4 ms·

Not that I don't support this move but doesn't this violate the Constitution ("No State shall enter into any Treaty, Alliance, or Confederation")? https://en.w

Not that I don't support this move but doesn't this violate the Constitution ("No State shall enter into any Treaty, Alliance, or Confederation")? https://en.wikipedia.org/wiki/Contract_Clause https://en.wikipedia.org/wiki/Contract_Clause

octonion 9y ago
No.
- mondoshawan 9y ago
  Maybe not the contract clause, but what about this? > No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Foreign policy is reserved for the federal government, is it not?
  - philipov 9y ago
    Maybe California is itching for a constitutional crisis to push for a constitutional convention?
    - cryptonector 9y ago
      With nearly 3/4s of State legislatures in the hands of one party (Republican), a Constitutional Convention is not farfetched, and a constitutional crisis won't be needed to force it, and California almost certainly doesn't want it (since CA is Democrat).
  - d0ne 9y ago
    "...in such imminent Danger as will not admit of delay." Not a lawyer, but California may deem the exiting of the Paris agreement at a Federal level imminent Danger to their citizens.
    - mondoshawan 9y ago
      Perhaps? The clause seems very specific toward war, however. One of those cases where I kinda wish English had math parens. :-p
      - d0ne 9y ago
        Agreed on both fronts :)
PunchTornado 9y ago
Yes it is. Even for agreements, not treaties, with foreign powers, the states need Congress' approval. I think it is merely symbolic, as California can accomplish its climate targets voluntarily without any agreements. This meeting was just to give the finger to the Trump administration and show them that the power is local.
- mondoshawan 9y ago
  Maybe? Still more than just symbolic, though. An agreement was actually signed by the governor of California with a foreign power. He didn't just do it as a symbol -- it was actually an agreement to adjust trade, and who knows what else behind closed doors.
- autokad 9y ago
  does it give a finger to the trump administration? to me it means we can accomplish things without a symbolic accords that will cost the US 3 billion.
  - 24gttghh 9y ago
    So we're pulling out because of 3 Billion dollars? That's nothing on the global scale.
    - PunchTornado 9y ago
      2 billion. Obama already paid 1bn.
- cryptonector 9y ago
  Considering the expansive, still in force, New Deal era interpretation of the Commerce Clause, the U.S. could challenge California's actions in federal court and possibly win. Who knows. Maybe we can get a better interpretation of the Commerce Clause out of it!
24gttghh 9y ago
313 U.S. 69 (1941) >A State has power to govern the conduct of its citizens upon the high sea with respect to matters in which the State has a legitimate interest and where there is no conflict with Acts of Congress Sounds like a fun Supreme Court case :) Also, from the article: >Like the Paris accord, the deals are all non-binding. They call for investments in low-carbon energy sources, cooperation on climate research and the commercialization of cleaner technologies. Which doesn't sound like a Treaty (in the same way the Paris Accord was not a treaty as the US President unilaterally signed the agreement without consent of Congress)
- cryptonector 9y ago
  FWIW, some executive agreements have the force of treaty without needing ratification. These are generally authorized by statute or by a previous ratified treaty.
  - 24gttghh 9y ago
    Is this one of them?
    - cryptonector 9y ago
      Good question. I've seen claims that it is, authorized by the UNFCC treaty. But honestly, I've not read the contents of the Paris accord (https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf), so I wouldn't know. Note that this is an important question. IF the Paris accord is a binding executive agreement authorized by the UNFCC treaty, and if there were no controversy about that (or the U.S. courts found that it is a valid executive agreement and in force), then it would be true that withdrawing from it would be subject to withdrawal clauses. On the other hand, if it is non-binding, and/or subject to ratification by the Senate, then withdrawal clauses cannot be applicable no matter how much European powers claim they must be, at least not as to U.S. law. (Foreign powers might apply sanctions, though that seems unlikely, to enforce withdrawal clauses.) Of course, POTUS could always abrogate the UNFCC treaty if U.S. courts were to find that the Paris accord is a binding executive agreement not subject to ratification by the Senate, if POTUS found the withdrawal clauses too onerous. POTUS can abrogate treaties unilaterally, without negotiation or approval from either house of Congress or anyone else. Bush abrogated the ABM treaty, you might recall.
wesnerm2 9y ago
There are three types of "treaties," only one of which requires a two-thirds vote by the Senate--the restricted interpretation of treaties in the US constitution, congressional-executive agreements and sole-executive agreements. "They are all considered treaties under internal law, but are distinct from the perspective of US law." Treaties has the force of law and are permanent, but can be repealed by an act of Congress... "By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President.[1] Likewise, a sole-executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President." https://en.wikipedia.org/wiki/Treaty_Clause https://en.wikipedia.org/wiki/Treaty_Clause
- cryptonector 9y ago
  It's a heck of a lot more complicated than that, mostly because the Constitution says nothing about this topic. The U.S. has abrogated quite a few treaties[0]. Often it's been by Presidential fiat alone. There is not much case-law on the subject, and it's almost certainly a "political question" that the courts will not go near (lower courts might, but the SCOTUS almost certainly will refuse to decide whether POTUS or Congress can do this alone). Among other things there is the question of who has standing to bring suit, and that's a high enough bar to begin with. The last time the SCOTUS had a chance to say much about this, they said they couldn't[1] (but with only a plurality, not majority, so there is no precedent yet): "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." (the impasse being Congress passing a resolution opposing the President's action, which Congress did not do). [0] http://www.ea.sinica.edu.tw/QDown.ashx?ID=5563 http://www.ea.sinica.edu.tw/QDown.ashx?ID=5563 [1] http://caselaw.findlaw.com/us-supreme-court/444/996.html http://caselaw.findlaw.com/us-supreme-court/444/996.html
dragonwriter 9y ago
Probably not; I'm pretty sure the accepted interpretation is that binding agreements are forbidden, and paragraph 6 of the MOU between China and California [0] states “This MOU serves only as a record of the Participants' intentions and does not constitute or create any legally binding or enforceable rights or obligations, expressed or implied.” And paragraph 8 states “This MOU is neither a contract nor a treaty”. Similar non-binding agreements between states (and in some cases subdivisions of states) and foreign countries (or subdivisions thereof) are extremely common, and I don't think anyone in the federal government wants to force them all through federal approval, even leaving aside the legalities. [0] https://www.gov.ca.gov/news.php?id=19832 https://www.gov.ca.gov/news.php?id=19832

octonion 9y ago

No.

mondoshawan 9y ago
Maybe not the contract clause, but what about this? > No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Foreign policy is reserved for the federal government, is it not?
- philipov 9y ago
  Maybe California is itching for a constitutional crisis to push for a constitutional convention?
  - cryptonector 9y ago
    With nearly 3/4s of State legislatures in the hands of one party (Republican), a Constitutional Convention is not farfetched, and a constitutional crisis won't be needed to force it, and California almost certainly doesn't want it (since CA is Democrat).
- d0ne 9y ago
  "...in such imminent Danger as will not admit of delay." Not a lawyer, but California may deem the exiting of the Paris agreement at a Federal level imminent Danger to their citizens.
  - mondoshawan 9y ago
    Perhaps? The clause seems very specific toward war, however. One of those cases where I kinda wish English had math parens. :-p
    - d0ne 9y ago
      Agreed on both fronts :)

PunchTornado 9y ago

Yes it is. Even for agreements, not treaties, with foreign powers, the states need Congress' approval. I think it is merely symbolic, as California can accomplish its climate targets voluntarily without any agreements. This meeting was just to give the finger to the Trump administration and show them that the power is local.

mondoshawan 9y ago
Maybe? Still more than just symbolic, though. An agreement was actually signed by the governor of California with a foreign power. He didn't just do it as a symbol -- it was actually an agreement to adjust trade, and who knows what else behind closed doors.
autokad 9y ago
does it give a finger to the trump administration? to me it means we can accomplish things without a symbolic accords that will cost the US 3 billion.
- 24gttghh 9y ago
  So we're pulling out because of 3 Billion dollars? That's nothing on the global scale.
  - PunchTornado 9y ago
    2 billion. Obama already paid 1bn.
cryptonector 9y ago
Considering the expansive, still in force, New Deal era interpretation of the Commerce Clause, the U.S. could challenge California's actions in federal court and possibly win. Who knows. Maybe we can get a better interpretation of the Commerce Clause out of it!

24gttghh 9y ago

313 U.S. 69 (1941) >A State has power to govern the conduct of its citizens upon the high sea with respect to matters in which the State has a legitimate interest and where there is no conflict with Acts of Congress Sounds like a fun Supreme Court case :) Also, from the article: >Like the Paris accord, the deals are all non-binding. They call for investments in low-carbon energy sources, cooperation on climate research and the commercialization of cleaner technologies. Which doesn't sound like a Treaty (in the same way the Paris Accord was not a treaty as the US President unilaterally signed the agreement without consent of Congress)

cryptonector 9y ago
FWIW, some executive agreements have the force of treaty without needing ratification. These are generally authorized by statute or by a previous ratified treaty.
- 24gttghh 9y ago
  Is this one of them?
  - cryptonector 9y ago
    Good question. I've seen claims that it is, authorized by the UNFCC treaty. But honestly, I've not read the contents of the Paris accord (https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf), so I wouldn't know. Note that this is an important question. IF the Paris accord is a binding executive agreement authorized by the UNFCC treaty, and if there were no controversy about that (or the U.S. courts found that it is a valid executive agreement and in force), then it would be true that withdrawing from it would be subject to withdrawal clauses. On the other hand, if it is non-binding, and/or subject to ratification by the Senate, then withdrawal clauses cannot be applicable no matter how much European powers claim they must be, at least not as to U.S. law. (Foreign powers might apply sanctions, though that seems unlikely, to enforce withdrawal clauses.) Of course, POTUS could always abrogate the UNFCC treaty if U.S. courts were to find that the Paris accord is a binding executive agreement not subject to ratification by the Senate, if POTUS found the withdrawal clauses too onerous. POTUS can abrogate treaties unilaterally, without negotiation or approval from either house of Congress or anyone else. Bush abrogated the ABM treaty, you might recall.

wesnerm2 9y ago

There are three types of "treaties," only one of which requires a two-thirds vote by the Senate--the restricted interpretation of treaties in the US constitution, congressional-executive agreements and sole-executive agreements. "They are all considered treaties under internal law, but are distinct from the perspective of US law." Treaties has the force of law and are permanent, but can be repealed by an act of Congress... "By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President.[1] Likewise, a sole-executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President." https://en.wikipedia.org/wiki/Treaty_Clause https://en.wikipedia.org/wiki/Treaty_Clause

cryptonector 9y ago
It's a heck of a lot more complicated than that, mostly because the Constitution says nothing about this topic. The U.S. has abrogated quite a few treaties[0]. Often it's been by Presidential fiat alone. There is not much case-law on the subject, and it's almost certainly a "political question" that the courts will not go near (lower courts might, but the SCOTUS almost certainly will refuse to decide whether POTUS or Congress can do this alone). Among other things there is the question of who has standing to bring suit, and that's a high enough bar to begin with. The last time the SCOTUS had a chance to say much about this, they said they couldn't[1] (but with only a plurality, not majority, so there is no precedent yet): "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." (the impasse being Congress passing a resolution opposing the President's action, which Congress did not do). [0] http://www.ea.sinica.edu.tw/QDown.ashx?ID=5563 http://www.ea.sinica.edu.tw/QDown.ashx?ID=5563 [1] http://caselaw.findlaw.com/us-supreme-court/444/996.html http://caselaw.findlaw.com/us-supreme-court/444/996.html

dragonwriter 9y ago

Probably not; I'm pretty sure the accepted interpretation is that binding agreements are forbidden, and paragraph 6 of the MOU between China and California [0] states “This MOU serves only as a record of the Participants' intentions and does not constitute or create any legally binding or enforceable rights or obligations, expressed or implied.” And paragraph 8 states “This MOU is neither a contract nor a treaty”. Similar non-binding agreements between states (and in some cases subdivisions of states) and foreign countries (or subdivisions thereof) are extremely common, and I don't think anyone in the federal government wants to force them all through federal approval, even leaving aside the legalities. [0] https://www.gov.ca.gov/news.php?id=19832 https://www.gov.ca.gov/news.php?id=19832