EPA to get Treaty Powers?

The United States' founding fathers reserved the treaty-making power to those measures that receive two-thirds of those Senators voting. Only the most serious subjects received such "super-majority" treatment. Yet a bill currently before that body illustrates how the Senate continues to erode its constitutionally granted role in providing "advice and consent" on foreign commitments.

The Senate Foreign Relations Committee’s authoritative “Treaties and Other International Agreements: The Role of the United States Senate” (S.Rpt. 106-71, 2001), offers many lessons on the modern treaty process. Among them is a recounting of the Committee’s lack of success reining in creative Executives. Of specific interest is the recent trend of agreements prohibiting Senate “reservations”, and employing treaties not as literal commitments but omnibus grants of authority in a particular realm.

Current developments make this attempt at oversight, and even those past outrages drawing Committee ire, seem like the golden age of treaty-making constitutional adherence.

The Vienna Convention on the Law of Treaties defines a reservation as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. Thus has the Senate historically established just what it believed it agreed to, pursuant to its obligation under Article II, Section 2, to “advise and consent” on foreign entanglements.

What got the Senate’s attention in 1992 was the election-year United Nations Framework Convention on Climate Change (UNFCCC or “Rio”). This first “global warming” treaty was hurriedly agreed to by the Bush Administration after its public relations beating at Rio’s so-called “World Environment Summit”. The Senate then embarrassingly rushed to prove its own green bona fides, unanimously ratifying in October a treaty agreed in May, signed in June and transmitted to the Senate precisely one month prior.

Rio represented a remarkable gestation period from agreement to ratification of merely 150 days. Among the ultimately 187 parties to Rio only the Seychelles and Mauritius acted faster. The idea of tackling constitutional affronts did not occurred to the world’s greatest deliberative body what with the need to get home and get reelected.

Regardless, a mere 5 years later and with no such excuses of campaign expediency, President Clinton accepted a treaty amending the very same Rio, the Kyoto Protocol, also prohibiting reservations. This came mere months after the Senate providing unsolicited “advice”, 95-0, not to engage in any treaty bearing Kyoto’s eventual hallmarks.

Subsequent to insultingly eschewing half of Article II’s “advice and consent”, the Clinton Administration unceremoniously ditched the entirety by initiating what came to be known as Kyoto’s “implementation without ratification”.

Congressional oversight committees – principally in the House, not even the body whose prerogatives were being usurped – made a few noises but no remedial action was taken.

Instead, we now find the increasingly emasculated Senate hard at work to further abdicate its responsibilities before leaving for the year. Its leaders are hard at work trying to find floor time for a bill empowering the Environmental Protection Agency to hammer out binding international agreements with their Doppelganger agencies worldwide.

Past treaties, e.g., the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, were silent on whether expanding the treaty’s scope also required specific adoption, or ratification. This was of course because materially altering an international agreement presumptively necessitates specific, discrete agreement. In the eyes of the global governance crowd, however, a treaty’s scope is not the organic pact’s express list of, e.g., substances agreed to be covered as “ozone depleting,” but such substances according to whatever body the treaty created to implement it. Between the two positions lies a world of sovereignty.

“Treaty-creep” efforts at expanding Montreal’s reach brought this conflict to the fore. Never again, both sides swore, would this issue be left to chance.

Naturally, this philosophical difference was not resolved in the next likely agreement rolling down the pike, this time the Stockholm Convention on Persistent Organic Pollutants (POPs). As such POPs, which the Bush Administration has pledged to adopt, also leaves to chance the interpretation of its ultimate scope.

The Senate, however, is taking no chances: in its legislation implementing POPs it seeks to grant an independent agency the power to expand POPs’ coverage, a function previously reserved by practice and, oh yes, the Constitution. If this legislation passes, which the Republican-controlled Senate has already moved through committee and which only awaits floor time, the Senate will have further eroded its constitutional role in foreign policy by awarding an agency the ability to add chemicals or substances to the list of internationally – and domestically – banned substances (the actual POPs treaty, for the record, has yet to receive a ratification vote).

Yes, industry groups are in favor of this agreement, for their various commercial reasons. Certain enterprises even support Kyoto, for the “rents” it will provide in the near-term. This does not imply policy wisdom let alone rationale to grant a regulatory agency – particularly one with such a track record of crying wolf to increase its own authority – the treaty-making power reserved by our founding fathers for a two-thirds vote of the Senate.

Proponents of this specific erosion quietly advance one particularly ironic rationale, that enacting domestic legislation consistent with the treaty fulfills our signed obligations, but can be amended without all of the Sturm und Drang concomitant with amending treaties. Recall those rancor-free debates over improving the Clean Air and Clean Water Acts?

The POPs treaty, by the way, prohibits reservations. This anomaly has somehow found its way, over the objections of even a Democrat-controlled Foreign Relations Committee, to become the norm. There is no reason to believe that, should the Senate acquiesce to cede treaty-making power to an agency, this anomaly, too will not become routine.