Who Do You Think We Are, Mr. President? Subjects or Citizens?

Put aside all the serious fights over the climate science, the astronomical costs associated with capping carbon emissions, the endless demands for carbon reparations, compliance and verification, etc., the only question that really matters this week at the Copenhagen Conference on climate change is whether President Obama is really going to end up corrupting the American constitutional system in front of the entire world.

Who will President Obama heed? The American people and our constitutional system of checks and balances, or the collection of dictators, tyrants, and mostly undemocratic heads of government convened by the United Nations in Copenhagen this week? They are tempting the American president to do what he wants to do and what they mostly do: ignore the will of their own people and sign a political agreement based on an unconstitutional sham.

Article 2, Section 2 of the U.S. Constitution is crystal clear: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

In 1997, the U.S. Senate voted 95-0 to tell President Clinton that it was the view of the Senate that the United States should not sign any international agreement on climate change that either did not mandate all countries to limit emissions or which would otherwise result in serious harm to the U.S. economy.

Nevertheless, Vice President Al Gore signed an agreement a few months later that did not meet the Senate’s test. Knowing how the Senate would vote, President Clinton never even bothered to submit this Kyoto agreement to the U.S. Senate. It would have been dead on arrival and President Clinton wasn’t interested in political embarrassment.

Twelve years later the world has moved from Kyoto to Copenhagen but the same dynamics apply. Instead of having taken a formal vote, the U.S. Senate has stalled in its effort to adopt binding cap and trade carbon emission reductions along the lines that President Obama, the U.S. House of Representatives, and the delegates in Copenhagen would have the U.S. do. While not the same as a 95-0 vote, the situation in the U.S. Senate conveys the same message: no cap and trade deal is going to get out of the Senate, either as ordinary legislation or as a part of an international agreement that would require the approval of 2/3 of the Senate.

Just like Vice President Al Gore before him, President Obama might sign such an agreement with great fanfare and receive the accolades of fawning delegates from around the world, only to return home and be bitterly reminded that his signature, without the Senate’s approval, is meaningless.

Yet, today, President Obama is asserting that the constitutional principles governing Gore and Clinton in 1997 don’t apply to him in 2009.

How’s that?

It seems that our president, a Harvard law graduate and former constitutional law lecturer at the University of Chicago Law School, has discovered an interpretation of our Constitution that had escaped the notice of two centuries of American citizens and lawyers and judges before him.
President Obama’s apparent view is that the Environmental Protection Agency, one of his executive branch agencies, can claim the regulatory power to impose, on its own authority, a system of taxation akin to what the Congress has so far refused to adopt. And since the executive branch can now implement what the legislative branch has failed to enact, then there is no need to get the Senate’s approval for a Copenhagen agreement.

This is, to say the least, a most curious interpretation of our Constitution. What’s next? Secretary Sebelius deciding that the Senate debate on health care reform has become tiresome, so she claims power for the HHS to reorder the healthcare economy on her own authority?

The unilateral assertion of power by the Executive Branch in advance of the Copenhagen Conference caused at least one U.S. Senator from the president’s own party, Jim Webb of Virginia, to write a fairly pointed letter to the President reminding him of the provisions of the Constitution that apply to the powers of the Legislative Branch:

Dear Mr. President:

I would like to express my concern regarding reports that the Administration may believe it has the unilateral power to commit the government of the United States to certain standards that may be agreed upon at the upcoming United Nations Framework Convention on Climate Change Conference of Parties 15 in Copenhagen, Denmark. The phrase “politically binding” has been used.

Although details have not been made available, recent statements by Special Envoy on Climate Change Todd Stern indicate that negotiators may be intending to commit the United States to a nationwide emission reduction program. As you well know from your time in the Senate, only specific legislation agreed upon in the Congress, or a treaty ratified by the Senate, could actually create such a commitment on behalf of our country.

I would very much appreciate having this matter clarified in advance of the Copenhagen meetings.
Sincerely,
Jim Webb
United States Senator

Webb’s letter to the president is cordial Senate-speak for “Are you kidding me?”

Considering that the president’s February 2009 budget allocated $645 billion for a cap-and-trade system to accomplish its emissions reduction goals, it suggests that the president believes his executive branch has the power to bypass the legislative branch and impose taxes of at least $645 billion on its own authority.

That’s called "taxation without representation" and the last person who imposed such a system on Americans was named King George III. The first hint King George III got that American colonists weren’t quite happy with his program to impose taxes on tea without their consent was that a small band of our forefathers dressed up like Indians and dumped a bunch of the King’s tea into Boston Harbor in 1773. Two years later we were at war with the British tyrant and didn’t stop fighting for seven years until we defeated his armies on the battlefield.

Now the president wants to assert his newly claimed power to taxation without representation in Copenhagen to make a climate deal with the mostly undemocratic regimes that the United Nations typically brings together.

Who does President Obama think we are? Citizens or subjects?

Vince Haley is vice president for policy at American Solutions for Winning the Future.