(CNSNews.com) – Sen. Ted Cruz (R-Texas) is urging President Trump to submit for Senate consideration two signature Obama-Biden foreign policy initiatives, which Trump has repudiated. That would make it harder for the incoming administration to reverse course as it has pledged to do.
Should the Iran nuclear deal and Paris climate accord be submitted as treaties, the chances of their future approval are exceedingly slim, given the constitutional requirement for two-thirds of the U.S. Senate to approve any treaty before it can enter into force.
Republican opposition to both agreements runs deep, and for that precise reason the Obama administration chose to treat the 2015 Joint Comprehensive Plan of Action (JCPOA) nuclear deal and the 2016 Paris climate pact not as treaties, but as a “political agreement between governments” and an “executive agreement” respectively.
Trump withdrew from both agreements, and Joe Biden has promised to return to them – in the case of Paris, on the first day of his presidency.
In a letter to Trump and Secretary of State Mike Pompeo, Cruz described the withdrawals from the JCPOA and Paris accord as “a great accomplishment for the American people” and urged Trump to submit them now to the Senate “as treaties.”
“Only by submitting them to the Senate will the Senate be able to satisfy its constitutional role to provide advice and consent in the event any future administration attempts to revive these dangerous deals,” he wrote.
Revisiting the Obama administration’s handling of the accords, Cruz said that they “could and should have been submitted as treaties given their sweeping scope and immense implications for American foreign and domestic policy.”
“The Paris Agreement, for example, was lauded as the ‘most ambitious climate change agreement in history.’ The Iran Deal, meanwhile, was situated as ‘the most consequential foreign policy debate that our country has had since the invasion of Iraq.’”
“The only reason the Obama administration refused to submit these agreements to the Senate as treaties was that it knew that the agreements were deeply unpopular and doomed for defeat,” he wrote.
In July 2015, then-Secretary of State John Kerry acknowledged as much, telling the House Foreign Affairs Committee that the administration was not dealing with the JCPOA as a treaty “because you can’t pass a treaty anymore.
“It’s become impossible to, you know, schedule [a debate and vote],” Kerry said at the time. “It’s become impossible to pass.”
(Despite Kerry’s claim, the Senate approved more than two dozen treaties during the Obama administration – including the New START arms reduction treaty with Russia in 2010 – and more than 100 treaties during the George W. Bush administration.)
In the absence of a Senate advice and consent role, Congress sought a say on JCPOA in the form of a “resolution of disapproval.” But in a series of votes in 2015 all but four Senate Democrats blocked attempts to advance the resolution.
Nine months after Trump took office, a Harvard-Harris opinion poll found that 70 percent of respondents felt the JCPOA should be re-negotiated, and 81 percent of respondents said any new deal should be a treaty, requiring Senate ratification.
‘Not legally binding’
Kerry was instrumental in negotiating both the JPCOA and Paris agreements. He is set to make a return to government within weeks, as climate change czar in a Biden administration.
During the Paris negotiations, Kerry irked French President Francois Hollande by insisting that the climate accord would not be a legally-binding treaty – even as Republican senators pushed unsuccessfully for the administration to submit the agreement to the Senate, as a treaty, for advice and consent.
In the summer of 2016, senior White House advisor Brian Deese reiterated the administration’s approach: “The Paris agreement is an executive agreement, and so the president will use his authority, that has been used in dozens of executive agreements in the past, to join and formally deposit our instrument of acceptance and therefore put our country as a party to the Paris agreement.”
White House press secretary Josh Earnest the same day said that the way the Paris agreement was structured allowed President Obama to implement it using authority already given by Congress – a reference to the U.N. Framework Convention on Climate Change (UNFCCC), a treaty which the Senate did ratify, back in 1992.
In his letter, Cruz challenged the notion that Obama could characterize as non-legally-binding an agreement that committed the United States to specific actions.
“Simply put, a President does great damage to the separation of powers if he arrogates the treaty power entirely to himself by altering the terms of an agreement so that most or all of the provisions are not legally binding, even as they politically and practically commit United States to a course of action opposed by Congress.”
Last week Sen. Lindsey Graham (R-S.C.) indicated that he was pushing for the Senate to have a say on both the JCPOA and Paris deals.
“Working hard to secure a vote in the U.S. Senate regarding any potential decision to reenter the Iran nuclear deal (JCPOA). Rejoining this agreement would be the most destructive decision a Biden administration could make regarding stability in the Middle East,” he tweeted. “The Senate should go on the record about whether it would support or oppose this decision.”
“Also believe Senate should be on record in support or opposition to any decision to reenter Paris Climate Accord. As currently drafted, the Accord is a big win for China and India. These two nations are enormous CO2 emitters and, under the Accord, go virtually unchallenged. Climate change is a worldwide problem, not just an American problem.”
Large Majorities of US Voters Think Iran Deal Should be Reworked and Require Senate Ratification (Oct. 24, 2017)
Kerry: Iran Deal Not a Treaty ‘Because You Can’t Pass a Treaty Anymore’ (Jul. 29, 2015)