The climate treaty won't be the international agreement with teeth

Jonathan Zasloff, a friend/law prof/Same Facts blogger, is publishing a proposal in the Northwestern University Law Review suggesting that the US Trade Representative rather than the State Department should take the lead in negotiation a new international climate agreement. (Abstract here, you should also be able to download the full text.) His argument that USTR is better suited than State to coordinate positions of many US governmental agencies makes sense to me. He also argues that the climate agreement could include trade concessions.

This argument reminds me of one I've made for several years, that trade agreements instead of treaties should provide the real teeth for international climate agreements. The main reason is that treaties need 67 votes in the Senate while trade agreements only need 60 to overcome an initial filibuster.

I've thought I've been making a lonely argument, but maybe not. I corresponded with Jonathan, and he goes even further. Relevant parts of his email, with his permission to blog them:

I suppose that I disagree with your position because it's not clear to me why climate change agreements need to be submitted as treaties. The Third Restatement of US Foreign Relations Law endorses a pretty broad interchangeability argument.

To be sure, there are those scholars who argue against interchangeability, but it may prove too much. Laurence Tribe has at least suggested quite strongly that all agreements must be submitted as treaties, and so I think he rejects the trade/climate distinction. That could throw out more than 90% of America's international agreements! John Yoo says that something must be submitted as a treaty if it is outside Congress' Article I power, which makes sense, but then he lists a whole lot of things outside that power, which doesn't....

The most recent scholarly statement on the matter is Oona Hathaway's piece in Yale, where she basically says that outside very narrow limitations (not relevant to climate), everything can and should be submitted as an executive-legislative agreement. Her argument is basically policy-based, saying that it makes more sense to do agreements through executive-legislative agreements, and saves the treaty clause from superfluity by these very narrow limitations.

My very tentative approach is what might be called the Meat Loaf principle, i.e. two out of three ain't bad. The Treaty Clause makes sense because it essentially says that if you're going to ignore the House, you've got to get 2/3 of the Senate; if you're going to override a Presidential veto of a law implementing an international agreement, then you've got to get 2/3 of both Houses. (Interesting and subtle questions of whether an "executive-legislative agreement" can be passed over a Presidential veto, i.e. what's the difference between an executive-legislative agreement and a normal law?). It's a political issue--the way in which an agreement should be submitted depends upon the political context, i.e. whether you can get it through the House or not.

I think Jonathan is disagreeing with my exclusive reference to trade agreements, and I think he's right that any executive-legislative climate agreement would be constitutional. Doing it as a trade agreement makes political sense, though.

The other argument for why treaties shouldn't and don't need to be used was in yesterday's New York Times. Johns Yoo and Bolton argue that treaties must be used for a next climate agreement. Anything written by those two johns, particularly by them together, is guaranteed to be both wrong and evil. In particular I don't seen a logical reason why trade agreements under their own argument shouldn't be subject to two-thirds vote. I'm sure Yoo has his nonsensical reason for excluding them, but meshing a climate agreement into a trade agreement would help tie their arguments even further up in knots.

Here's hoping that Obama listens to the johns and does the opposite.

(One additional note - this isn't to say there should be no treaty at all. A treaty in addition to some other agreement would be fine, but the teeth should be elsewhere.)

UPDATE: Just checked, and Jonathan wrote about this issue yesterday.