness of a country’s commitment. This is particularly true of the U.S. system. Treaties might be harder to ratify in the United States, but once they’re ratified, they’re almost never un-ratified.
Obama’s strategy of bypassing a truculent legislature to create a “politically binding” deal could work — if other countries believe that such an agreement would compel future presidents to comply with the agreement and that Congress can’t irreparably sabotage it. A Democratic Party successor would likely do so; a Republican likely wouldn’t. So if other countries sign onto this deal, consider it a bet that they think the Democrats will control the executive branch until 2020.