The Silver Lining of the Withdrawal From Paris

The political and environmental worlds are up in arms over the decision by President Donald Trump to withdraw the United States from the Paris Climate Agreement. As someone with literally no understanding of environmental science or climate change, I’ll leave it to others to ruminate on the environmental implications of the withdrawal (I’d recommend the symposium Josh Busby has put together over at Duck of Minerva here as a nice starting place). However, given that the agreement was non-binding and that the US was planning on partially meeting its commitments through the production, but likely not the sale, of low-emission vehicles, the immediate effect of withdrawal is likely to hurt the US’s role as global leader more than it will damage the environment.

But there is a potential silver lining in the clouds surrounding Paris, a silver lining that is already becoming visible. Immediately after the announcement, states, cities, and private citizens began stepping up to soften the blow of the US leaving the agreement. Washington, California, and New York have created an alliance designed to help individual states produce the emission reductions that President Obama had committed the US to in the Paris agreement. Several American cities, including New York City, Los Angeles, and Salt Lake City, are submitting a proposal to the UN that their emission reductions be taken into account as part of the Paris agreement. Former mayor of NYC, Michael Bloomberg, has pledged $15 million to replace the money that the US would have contributed to the operating budget of the United Nations Framework Convention on Climate Change.

These kind of decentralized, grass roots approaches may very well be better suited to addressing the problem of climate change than a top-down process led by the federal government and driven by multi-party international agreements. International environmental issues are notoriously ill-suited to global, collective solutions or even nationalized ones. There are too many sovereign states with conflicting interests that overlap with their economic health and national security to get functional binding agreements, which is why the first attempt, the Kyoto Protocol, failed. It’s also why the Paris agreement was not legally binding–that was the only way to get nearly every country on board. States and national-level politicians are hesitant to make binding agreements that will limit their economic health in the short-run for long-term benefits for which they won’t reap any electoral benefit. Experimentation in the laboratories of multiple states and cities might be more likely to develop scientific breakthroughs. And the outrage and attention stirred up by such a flagrant rejection of global norms and environmental sensibility, combined with the general anti-Trump sentiment, might just keep today’s reactions going strong into the future, producing a stronger environmental movement and better

While I’m not happy with the president’s decision to withdraw from Paris, largely for the damage it will do to America’s broader foreign policy goals–especially in the context of the other signals from Trump that the US is pulling back from its traditional role as global leader. But the silver lining may very outweigh the environmental impact of the US’s efforts.

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Can President Trump Withdraw the US From NAFTA?

Word is circulating in Washington, DC that President Trump is considering withdrawing the United States from the North American Free Trade Agreement between the US, Canada, and Mexico. While it’s not clear whether he will (Republicans are reportedly urging Trump not to withdraw from the agreement) or why he is considering such a move (does he really want the US out of NAFTA or is this just a brinksmanship-like move to try to create better negotiating terms and win conditions more favorable to the US?), it’s also unclear whether the president can, in fact, unilaterally terminate the US’s participation in the agreement.

The Constitution, which specifies the process by which the US joins a treaty (negotiated and signed by the president and subjected to advice and consent by two-thirds of the Senate) is silent on the issue of treaty termination. However, it is (more or less) well-established that the president can, subject to the specific termination language in each agreement, withdraw the US from agreements without Senate consultation. President Carter withdrew the US from a mutual defense treaty with Taiwan and President Bush withdrew the US from the 1972 Ant-Ballistic Missile Treaty, both without any role for the Senate.

But, NAFTA is not a treaty; rather, it is a congressional-executive agreement (CEA). A CEA is negotiated by the executive branch, but is presented to both the House of Representatives and the Senate as a piece of legislation, rather than being submitted to the Senate for advice and consent. Trade agreements are often enacted in the US as CEAs because they require a huge amount of implementing legislation, which given Congress’s constitutionally-mandated role in domestic economic policy and interstate commerce, demands a more active role of both branches than the treaty clause provides.

Because NAFTA is a CEA it’s unclear whether the president can withdraw the US in the same way as it it were a treaty. NAFTA does contain a withdrawal clause that provides for termination of a country’s participation six months after notification of intent to withdraw. But this still leaves two important questions. First, since both the House and the Senate voted on NAFTA, can the withdrawal clause be initiated solely by the president or would Trump need a congressional vote? Second (and this is, to me, the more interesting question), since NAFTA itself is not a self-executing treaty but rather a CEA that has been implemented by laws, what happens to those laws if the US does end its involvement in the agreement? Or, to put it another way, does withdrawal from NAFTA automatically terminate the implementing legislation? Some of the NAFTA implementing legislation contains language indicating that the law will be nullified upon termination of the agreement, but not all of it does.

The first question has been debated in multiple contexts: Julian Ku suggests that the president cannot unilateral terminate a CEA, while Michael Ramsey disagrees. I tend to think that the president’s foreign affairs authority, and especially the power to negotiate agreements (which can be understood to include the power to terminate those agreements ) and the logic of termination (it should be difficult for the US to get into an international agreement, but it makes less sense to envision that the Congress should be able to keep the US in an agreement that the president has decided are no longer in the national interest) argue in favor of allowing unilateral executive termination.

The second question is much more difficult, however. The constitutional separation of the executive from the legislative power is one of the most important structural features of the Constitution. It is hard to imagine a situation in which the president could be constitutionally allowed to nullify a raft of duly-passed laws by withdrawing from an international agreement. Furthermore, the presentation clause provides that the way by which the president can reject laws is through the veto which is subject to being overridden by two-thirds votes in both houses of Congress. The Constitution clearly subordinates the president’s role in legislation to that of Congress, and Congress is the ultimate arbiter of what laws do and do not get passed.

On the other hand, it seems weird that the president could withdraw the US from an international agreement and yet the agreement would largely remain in force by dint of the implementing legislation continuing in place. That seems to eviscerate the meaning of withdrawal.

And yet that is, to my mind, what is required. The Constitution allows the president to choose the format any international agreement will take; while there is a powerful logic in favor of conducting trade agreements, the Constitution does not require it. By choosing to involve Congress in the making of the agreement, the president is also involving Congress in its unmaking. Termination still has some effect, as the US would no longer be bound by anything not specifically implemented in legislation and significant amounts of legislation would be automatically nullified in the event of withdrawal.

So, while President Trump can withdraw the US from NAFTA, that withdrawal will not end all of the US’s compliance with the agreement. For that, he will need Congress. If his rationale for threatening withdrawal is really an effort to improve his bargaining position, that might not matter. But if he really wants to end the free trade between the US, Canada, and Mexico, that will take a lot more work than the stroke of a pen.

Heck of a Secret Plan, Trumpy!

During his presidential campaign, Donald Trump bragged about his “secret plan” to defeat the Islamic State, and while he vowed to only unveil his plan if elected president, he did let slip at least one component of this plan: That he would “bomb the shit” out of ISIS. So far, just over two months into his presidency, it seems clear that, unsurprisingly to most, that his secret plan is little more than trying to bomb the shit out of ISIS and al Qaeda.

So what does a strategy of bombing the shit out of ISIS look like in practice? First, it starts by rolling back legal safeguards on “United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force against ISIS.” Next, it ramps up the intensity of air sorties, including a huge increase in the number of air strikes in Yemen against al Qaeda in the Arabian Peninsula. Then, it rolls back rules intended to limit accidentally killing civilians by applying war-zone targeting rules in Somalia.

It’s far too early to know if bombing the shit out of ISIS, al Qaeda, al-Shabaab, and other assorted groups is paying off. What we do know is that large numbers of civilians are being killed by US air strikes, likely including approximately 50 people in a Syrian mosque, more than 30 people sheltering in a Syrian school, and well over 100 people in Mosul. We also know that ISIS has adapted to the increased tempo of US airstrikes by herding civilians into buildings and then conducting military operations out of those buildings so as to attract a US airstrike, hoping that rising civilian casualties will pressure the US to pare back its air operations.

It’s also too early to say whether the change in sortie rate and the loosening of targeting rules is the cause of the recent civilian deaths. But, what can be said is that, so far, there seems to be little signs of a larger strategy for defeating ISIS, al Qaeda, et. al, other than by bombing the shit out of them.

Continue reading “Heck of a Secret Plan, Trumpy!”

Why the Pathological Lying by President Trump Matters

After several waves of bomb threats against Jewish Community Centers across the country, an arrest has been made. But the accused comes as a surprise to most: a Jewish dual-citizen of the US and Israel. But perhaps not to President Trump who, several weeks ago, made the claim that the threats could be being made by a “false flag” operation. There’s no evidence yet that the suspect–a teenager–is either guilty or operating on behalf of anyone in an effort to discredit the Trump administration. But, given the president’s tenuous grasp of nuance and complexity, it’s entirely possible that he had received an intelligence briefing suggesting the identity of the culprit, and jumped to the potentially erroneous conclusion that a Jew making bomb threats against JCCs must be a false flag operation by Democrats against his administration.

Trump’s beliefs aside, this is why it matters that the president lies constantly and without apparent self-consciousness or remorse. If Trump had indeed been told by US intelligence agencies that the suspect was a Jewish Israeli-American citizen, his constant lying meant that few would believe his seemingly outrageous claim that the threats were a false flag operation (never mind whether the president should be casually commenting on on-going criminal/terrorism investigations or his possible misinterpretation of the political nature of the threats). As James Fallows noted, now seemingly presciently, earlier this week, a president needs the public to believe what he says because:

Something has happened to every new president, and something will happen to Donald Trump. It is inevitable. And when that something occurs, it is also inevitable that his administration will need to say, Trust us on this. That’s in the nature of foreign emergencies. It can take a long time to figure out the truth. Even when the truth is known, some of it remains too sensitive to reveal. (Who exactly were the Bay of Pigs invaders hoping to find as allies inside Castro’s Cuba? What exactly was aboard the U.S. surveillance plane that was forced down onto Chinese territory?) So without having all the facts on the table and in public view, an administration inevitably relies on a cushion of domestic and international trust that it is telling some version of the truth, that it is doing its best to weigh evidence and be straight about the results.

The inevitability of this moment, when a new president says Trust me, is why so many veteran officials have warned about Donald Trump’s habit of incessantly telling instantly disprovable lies. Some of the lies don’t really matter: “biggest inaugural crowd ever,” when photos showed it was comparatively small. Some of them obviously would matter, if they were true: millions of illegal voters, wiretapped by Obama. But of course they’re not true, and everyone except Trump and his coterie can look at the evidence and know that. Thus the problem: If an administration will lie about facts where the contradictory evidence is in plain sight, how can we possibly believe them on anything else?

Representative Adam Schiff made the same point a few days earlier:

“If six months from now the president should say that Iran is cheating on the nuclear agreement, if he’s making that up, it’s a real problem,” Schiff said. “If he’s not making [it] up and it’s true, it’s an even bigger problem because the question is: Would people believe him? Would the American people believe him? Would people around the world believe him? And that has real-world consequences.”

Did the president know about the identity of the suspected bomb threat maker? It’s too early to tell. But even if he did, it was perfectly reasonable for people to dismiss the president’s accusation. And it will be perfectly reasonable for us to dismiss anything and everything he says so long as he continues to demonstrate a reckless disregard of truths that are patently obvious.

 

Trump’s New Deportation Rules Will Have a Harsh Effect in Mexico

On January 25, President Trump signed two executive orders laying out new rules to treat unauthorized immigrants on the US-Mexico border and within the US. On Monday, Homeland Security issued memos on how to implement them.

This is all very much consistent with Trump’s campaign promises regarding immigration and Mexico. Having said that, from Mexico’s point of view there are some things to consider, particularly given that Homeland Security is planning to send people back “to the territory from which they came”, regardless of their nationality and without a resolution from immigration courts. This means that the US would be sending hundreds of thousands of migrants from Central and South America, and even from Haiti, Cuba, and Africa, back to Mexico.

Continue reading “Trump’s New Deportation Rules Will Have a Harsh Effect in Mexico”

How To Sell Weapons to Saudi Arabia (Hint: you have to let Congress know)

In the Sunday edition of the New York Times, there was a story in which it was alleged that the National Security Council Staff was in much more disarray than is normal even for a new administration.

I want to focus on just one point in that NYT story, though, because it’s a point that may have escaped a lot of readers:

“Two people with direct access to the White House leadership said Mr. Flynn was surprised to learn that the State Department and Congress play a pivotal role in foreign arms sales and technology transfers. So it was a rude discovery that Mr. Trump could not simply order the Pentagon to send more weapons to Saudi Arabia.”

Continue reading “How To Sell Weapons to Saudi Arabia (Hint: you have to let Congress know)”

Update on Iran’s Missile Tests

Several people have, either in the comments on the original post or on Facebook, asked about the US’s response to the Iranian missile test on Sunday, January 29. On Friday, February 3, the Trump administration levied sanctions against 13 individuals and 12 companies associated with Iran’s missile program. This was followed by a war of words, with President Trump and National Security Adviser Flynn warning Iran about further tests and telling Iran that they had it easy under President Obama, while Iran called out Trump as an “inexperienced person.” The sanctions are rather limited, as they do not touch Iran’s $16 billion deal with Boeing and aren’t significantly more punishing that the sanctions regime already in place.

So, what did Iran likely learn from these events? Given that they conducted a series of missile tests on Saturday, February 4, the day after the imposition of the new sanctions, it’s likely that they learned–rightly or wrongly–that the Trump administration is lots of bluster but is ultimately nothing to fear. True, the most recent missile launches were conducted entirely within Iranian sovereign airspace, making them less problematic for the international community. But the test should still be seen as an act of defiance.

Continue reading “Update on Iran’s Missile Tests”