The United States, Environmental Agreements, and the Political Question Doctrine
44 Pages Posted: 3 Jun 2015
Date Written: June 2, 2015
For two decades, between 1994 and 2014, the United States almost never joined an international environmental agreement. Presidents continued to negotiate agreements, sign them, and send them to the Senate for its advice and consent, but the agreements almost always died there, unable to satisfy the requirement under Article II, Section 2 of the U.S. Constitution that treaties sent to the Senate require two-thirds approval. Last year, the Obama Administration bypassed the Senate graveyard by joining the Minamata Convention on Mercury without explicit legislative approval. Its decision received little attention and no opposition. But both will be abundant next year if, as seems likely, President Obama decides to join a new agreement on climate change without seeking Senate advice and consent.
This article does not assess whether such an agreement would be constitutionally valid. Instead, it examines a preliminary question: what is the role of the judiciary in reviewing the validity of a decision not to submit an agreement to the Senate? Should the federal courts review the constitutionality of the procedure chosen to bind the United States to an international agreement, or should they regard the issue as a non-justiciable political question better left to the political branches? After canvassing the small number of precedents, I suggest a bifurcated approach that comports with the precedents and, more generally, with the role of the judicial branch in the U.S. system of separated powers. If an agreement receives explicit legislative authorization, including by a majority vote of both houses of Congress, then the courts should treat the issue as a political question. But if the United States joins the agreement on the basis of the President’s constitutional authority or on the basis of legislation that does not clearly authorize or approve the agreement, then the courts should consider the issue of constitutionality on its merits.
Keywords: treaties, political question, multilateral environmental agreements, climate change, Minamata Convention
JEL Classification: K32, K33
Suggested Citation: Suggested Citation