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| <title> - EXECUTIVE OVERREACH IN FOREIGN AFFAIRS</title> | |
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| [House Hearing, 114 Congress] | |
| [From the U.S. Government Publishing Office] | |
| EXECUTIVE OVERREACH IN FOREIGN AFFAIRS | |
| ======================================================================= | |
| HEARING | |
| BEFORE THE | |
| EXECUTIVE OVERREACH TASK FORCE | |
| OF THE | |
| COMMITTEE ON THE JUDICIARY | |
| HOUSE OF REPRESENTATIVES | |
| ONE HUNDRED FOURTEENTH CONGRESS | |
| SECOND SESSION | |
| __________ | |
| MAY 12, 2016 | |
| __________ | |
| Serial No. 114-75 | |
| __________ | |
| Printed for the use of the Committee on the Judiciary | |
| [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] | |
| Available via the World Wide Web: http://judiciary.house.gov | |
| ___________ | |
| U.S. GOVERNMENT PUBLISHING OFFICE | |
| 20-106 PDF WASHINGTON : 2016 | |
| _________________________________________________________________________________________ | |
| For sale by the Superintendent of Documents, U.S. Government Publishing Office, | |
| http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, | |
| U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). | |
| E-mail, <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="b9dec9d6f9dacccacdd1dcd5c997dad6d4">[email protected]</a>. | |
| COMMITTEE ON THE JUDICIARY | |
| BOB GOODLATTE, Virginia, Chairman | |
| F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan | |
| Wisconsin JERROLD NADLER, New York | |
| LAMAR S. SMITH, Texas ZOE LOFGREN, California | |
| STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas | |
| DARRELL E. ISSA, California STEVE COHEN, Tennessee | |
| J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr., | |
| STEVE KING, Iowa Georgia | |
| TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico | |
| LOUIE GOHMERT, Texas JUDY CHU, California | |
| JIM JORDAN, Ohio TED DEUTCH, Florida | |
| TED POE, Texas LUIS V. GUTIERREZ, Illinois | |
| JASON CHAFFETZ, Utah KAREN BASS, California | |
| TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana | |
| TREY GOWDY, South Carolina SUZAN DelBENE, Washington | |
| RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York | |
| BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island | |
| DOUG COLLINS, Georgia SCOTT PETERS, California | |
| RON DeSANTIS, Florida | |
| MIMI WALTERS, California | |
| KEN BUCK, Colorado | |
| JOHN RATCLIFFE, Texas | |
| DAVE TROTT, Michigan | |
| MIKE BISHOP, Michigan | |
| Shelley Husband, Chief of Staff & General Counsel | |
| Perry Apelbaum, Minority Staff Director & Chief Counsel | |
| ------ | |
| Executive Overreach Task Force | |
| STEVE KING, Iowa, Chairman | |
| F. JAMES SENSENBRENNER, Jr., STEVE COHEN, Tennessee | |
| Wisconsin JERROLD NADLER, New York | |
| DARRELL E. ISSA, California ZOE LOFGREN, California | |
| LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas | |
| JIM JORDAN, Ohio HENRY C. ``HANK'' JOHNSON, Jr., | |
| TED POE, Texas Georgia | |
| JASON CHAFFETZ, Utah JUDY CHU, California | |
| TREY GOWDY, South Carolina TED DEUTCH, Florida | |
| RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana | |
| RON DeSANTIS, Florida SCOTT PETERS, California | |
| KEN BUCK, Colorado | |
| MIKE BISHOP, Michigan | |
| Paul B. Taylor, Chief Counsel | |
| James J. Park, Minority Counsel | |
| C O N T E N T S | |
| ---------- | |
| MAY 12, 2016 | |
| Page | |
| OPENING STATEMENTS | |
| The Honorable Steve King, a Representative in Congress from the | |
| State of Iowa, and Chairman, Executive Overreach Task Force.... 1 | |
| The Honorable Steve Cohen, a Representative in Congress from the | |
| State of Tennessee, and Ranking Member, Executive Overreach | |
| Task Force..................................................... 10 | |
| The Honorable Bob Goodlatte, a Representative in Congress from | |
| the State of Virginia, and Chairman, Committee on the Judiciary 11 | |
| The Honorable John Conyers, Jr., a Representative in Congress | |
| from the State of Michigan, and Ranking Member, Committee on | |
| the Judiciary.................................................. 13 | |
| WITNESSES | |
| Eugene Kontorovich, Professor of Law, Northwestern University | |
| School of Law | |
| Oral Testimony................................................. 14 | |
| Prepared Statement............................................. 17 | |
| Stephen I. Vladeck, Professor of Law, American University | |
| Washington College of Law | |
| Oral Testimony................................................. 33 | |
| Prepared Statement............................................. 35 | |
| Steven Groves, Leader of the Heritage Foundation's Freedom | |
| Project | |
| Oral Testimony................................................. 43 | |
| Prepared Statement............................................. 45 | |
| LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING | |
| Prepared statement of the Honorable Steve Cohen, a Representative | |
| in Congress from the State of Tennessee, and Ranking Member, | |
| Executive Overreach Task Force................................. 4 | |
| APPENDIX | |
| Material Submitted for the Hearing Record | |
| Prepared statement of the Honorable Sheila Jackson Lee, a | |
| Representative in Congress from the State of Texas, and Member, | |
| Executive Overreach Task Force................................. 71 | |
| EXECUTIVE OVERREACH | |
| IN FOREIGN AFFAIRS | |
| ---------- | |
| THURSDAY, MAY 12, 2016 | |
| House of Representatives | |
| Executive Overreach Task Force | |
| Committee on the Judiciary | |
| Washington, DC. | |
| The Task Force met, pursuant to call, at 10:11 a.m., in | |
| room 2141, Rayburn House Office Building, the Honorable Steve | |
| King (Chairman of the Task Force) presiding. | |
| Present: Representatives King, Goodlatte, Issa, Gohmert, | |
| Jordan, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen, | |
| Conyers, Jackson Lee, and Johnson. | |
| Staff Present: (Majority) Paul Taylor, Chief Counsel; | |
| Zachary Somers, Parliamentarian & General Counsel, Committee on | |
| the Judiciary; Tricia White, Clerk; (Minority) James J. Park, | |
| Minority Counsel; and Veronica Eligan, Professional Staff | |
| Member. | |
| Mr. King. The Executive Overreach Task Force will come to | |
| order. And, without objection, the Chair is authorized to | |
| declare a recess of the Task Force at any time. I'll recognize | |
| myself for opening statement. | |
| Today's hearing will focus on executive overreach in | |
| foreign affairs. The Constitution grants the President as | |
| Commander in Chief clear powers in foreign affairs. However, | |
| the Constitution also provides for a check on those powers by, | |
| for example, requiring that the Senate approval international | |
| treaties and that Congress appropriate all funds needed to | |
| foreign military engagements. | |
| I'll focus my remarks today on two troubling developments | |
| as it relates to those checks the Constitution grants to the | |
| Congress and not the President. Regarding the Senate's treaty | |
| ratification powers in Paris late last year, the Obama | |
| administration also took part in the 21st Conference of Parties | |
| to the United Nations Framework Convention on Climate Change. | |
| Senior Administration officials, including Secretary of | |
| State John Kerry, Environmental Protection Agency Administrator | |
| Gina McCarthy, and Secretary of Energy Ernest Moniz--who | |
| visited Ames, Iowa, just this past week, and I thank him for | |
| that--negotiated the final terms of a new climate change pact, | |
| the so-called Paris Agreement. The agreement involves the | |
| commitments that will affect every part of the U.S. And the | |
| Obama administration intends to meet those commitments by | |
| requiring changes to State law. These Paris Agreement criteria | |
| and others listed by the State Department itself in what's | |
| called the Circular 175 procedure show clearly that the Paris | |
| Agreement is a treaty that requires the approval the Senate, | |
| under Article II, Section 2, Clause 2, of the Constitution, | |
| which provides 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. | |
| Despite this, President Obama has made clear through his | |
| spokesperson that he has no intention of consulting or | |
| including either the Senate or anyone in Congress in any aspect | |
| of the international treaty. On March 31, 2015, White House | |
| spokesman Josh Earnest was asked at a press conference briefing | |
| whether Congress has the right to approve the Paris Agreement. | |
| Mr. Earnest responded, speaking for the President, as follows, | |
| ''I think it's hard to take seriously from some Members of | |
| Congress who deny the fact that climate change exists that they | |
| should have some opportunity to render judgment about a climate | |
| change agreement.'' | |
| Well, think of that for a moment. The chief spokesperson | |
| said that, simply because Members of Congress disagree with the | |
| President's environmental policies, the constitutional | |
| requirement that a treaty be submitted to the Senate for | |
| approval is negated. That's outrageous, and it's unlawful. And | |
| it's a clear example of the executive overreach in the area of | |
| foreign affairs. | |
| Regarding the President's powers in war, the President does | |
| have much greater constitutional authority in the areas of | |
| military affairs than he does in domestic affairs. Yet, even in | |
| the case of war, the President's powers are not unlimited. One | |
| clear limitation on that power is Congress' constitutional | |
| authority to appropriate all Federal funds for use on anything, | |
| including war. Yet President Obama has evaded Congress' control | |
| over military appropriations, as many Presidents have, by using | |
| accounting gimmicks to move funds Congress approved for one | |
| purpose to another, as was done to pay for the U.S. | |
| intervention in Libya. | |
| Today, Congress' power of the purse is weakened because the | |
| President has many ways to evade Congress' control over | |
| military appropriations, namely accounting procedures to move | |
| funds Congress approved for one purpose to another purpose | |
| Congress has not approved. | |
| In the case of the intervention in Libya, President Obama | |
| paid for that conflict entirely out of funds reallocated from | |
| other Defense Department accounts. Harold Koh, President | |
| Obama's own former legal adviser to the Department of State, | |
| has also written that the President has developed over time a | |
| whole range of devices to exploit spending loopholes in the | |
| appropriation process. When Congress grants the President | |
| statutory drawdown authority, he may withdraw certain funds | |
| simply by determining that such withdrawals are vital to the | |
| security of the United States. Similar statutory provisions | |
| allow the President access to special and contingency funds | |
| based upon nebulous findings that the use of those funds is | |
| important to the security of the United States or to the | |
| national interest. | |
| When given statutory transfer and reprogramming authority, | |
| the President has transferred--the President transfers to one | |
| appropriations account funds initially appropriated for another | |
| or may reprogram appropriated funds within a single | |
| appropriation account, often without specific statutory | |
| authority. This is yet another example of executive overreach, | |
| albeit it one that Congress has been complicit to some extent. | |
| Nevertheless, it is an issue that this Task Force should | |
| consider. | |
| And I also am thinking about the Iranian treaty agreement, | |
| and I expect there will be some remarks with regard to that a | |
| little bit later today. And I would point out that Congress has | |
| controlled funds with regard to war and done so effectively. | |
| And if one would read back through the appropriations debate | |
| and language that shut off all funds to support the Vietnam | |
| war: In the land of Vietnam and the seas adjacent to it, the | |
| skies over it, or the countries adjacent to it, or the skies | |
| over them, no funds would be used to conduct the Vietnam war. | |
| And it effectively, I'll say, de facto took ammunition off the | |
| docks at Da Nang by an act of Congress by using the | |
| appropriations language to shut down a war. So that's an | |
| example of how a President did honor the wishes of Congress, | |
| and we're going to want to talk today about that, but in the | |
| meantime, I look forward to hearing from all of our witnesses | |
| here today on these and many other issues. | |
| And I would recognize the Ranking Member, Mr. Cohen from | |
| Tennessee, for his opening statement. | |
| Mr. Cohen. Thank you, Mr. Chair. I would first like to | |
| submit for the record my prepared marks, which I will not refer | |
| to in my remarks, for entry into the record. | |
| Mr. King. Without objection so ordered. | |
| [The prepared statement of Mr. Cohen follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Cohen. Thank you. I was a little bit late today, for I | |
| was at the Trumpo show. And there was a gigantic crowd of | |
| reporters and television and protesters over at the | |
| Republican--wherever you all meet, at one of those places. I | |
| saw Vice President Issa over there. And he was walking down the | |
| street looking very Vice Presidential. He was ready at any | |
| minute to step in. | |
| Mr. Issa. Oh, no. You were the one in the Cadillac driving | |
| by. | |
| Mr. Cohen. I thought it was Scherzer. There were so many | |
| people; I thought it was something to do with Scherzer. I mean, | |
| he had 20 strikeouts, but I found out it was Trump. Scherzer, | |
| yeah, unbelievable last night. But you think you have a problem | |
| with executive overreach now; if he becomes President, you have | |
| combover, overreach. You have got all kinds of overs and no | |
| unders. | |
| Mr. Issa. Does the gentleman pretend to know something | |
| about hair? Is there a level of expertise being asserted here | |
| in Halls of Congress? | |
| Mr. Cohen. I have to admit I have hair envy. There's no | |
| question about it. | |
| But if you think you've got problems with President Obama, | |
| if there's a President Trump, Congress will hardly exist | |
| because it will be huge and he'll do great things and he won't | |
| need anybody's advice or consent because he does great things | |
| and he has got great people. And, you know, we will truly be | |
| like we are today. Here we are pretending to do government, and | |
| nobody's really here. And everybody's watching the show, and | |
| we're not the show. And it's all going to be a show. | |
| And you think, you know, an executive, a businessman, a | |
| billionaire: he's not going to care about Congress because he | |
| does it all. And if we suggest anything, that's he's | |
| overreaching his power, he'll fire us, so there will be nothing | |
| happening. | |
| But it's a wonderful story that's about to happen on the | |
| Republican side. It will be a story that people will look at | |
| for centuries. And children in Eastern Europe are going to know | |
| they can be born there in Eastern Europe to parents who are | |
| economically deprived, and they can become a model and turn out | |
| to be First Lady of the United States. And it's going to give | |
| children in Eastern Europe something to look forward to, and it | |
| is going to incentivize them and give them hope. And it's going | |
| to be a great day for America. I can see it coming. | |
| But as far as overreach, you're going to have overreach. It | |
| is going to make Obama look like the person that Mr. King would | |
| like to have President, somebody who is just strictly limited | |
| to the confines of Article--is it II? II, yeah--and doesn't do | |
| anything at all that infringes on Article I. So, with that, I-- | |
| -- | |
| Mr. Issa. Will the gentleman yield? | |
| Mr. Cohen. The gentleman will yield to the Vice President. | |
| Mr. Issa. I thank the gentleman, and I will remember that. | |
| Mr. Cohen. Don't tell Mr. Corker I called you Vice | |
| President. | |
| Mr. Issa. The case we're making here today hopefully plays | |
| right into what you just said, that if we anticipate that there | |
| have been or measure that there have before overreaches under | |
| this Administration and anticipate under the next | |
| Administration, then wouldn't the gentleman agree that | |
| legislation that specifically empowers the House to be a more | |
| effective balancing act over executive overreach would be | |
| paramount right now before the great hair revolution begins? | |
| Mr. Cohen. I don't disagree with you. In a lot of ways, as | |
| a lifetime legislator, 24 years in the State and now 10, 9-plus | |
| here, I agree the legislature should have more power. I | |
| disagreed that President Obama has overreached on climate | |
| change, which does exist, and/or on the Iran nuclear agreement, | |
| which keeps us safer from the destruction of the planet and | |
| mankind. And Mr. Bellinger and Mr. Goldsmith, two of the legal | |
| minds in the Bush administration who I have great regard for, | |
| concur on that, that these were authorized and appropriate. But | |
| I do think there are problems that have occurred in other areas | |
| where the executive has gone further than they should in doing | |
| things that were legislative prerogatives. And I think that, if | |
| by some chance Mr. Trump is the President, gone, it's over. | |
| Mr. Issa. Well, I look forward to working with the | |
| gentleman to pass that legislation under the current | |
| Administration so that all future Congresses will enjoy that | |
| protection against overreach that the gentleman agrees can | |
| occur and has occurred and that this special working group is | |
| all about. | |
| Mr. Cohen. Would this be kind of like passing a bill that | |
| is like putting an alarm on the government that will go off and | |
| let us know when somebody is trying to break the rules, and an | |
| alarm goes off and warns us? | |
| Mr. Issa. I hope it is both an alarm and an auto shutdown | |
| capability. | |
| Mr. Cohen. Auto shutdown. | |
| Mr. Issa. Thank you. | |
| Mr. Cohen. I yield back. | |
| Mr. King. The gentleman's time has expired. | |
| And the Chair now recognizes the Chairman of the full | |
| Committee, Mr. Goodlatte from Virginia, for his opening | |
| statement. | |
| Mr. Goodlatte. Well, thank you, Chairman King, for | |
| convening this third hearing of the Task Force on Executive | |
| Overreach. And I've been very interested to hear the dialogue | |
| I've just heard and especially the comments of the Ranking | |
| Member, because I look forward to the transition that will take | |
| place when we have a bipartisan effort to halt executive | |
| overreach, because it occurs in every Administration of both | |
| parties. It's occurring right now. And the point isn't whether | |
| you believe in a particular point of view about climate change | |
| or whether you believe in the necessity of doing something | |
| about nuclear weapons in Iran, we all agree on the need to do | |
| some things, not necessarily do the same things. The question | |
| is, under the United States Constitution, who has the authority | |
| to do it? And there we have a serious difference of opinion. | |
| I have to tell you: one of the lowest days in the time that | |
| I have served in Congress was the day that President Obama came | |
| to the House to give his State of the Union address before a | |
| Joint Session of the Congress, and at the end of his long | |
| laundry list of things that he wanted Congress to do, that | |
| every President has of either party--they always have a list of | |
| things they want done--at the end of his, he said, ``And if you | |
| don't do it, I will.'' By what authority under the United | |
| States Constitution? And the really--the reason why it was such | |
| a low day for me was that so many Members of your party stood | |
| up and gave a standing ovation to the President when he said: | |
| I'm going to take your power, the people's power in the elected | |
| Representatives of the Congress, and I'm going to use them for | |
| other purposes. | |
| Mr. Chairman, could I have order? | |
| Mr. King. Yes, the Committee will come to order. | |
| And I recognize again the gentleman from Virginia. | |
| Mr. Goodlatte. Thank you, Mr. Chairman. I will focus my | |
| remarks on the recent deal the President struck with Iran on | |
| its nuclear capability, a deal that primarily meets Iran's | |
| goals in that sanctions are lifted, nuclear research and | |
| development continues, and America's safety is compromised, but | |
| doesn't include any requirements for inspections that can | |
| verify compliance anytime and anywhere. Amazingly, among the | |
| deal's many flaws is an end to a ban prohibiting Iranians from | |
| many coming to the U.S. to study nuclear science and nuclear | |
| engineering at American universities. Knowledge obtained in the | |
| programs is instrumental in being able to design and build | |
| nuclear bombs. | |
| President Obama made these gutting concessions even as a | |
| senior State Department official testified before Congress that | |
| deception is part of Iran's DNA. And Iran's actions continue to | |
| prove that it can't be trusted. | |
| With that background in mind, President Obama's agreement | |
| with Iran is being unlawfully implemented because the | |
| Administration failed to provide Congress with the documents | |
| required under the Iran nuclear agreement Review Act of 2015. | |
| Under that act, the agreement materials required to be | |
| submitted by the President to Congress ``include any additional | |
| materials related thereto, including annexes, appendices, | |
| codicils, side agreements, implementing materials, documents | |
| and guidance, technical or other understandings, and any | |
| related agreements, whether entered into or implemented prior | |
| to the agreement or to be entered into or implemented in the | |
| future.'' Because the President has not transmitted to Congress | |
| various side deals related to the agreement, including side | |
| deals between the International Atomic Energy Agency and Iran, | |
| he can't have Congress' approval of the agreement as required | |
| by the Iran nuclear agreement Review Act, yet the President | |
| pushes on, unlawfully, with his doomed agreement that can't | |
| protect Americans from a nuclear Iran. | |
| President Obama is, unfortunately, no stranger to bad | |
| deals. Two years ago, this Administration negotiated with the | |
| Taliban for release of Sergeant Bowe Bergdahl, a deserter who | |
| awaits court-marshal. Despite having a policy of not | |
| negotiating with terrorists, the Administration irresponsibly | |
| exchanged Sergeant Bowe Bergdahl for five Taliban terrorists | |
| detained at Guantanamo Bay. By doing so, the Administration has | |
| emboldened all terrorist organizations and has created the risk | |
| that five terrorists will reenter the field of battle. | |
| Making matters even worse, the President, again, violated | |
| Federal law in the process, namely the Federal law requiring 30 | |
| days' notice to Congress before the release of any terrorist | |
| prisoners from Guantanamo Bay. The nonpartisan Government | |
| Accountability Office concluded that was a violation of a | |
| ``clear and unambiguous law.'' The GAO has concluded the | |
| President's actions constituted a violation of the | |
| Antideficiency Act, which prohibits Federal agencies from | |
| spending funds in excess of or in advance of amounts that are | |
| legally available. | |
| The Constitution does not and cannot require that | |
| Presidents make sound decisions in office, but it does require | |
| that Presidents obey the law. The President is sworn to do as | |
| much as are we as Members of Congress. | |
| I look forward to hearing from today's witnesses. | |
| Mr. King. I thank you, Mr. Chairman. | |
| And the Chair would now recognize the Ranking Member of the | |
| full Committee, Mr. Conyers, from the rebuilding city of | |
| Detroit. | |
| Mr. Conyers. Thank you, Mr. Chairman. | |
| I welcome the witnesses. | |
| And to my colleagues, the issue of appropriate roles of the | |
| Congress and the President is a subject worthy of a genuinely | |
| substantive discussion. And I think it's a very important | |
| discussion that's involved in the hearing today. For instance, | |
| we could consider whether our Nation's current military | |
| operations against the Islamic State of Iraq and Syria have | |
| been properly authorized by Congress. I won't go into detail, | |
| but I'm involved in research on that subject at the present | |
| moment. | |
| Unfortunately, today's hearings may be turning into an | |
| attack against the current Administration. Let's start off with | |
| this proposition: neither the Iran nuclear agreement nor the | |
| Paris climate change agreement is a treaty within the meaning | |
| of the Constitution's Treaty Clause that requires Senate | |
| consent. | |
| The Paris climate change agreement, for example, contains | |
| no mandatory quantitative emission standards or reductions. | |
| Rather, it is a strong exhortation that parties take concrete, | |
| transparent, but ultimately self-directed steps to reduce | |
| greenhouse gas emissions. Contrary to the assertions of some, | |
| this agreement does not contain legally binding requirements, | |
| nor does it purport to grant new authority to the President to | |
| meet any such requirements. | |
| In short, it doesn't meet the traditional criteria of a | |
| treaty within the meaning of the Treaty Clause. And the Iran | |
| agreement was a set of political commitments rather than | |
| legally binding requirements. Thus, it also was not | |
| constitutionally required to be subject to Senate approval. | |
| In addition, both agreements are consistent with existing | |
| law of the United States of America. For instance, the statutes | |
| imposing sanctions on Iran for its nuclear weapons program also | |
| give the President the discretion to remove these sanctions | |
| should certain criteria be met. And the Paris climate agreement | |
| was reached pursuant to a 1992 climate change treaty that the | |
| Senate had already ratified. In other words, the Paris | |
| Agreement is consistent with the obligations created by a | |
| treaty that, under the Supremacy Clause, was already the law of | |
| the land. | |
| Now, as professor Vladeck correctly notes, arguments | |
| questioning the legality of these agreements are part of an | |
| ongoing attempt to paint policy disputes as constitutional | |
| matters. Whatever one thinks about the merits of either the | |
| Iran nuclear agreement or the Paris climate agreement, the | |
| Constitution and the historical practice make clear that the | |
| President was within his authority to enter into them. At any | |
| rate, Congress has already had the opportunity to make its | |
| voice heard. | |
| With respect to the Iran nuclear agreement, Congress had | |
| the chance to disapprove the agreement, but opponents of the | |
| agreement failed to obtain the necessary votes to prevent the | |
| agreement from taking effect. And as I noted and conclude, the | |
| Senate long ago ratified the climate change treaty pursuant to | |
| which the Paris Agreement was entered. So rather than sparking | |
| enlightened discussion, today's hearing I fear may be a string | |
| of partisan exercises by the Task Force, but I think it's | |
| important that we move on, and I thank our witnesses for | |
| appearing today. I look forward to hearing their testimony, and | |
| I thank the Chair. | |
| Mr. King. I thank the gentleman from Michigan for his | |
| opening statement. And I'll now introduce the witnesses. Our | |
| first witness is Eugene Kontorovich, professor of law at | |
| Northwestern Law School. | |
| Our second witness, welcoming him back again, is Stephen | |
| Vladeck, professor of law at American University and Washington | |
| College of Law. | |
| Our third witness is Steven Groves, leader of the Heritage | |
| Foundation's Freedom Project. | |
| We welcome you all here today and welcome your testimony. | |
| Each of the witnesses' written statements will be entered | |
| into the record in its entirety. I ask that each witness | |
| summarize his or her testimony in 5 minutes or less. To help | |
| you stay within that time, there is a timing light in front of | |
| you, and that light switches from green to yellow, indicating | |
| you have 1 minute to conclude your testimony. When the light | |
| turns red, it indicates it is time to wrap it up. | |
| Before I recognize the witnesses, it is the tradition of | |
| the Task Force that they be sworn in. | |
| So, to the witnesses, please stand and raise your right | |
| hand. Do you solemnly swear that the testimony that you are | |
| about to give will be the truth, the whole truth, and nothing | |
| but the truth so help you God? | |
| Thank you. You may be seated. | |
| Let the record reflect that the witnesses answered in the | |
| affirmative. | |
| I now recognize our first witness, Mr. Kontorovich. Please | |
| turn on your microphone before speaking, and you're recognized | |
| for 5 minutes, Mr. Kontorovich. Thank you. | |
| TESTIMONY OF EUGENE KONTOROVICH, PROFESSOR OF LAW, NORTHWESTERN | |
| UNIVERSITY SCHOOL OF LAW | |
| Mr. Kontorovich. Thank you, Chairman King, Ranking Member | |
| Cohen, Ranking Member of the Committee Conyers and honorable | |
| Members of Committee. It is a great pleasure to be here today | |
| to discuss these matters with you. | |
| I'll state one thing for the record: I have the pleasure to | |
| say we are now the Northwestern Pritzker School of Law. And our | |
| generous donor would be happy to hear me say that, I hope. So | |
| the executive, nobody would dispute, has vast discretion in | |
| foreign affairs, discretion imparted both by the Constitution, | |
| which gives the executive a primary role in the conduct of | |
| foreign affairs because of the greater capacity of a single | |
| individual to enter into negotiations and conduct dealings with | |
| foreign countries and also because Congress on top of that | |
| already broad discretion, has given the executive vast leeway | |
| through statutes that allow for waivers and many other | |
| delegations of broad authority. | |
| However, Congress also has constitutional powers, core | |
| Article I powers, including the foreign commerce power, | |
| spending power, which can greatly affect foreign affairs. And | |
| when these powers are exercised in the realm of foreign | |
| affairs, they are no less valid and no less plenipotentiary | |
| because they involve diplomacy or matters involving other | |
| countries. | |
| Now, indeed, because the executive's powers in foreign | |
| affairs are so broad, it is hard for the executive to | |
| overreach. It's hard. But that makes it all the more amazing | |
| and all the more worrisome when the executive does indeed | |
| overreach. Because when one has vast power, claiming even more | |
| is even more problematic. | |
| I'm going to briefly mention two examples, two recent | |
| examples, of what I see as such overreach, involving two core | |
| Article I powers of Congress: the foreign commerce power, | |
| involving the Iran Sanctions Act, and the spending power, | |
| involving funding to certain United Nations agencies. | |
| As Chairman Goodlatte mentioned, the Iran Sanctions Review | |
| Act requires that the President transmit, as a condition for | |
| the sanctions relief that the act enables, that the President | |
| transmit the entire agreement. The language of this provision | |
| in the Iran Review Act is extraordinarily vast, and it looks | |
| like it was written by teams of redundant lawyers. And it bears | |
| quoting again: ``these agreements include appendices, annexes, | |
| codicils, side agreements, implementing materials, | |
| documents''--that's one broad category; the question is, is | |
| this a ``document?''--``guidance, technical or other | |
| understandings,'' and lots of other stuff. | |
| The question is, are the relevant materials involving | |
| arrangements between the International Atomic Energy Agency and | |
| Iran, for inspection and review of their nuclear program, is | |
| that a document, material, codicil, and so forth, under the | |
| deal? And it seems quite clear that it is. It's actually | |
| mentioned and incorporated by reference in the Joint | |
| Comprehensive Plan of Action itself, and as such, it must be | |
| transmitted to Congress for the review period under the act to | |
| begin. | |
| If that review period does not begin, sanctions cannot be | |
| lifted. It is true, as Ranking Member Conyers pointed out, that | |
| prior statutory sanctions had waiver provisions. But just as | |
| Congress can allow the President to waive, it can cabin and | |
| take back that waiver authority, which is exactly what happened | |
| in the Iran Nuclear Sanctions Review Act. As a result, the | |
| current lifting of some sanctions is legally problematic, and | |
| even more troubling is the executive's apparent desire to | |
| leverage this to now intimidate states into abandoning their | |
| lawful sanctions, which, again, the Iran Nuclear Review Act | |
| would prohibit. | |
| Now, a separate law involves Congress' exercise of its | |
| spending power. Congress can, through the power of the purse, | |
| deal with any subject involving diplomacy, involving war, as | |
| the Chairman mentioned. And Congress provided that when U.N. | |
| agencies try to take sides in the Middle East conflict and | |
| improperly admit the Palestinian Authority as a member state, | |
| despite it not meeting the international criteria for | |
| statehood, those agencies can't be funded by the U.S. taxpayer. | |
| That law is quite clear, and it applies to any U.N.-affiliated | |
| agency. | |
| One such agency, the United Nations Framework Convention on | |
| Climate Control, has accepted the Palestinians as members. The | |
| clear effect must be that they cannot receive taxpayer funding. | |
| The Executive seems to take the position that he will | |
| nonetheless send a check to this agency on the theory that the | |
| framework convention is a treaty. It's true it is a treaty, but | |
| it is also an agency created by that treaty. I think the best | |
| proof of that is that a treaty can't deposit a check. Only a | |
| U.N. agency can deposit a check. I presume the money from the | |
| Treasury isn't being sent to the treaty. It is being sent to | |
| the U.N. agency, and that's exactly what the law prohibits. | |
| Thank you. And I would refer the Committee to my written | |
| testimony for further elaboration. | |
| [The prepared statement of Mr. Kontorovich follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. King. Thank you, Mr. Kontorovich. | |
| Now I recognize the gentleman Mr. Vladeck for his | |
| testimony. | |
| TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN | |
| UNIVERSITY WASHINGTON COLLEGE OF LAW | |
| Mr. Vladeck. Great. Thank you, Chairman King, Ranking | |
| Member Cohen, distinguished Members of the Task Force. It's an | |
| honor and a privilege to be testifying before you again. | |
| I do fear that it has become an all too common refrain in | |
| contemporary American discourse for those who object to the | |
| wisdom of particular policy outcomes to disguise that objection | |
| behind claims of legitimacy; that is that the relevant | |
| government actor lacks the authority to effect the disputed | |
| policy outcome, never mind its wisdom or potentially its lack | |
| thereof. For example, when the Supreme Court interprets the | |
| Constitution in a manner some of us don't like, critics often | |
| object to the Court's power to even reach the contested | |
| interpretation in the first place rather than the merits of the | |
| interpretation. | |
| In a recent essay, my friend and George Washington law | |
| professor Orin Kerr described this phenomenon, which he harshly | |
| criticized, as the politics of delegitimization. It seems to me | |
| that today's hearing is a variation on the same theme, | |
| portraying a range of perfectly legitimate substantive | |
| disagreements over various of the Obama administration's | |
| foreign policy initiatives as arrogations of executive power | |
| rather than merely as exercises of executive power with which | |
| many of us simply disagree. | |
| Indeed, of all the areas in which President Obama has been | |
| criticized for overreaching, foreign affairs may be the context | |
| in which those claims run the hollowest. Not only does the | |
| Constitution invest the President with a wide range of inherent | |
| and, as the Supreme Court just reminded us in the Zivotofsky | |
| case, preclusive constitutional authority in the field of | |
| foreign affairs, but Congress has historically acquiesced by | |
| broadly delegating much of its own authority in this field to | |
| the President. Nor does the President overreach simply by | |
| entering into diplomatic accords without formally submitting | |
| the agreement to Congress. All three branches of the Federal | |
| Government have recognized, and shortly after the founding, | |
| that the President has the constitutional power to enter into | |
| bi- or multilateral agreements that are not treaties for | |
| constitutional purposes. Indeed, as the Congressional Research | |
| Service explained in a March 2015 report, these agreements, | |
| rather than treaties, have become the constitutional norm. | |
| With regard to the third category of these agreements, so- | |
| called sole executive agreements, as the Supreme Court | |
| explained in 2003, our cases have recognized that the President | |
| has the authority to make executive agreements with other | |
| countries requiring no ratification by the Senate or approval | |
| by Congress. This power hasn't been exercised since the early | |
| years of the Republic. Indeed, although the extent of the | |
| President's authority to conclude executive agreements is | |
| uncertain, as one recent study concluded, the courts have never | |
| struck down a Presidential executive agreement as being | |
| unconstitutional. Instead, the contemporary debate is not over | |
| the abstract validity of sole executive agreements but rather | |
| the specific criteria that separate agreements that ought--that | |
| separate--pardon me, agreements that ought not to be required | |
| in congressional involvement from those that should. To be | |
| frank, there are no bright lines, but by far, the two most | |
| important criteria for assessing whether the President should | |
| submit an international agreement to Congress are whether the | |
| agreement is inconsistent with and could not be implemented on | |
| the basis of existing U.S. law and whether the agreement | |
| establishes binding legal rules or financial commitments with | |
| which the United States comply. Unless the answer to both | |
| questions is yes, history, practice, and precedent all suggest | |
| that the President is acting within his constitutional | |
| authority when he enters into such a sole executive agreement. | |
| As my written testimony explains in more detail, I'm hard | |
| pressed, in light of these criteria, to see the argument that | |
| my colleagues make that President Obama was constitutionally | |
| required to submit to Congress either the full Iran deal or the | |
| Paris climate agreement for many of the reasons echoed by Jack | |
| Goldsmith and John Bellinger. Obviously, I would be happy to | |
| say more about both of these lines of analysis during the Q&A. | |
| But apart from the merits of these debates, it seems to me that | |
| the more important point is the extent to which efforts to | |
| portray the foreign policy of the Obama administration, as | |
| reflected in executive overreach, are another example of the | |
| phenomenon described by Professor Kerr. | |
| Of course, this Task Force, this Committee, and this | |
| Congress may think there is more political and rhetorical gain | |
| to be had from casting these debates on legitimacy returns. But | |
| I fear that such an approach has deleterious long-term | |
| consequences for Congress' institutional role in the formation | |
| and supervision of U.S. foreign policy. After all, the more | |
| Congress focuses its critiques on ill-conceived legitimacy | |
| objections, the more it suggests, however implicitly, that all | |
| it is capable of in the field of foreign affairs is to offer | |
| such authority-driven objections to these policies as opposed | |
| to either enacting legislation that more aggressively seeks to | |
| assert Congress' own foreign policy prerogatives or taking a | |
| more active role in stimulating and raising the national level | |
| of discourse over the normative desirability of these measures. | |
| To me, Congress should be more careful going forward to seize | |
| these imperatives in the foreign policy arena. | |
| But as Professor Goldsmith has concluded: ``I doubt | |
| Congress will be more careful in the future since it typically | |
| doesn't like and cannot organize itself to exercise the | |
| responsibility of an equal constitutional partner in the | |
| conduct of U.S. foreign relations.'' | |
| Studying the origins and trouble and persistence of that | |
| institutional shortcoming is, in my view, far more worthy of | |
| this Task Force's time than trumped-up charges of executive | |
| overreach that once subjected to meaningful scrutiny smack of | |
| nothing more than the politics of delegitimatization. | |
| Thank you again for the opportunity to testify before the | |
| Task Force this morning, and I look forward to your questions. | |
| [The prepared statement of Mr. Vladeck follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. King. Thank you, Mr. Vladeck. | |
| The Chair would now recognize Mr. Groves for his testimony. | |
| TESTIMONY OF STEVEN GROVES, LEADER OF | |
| THE HERITAGE FOUNDATION'S FREEDOM PROJECT | |
| Mr. Groves. Thank you, Mr. Chairman, for inviting me to | |
| testify today about executive overreach in foreign affairs. | |
| The debate over the proper scope of executive power in | |
| foreign affairs has been going on for more than 200 years. It | |
| arose during the 1793 George Washington Presidency when he | |
| declared that the U.S. would be neutral in a war between France | |
| and Great Britain. The Monroe Doctrine, FDR's Destroyers for | |
| Bases Agreement, and the Algiers Accords are just a few | |
| historical examples where significant questions have arisen | |
| regarding executive authority in the conduct of foreign | |
| affairs. And here we are in 2016 continuing this debate. | |
| In our defense, it's not really our fault. The text of the | |
| Constitution, though fairly specific on the distribution of | |
| power in the domestic sphere, is less helpful in the foreign | |
| affairs arena. The Constitution was written to remedy certain | |
| pre-constitutional disputes. And as a result, we're forced to | |
| strain to find textual guidance to address many of the issues | |
| that arise today, particularly in foreign affairs. | |
| There is, of course, the Commander in Chief Clause, but | |
| most of the executive's foreign affairs powers have developed | |
| through historical practice over the past two centuries. To | |
| make things more difficult, for better or worse, the Federal | |
| courts rarely intervene to clarify the limits of executive | |
| power in foreign affairs because such cases usually present | |
| nonjusticiable political questions that courts are loath to | |
| answer one way or the other. | |
| But, today, I'd like to focus on the President's actions in | |
| the area of treaty making and how, in my view, he has | |
| overreached and even abused his authority. This Task Force has | |
| already heard testimony regarding the President's executive | |
| actions regarding immigration and health care that constitute | |
| overreach. | |
| In the foreign affairs realm, the President does the same | |
| thing but through so-called sole executive agreements, as | |
| mentioned by Professor Vladek. Specifically, the President's | |
| decision to treat the Paris Agreement on climate change as a | |
| sole executive agreement was an overreach and an abuse of his | |
| executive authority. Never before has an international | |
| agreement of such import been treated as a sole executive | |
| agreement, not once in American history. | |
| The President himself stated that the Paris Agreement will | |
| literally save our planet. That's a quote. And yet the | |
| agreement somehow does not rise to the level of a treaty | |
| requiring the advice and consent of the Senate. The President's | |
| actions are an overreach for several reasons, first of which is | |
| that they fly in the face of a commitment made by the executive | |
| branch to the Senate in 1992. Back then, during the | |
| ratification debate on the U.N. Framework Convention on Climate | |
| Change, the Senate was concerned President Bush or a future | |
| President would negotiate follow-on agreements that had | |
| emissions targets and timetables but not submit those follow-on | |
| agreements to the Senate. The Senate, then controlled by | |
| Democrats, required assurances that any such follow-on | |
| agreement containing targets and timetables would be submitted | |
| for approval. President Bush agreed on behalf of the executive | |
| branch, and the commitment was memorialized in the framework | |
| convention documentation during the ratification process. | |
| Now, the next President, to his credit, lived up to that | |
| commitment. When President Clinton negotiated the Kyoto | |
| Protocol in 1997, he treated it as a treaty, something that | |
| would have to go to the Senate for advise and consent. He | |
| didn't attempt to circumnavigate the Senate. He didn't ignore | |
| the 1992 commitment. He didn't simply declare the Kyoto | |
| Protocol was a sole executive agreement that didn't require | |
| Senate approval. He stuck to the commitment because that's what | |
| Presidents should do. | |
| But President Obama is unwilling to live up to those | |
| commitments. And the Paris Agreement certainly contains targets | |
| and timetables, but the President refuses to submit it to the | |
| Senate. That is executive overreach. The President's actions | |
| also ignore the objective criteria used by the State Department | |
| in determining whether an international agreement is a treaty | |
| versus an executive agreement, the so-called Circular 175 | |
| procedure mentioned by Chairman King. As I detail at length in | |
| my written testimony, when the eight factors of the C-175 | |
| procedure are applied, it's clear that the Paris Agreement must | |
| be treated as a treaty. But the President has chosen to ignore | |
| those factors as well as the 1992 commitment to the Senate. | |
| Now, because of this overreach, that will not likely be | |
| remedied in Federal court, it is incumbent upon Congress to | |
| refuse to fund the implementation of the Paris Agreement until | |
| the people, through their elected Representatives, approve it, | |
| and at a minimum, this House should refuse to appropriate U.S. | |
| taxpayer dollars for the so-called Green Climate Fund or any | |
| other financial mechanism associated with the Paris Agreement | |
| or the U.N. Framework Convention. Congress should also continue | |
| to resist and disapprove of all regulations meant to implement | |
| the Paris Agreement such as the Clean Power Plan. | |
| I thank you again for inviting me to testify, and I look | |
| forward to any of the questions that the panel has. | |
| [The prepared statement of Mr. Groves follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. King. Thank you, Mr. Groves. | |
| I'll now recognize myself for 5 minutes. | |
| I would go directly to the way you culminated your | |
| testimony and that would be your recommendation that if | |
| Congress--I'll ask it this way: When there's an executive | |
| overreach in the case of, say, the Paris Agreement, for | |
| example, then it's your advice that Congress should refuse to | |
| fund it and use the power of the purse to restrain an overreach | |
| of the executive branch of government. Would it be your opinion | |
| that Congress do that, whether or not we agree with the policy | |
| that's been negotiated? | |
| Mr. Groves. It should be dealt with, you know, on its own | |
| merits. You know, if for some reason there was a President | |
| Trump or maybe it was President G.W. Bush who negotiated this | |
| Paris Agreement and treated it as a sole executive agreement, I | |
| would still be here testifying against it as a conservative. It | |
| is the principle of the matter that Congress and the Senate is | |
| being bypassed. Then they will come to you and ask for the | |
| appropriations, billions and billions of dollars a year, by the | |
| way, for this Green Climate Fund. So, on the principles of | |
| separation of powers and executive overreach, you should still | |
| defund this until it can be remedied, regardless of whether you | |
| agree or disagree with the President's views on climate change. | |
| Mr. King. If your recommendation is, on the basis of the | |
| principle of the separation of powers and the doctrine that, | |
| even though Congress might agree with the policy, you would say | |
| defund that policy and say to the President: You must come to | |
| us, because that's congressional authority; don't step into our | |
| jurisdiction. | |
| Mr. Groves. Correct. | |
| Mr. King. Mr. Vladeck, would you comment on that? | |
| Mr. Vladeck. Certainly, Mr. Chairman, I would not disagree | |
| that Congress has the power of the purse and that through the | |
| power of the purse Congress has the authority to express its | |
| views on the wisdom or lack thereof of policy initiatives in | |
| the executive branch. I don't think it is--I think Members of | |
| Congress are free to use their votes to disapprove of policies | |
| they don't like through the power of the purse. | |
| The point I would make briefly is I think it is worth | |
| stressing that that is a very different question than whether, | |
| in the absence of a no-funds provision, the executive has | |
| overreached simply by going the executive agreement route over | |
| a treaty. But, certainly, the power of the purse is I think an | |
| obvious and long available option for Congress to assert | |
| itself. | |
| Mr. King. On the matter of principle rather than the matter | |
| of policy, would it be your counsel also that Congress should | |
| defend its authority to use the power of the purse, even if | |
| they agree with the policy, but there has been an overreach? | |
| Mr. Vladeck. I mean, so I guess I would say it is up to the | |
| individual Member to decide which is more important to him or | |
| her, which is to say, is it more important to assert the | |
| institutional prerogative of Congress or to support a policy | |
| choice that you agree with? I think each Member is going to | |
| make that decision for themselves. | |
| Mr. King. So I'd say Mr. Groves said principle; you said | |
| pragmatism. And I'd turn then to Mr. Kontorovich to settle this | |
| dispute. | |
| Mr. Kontorovich. I think principle is the long-term | |
| solution for Congress. | |
| Mr. Vladeck. I'm going to be outvoted a lot today. | |
| Mr. Kontorovich. They are going to be in the same shoes | |
| again. And the important reason to take a stand--in all of | |
| these cases, when you are going to be defunding something, it | |
| is going to hurt. It is going to hurt someone. It is going to | |
| run afore some policy imperatives. But if Congress is unwilling | |
| to use this tool, it really can't expect the President to heed | |
| their wishes. Indeed, as we see with the continued funding of | |
| the United Nations Framework Convention on Climate Control, | |
| sometimes even defunding isn't enough to get something | |
| defunded. Sometimes even a no-funds provision is going to be | |
| ignored. So what I would advise is that Congress needs to keep | |
| in mind that its legislation in the end is going to be | |
| interpreted by the President, usually in a nonjusticiable | |
| context. The President will effectively be interpreting | |
| legislation designed to bind him. And so Congress, if anything, | |
| overdo it in the direction of constraining the President, | |
| because don't worry; the President won't be overconstrained. | |
| The President will loosen whatever shackles are on him until he | |
| has comfortable room to maneuver. | |
| Mr. King. Thank you, Mr. Kontorovich. | |
| Now I'd start back down the line again to Mr. Groves, and | |
| I'd phrase it this way: Even in the face of having a President | |
| who would out of his desire to advance an executive overreach | |
| policy on climate change agreement, like the Paris Agreement, | |
| if you have a President that you know will veto any legislation | |
| that uses the power of the purse to stand on principle--if | |
| Congress stands on principle, as you suggested, how does that | |
| principle stand up against a government that would be shut down | |
| and could not be opened up again without a concession to the | |
| President, given that a supermajority to override a President's | |
| veto would be required? | |
| Mr. Groves. You know, it's a dance that we've seen with | |
| these government shutdowns time and time again. But I would | |
| answer your question by referring to Congressman Cohen's | |
| concern that, in some time in the future, we could be faced | |
| with a President Trump and if Congress is intending on | |
| protecting its congressional prerogatives and its power of the | |
| purse and having principled positions when a government | |
| shutdown is looming, now is the time to assert those, so that | |
| if and when there is a President Trump, you are not accused of | |
| mere partisanship and you stood on principles that came out | |
| during this Task Force and these hearings. | |
| Mr. King. Thank you, Mr. Groves. | |
| And I would say also that in this essentially a stare down | |
| between the Congress and the President, as the case may be, and | |
| you're faced with a government shutdown, the side that prevails | |
| will be the side that doesn't blink. And so if the public is | |
| very strongly behind the Congress itself and insists that we | |
| defend those constitutional principles that you've articulated, | |
| then it could be a different result in that kind of a showdown. | |
| And I think that is what's been the result of the shutdown we | |
| had in the past; I think it was a foregone conclusion that the | |
| President would not blink, and it was a foregone conclusion | |
| that Congress would. So I have just said: Find me 217 others | |
| who will that sign a blood oath that they will blink after I | |
| do. | |
| Thank you. And I yield to the Ranking Member of the Task | |
| Force from Tennessee. | |
| Mr. Cohen. Thank you, Mr. Chair. | |
| President Trump would wink and not blink. | |
| Mr. Kontorovich, I really enjoyed your presentation. The | |
| substance was good, but the delivery, the accent, and the style | |
| reminded me of my dear late friend Christopher Hitchens. He | |
| would not have a yarmulke on, although he did have some Jewish | |
| heritage, but he didn't necessarily believe in all of that | |
| stuff. But you sound like Christopher Hitchens. | |
| Tell me how would you frame a statute that you think would | |
| solve the problem that you think exists? Because we've already | |
| got a Constitution that says X, Y, Z, and we have got Supreme | |
| Court opinions. So what's a statute going to do? | |
| Mr. Kontorovich. So to speak generally across the different | |
| contexts we have considered, a statute would have fewer wiggle | |
| words, be more direct, and go in the direction of overbreadth. | |
| Congress, when it's legislating in the area of foreign affairs, | |
| is very conscious, self-consciously avoiding restraining the | |
| executive in ways which will be awkward for him or which will | |
| impair our diplomacy. And that is a salutary desire, except one | |
| has to remember that whatever Congress does, the executive is | |
| also going to interpret it more in line with his foreign policy | |
| objectives. And the executive will have the last word, so I | |
| would use broader, clearer language. For, for example---- | |
| Mr. Cohen. Broader, clearer. Doesn't broader--I thought you | |
| said simple and concise, more or less. | |
| Mr. Kontorovich. Yes, that's exactly right. So, for | |
| example, instead of saying ``U.N.-affiliated agencies,'' I | |
| would say ``U.N. agencies.'' Take out of word ``affiliated.'' | |
| Each word is going to be used by the executive as an excuse for | |
| not implementing the policy of the Congress as legislated. | |
| Fewer waivers would also be desirable, but most | |
| importantly, Congress needs to back its legislation. Because in | |
| the examples I gave, Congress did, in fact, have very broad | |
| language, for example, about the required transmittal of | |
| documents under INARA. Congress has pretty clear defunding | |
| provisions regarding U.N. agencies and the Palestinian | |
| Authority. The question is, is Congress going to get angry | |
| about it when it doesn't happen? The question of funding the | |
| U.N. agencies and whether this is a U.N. affiliate agency or | |
| whether it is a U.N. treaty agency is somewhat reminiscent I | |
| might say, to broaden the partisan context here, of the Boland | |
| amendment and the question of whether the National Security | |
| Council was a U.S. intelligence agency for purposes of laws | |
| restricting funds to the contras. | |
| Now when Congress considered that its directives were | |
| violated by the President, that the President spent money | |
| without their authorization using statutory interpretation, | |
| Congress didn't just say: Well, that's--what are we going to | |
| do. | |
| Mr. Cohen. I can't remember; which President was that? | |
| Mr. Kontorovich. That was Ronald Reagan. | |
| Mr. Cohen. Oh, yeah, yeah, yeah. | |
| Mr. Kontorovich. So I thought you would appreciate the | |
| broadening of the partisan context, sir. But I would remind you | |
| Congress' reaction. Congress didn't say: Well, it's the | |
| President; it's foreign relations. | |
| It was a massive national question. | |
| Mr. Cohen. I don't know how massive it was. Certain people | |
| thought--other people thought Oliver North should have been | |
| given a Congressional Medal of Honor. There was a split of | |
| opinion on the whole deal. | |
| Mr. Kontorovich. The hearings about the funding to the | |
| contras I think were much more extensive than the hearings | |
| about the funding for the United Nations Framework Convention | |
| on Climate Control, though the amount of money in question was | |
| not too different. | |
| Mr. Cohen. Yes, sir. | |
| Mr. Groves, do you have differing opinions on how | |
| legislation would be framed? | |
| Mr. Groves. Well, right now, the C-175 procedure, if | |
| everyone adheres to it, does the job. As I mentioned, during | |
| the Clinton administration, they adhered to it, and they knew | |
| the Kyoto Protocol was a treaty, and that's why they never even | |
| bothered to submit it. | |
| You have to really strike a balance between codifying some | |
| of these procedures to make sure that these things can be | |
| better understood between the two branches in the future and | |
| stepping over the line between where the separation of powers | |
| are between the legislative and executive branch. But I think | |
| there's probably a middle ground where the current state of | |
| affairs with the C-175 factors and how it is decided whether to | |
| negotiate something as a treaty versus an executive agreement | |
| could be codified in a way that brings greater transparency to | |
| the process and we can avoid some of these disputes in the | |
| future, as we've had over---- | |
| Mr. Cohen. Do you really think if we did that, that a | |
| President Trump would give a hoot? | |
| Mr. Groves. I don't know about him. I wasn't on his team. I | |
| think the guy that I was backing would give a hoot. I think | |
| that other well-meaning Democrats in the office would give a | |
| hoot. We have proof of it. President Clinton gave a hoot, and | |
| there were a number of things that he would have loved to have | |
| seen. He signed the Rome Statute on the International Criminal | |
| Court; the Convention on the Rights of the Child, a human | |
| rights treaty; and the Kyoto Protocol. He would have loved to | |
| see those things come into action, but he didn't pretend that | |
| they weren't treaties. He didn't pretend they were sole | |
| executive agreements. He adhered to his obligations. | |
| Mr. Cohen. My time has expired. But I'm just curious who | |
| you supported. | |
| Mr. Groves. I was on Senator Cruz' team. | |
| Mr. Cohen. Lying Ted. As distinguished from short this one | |
| and whatever that one is. | |
| Mr. King. The gentleman's time has expired. | |
| For the record, I know the whole truth to that, and that is | |
| not true. | |
| Mr. Cohen. I was just being facetious with the term. | |
| Mr. King. Generally, I appreciate the gentleman from | |
| Tennessee. | |
| And now I recognize the gentleman from Texas for his | |
| testimony, questioning. | |
| Mr. Gohmert. Thank you. I do appreciate the satire in | |
| satirically violating the rules of decorum of the House. I | |
| always felt it was rather satirical of somebody who had to be | |
| lying to say ``lying Ted'' or ``the most dishonest person he | |
| had ever met'' since he was the most honest man in the race. | |
| But let's go back to this Paris Agreement, and I | |
| appreciate, Mr. Kontorovich, your written testimony. You got | |
| into more detail that the U.N. Framework Convention on Climate | |
| Change accepted the Palestinian Authority as a state party. As | |
| you say, the move is part of the Palestinian effort to be | |
| declared a state. The United States does not recognize the | |
| Palestinian Authority as a state, and U.S. policy has | |
| consistently opposed such moves. Therefore, longstanding U.S. | |
| law requires the defunding of any U.N. organization that grants | |
| Palestinian Authority such status. We also--I haven't read the | |
| Paris Agreement, but my understanding from reading articles | |
| about the Paris Agreement, the original article IX required | |
| developing nations to transfer wealth to underdeveloped | |
| nations, and normally, that would require congressional action | |
| so--and I know there was this great facade over the Iranian | |
| treaty. The Corker bill amended the Constitution with a | |
| legislative act by requiring a treaty to only get one-third of | |
| the vote of the Senate in order to be effectively ratified. I | |
| still think the Constitution is intact in that area. It should | |
| have required two-thirds to ratify what is a treaty, because it | |
| does modify a number of other treaties like with regard to | |
| missiles and proliferation. So, on one hand, I appreciate the | |
| testimony. Clearly, if we're going to be transferring American | |
| wealth, with all due respect to the President's desire to | |
| spread the wealth, that's not something he has authority under | |
| the Constitution to do without congressional concurrence. And | |
| it also does explain why after the Kyoto accords, the | |
| underdeveloped nations were all claiming: If we don't get | |
| America on board, this agreement doesn't work. What they were | |
| saying was: If America doesn't sign on, then the one country | |
| that's going to send us checks is not going to be sending us | |
| checks, which is the whole reason we're part of this; we want | |
| to get checks from the U.S. Congress, from the U.S. Treasury. | |
| And so does anybody see a constitutional way of having the | |
| United States Treasury send money to the benefit of foreign | |
| countries without congressional concurrence in that? Anybody? | |
| Mr. Groves? | |
| Mr. Groves. No, there actually is no way to do that and---- | |
| Mr. Gohmert. Constitutionally. | |
| Mr. Groves. Not constitutionally. | |
| Mr. Gohmert. Yeah. Apparently, it is going on like money | |
| being provided to Iran without congressional consent, but any | |
| other thoughts on that happening? | |
| Mr. Groves. Well, I mean, the House did and the Senate had | |
| an opportunity during the omnibus to put in language strictly-- | |
| specifically preventing the transfer of the $3 billion to the | |
| Green Climate Fund that the President had pledged. | |
| Mr. Gohmert. Was there a need to put that in since they do | |
| not have authority to do that currently? | |
| Mr. Groves. There was a need to put that in if you wanted | |
| to prevent the President from reprogramming other funds from | |
| other climate-related international aid areas into the Green | |
| Climate Fund, which is what he ultimately did in order to come | |
| up with the $3 billion that he had pledged. | |
| Mr. Gohmert. Do you agree that the Senate should have taken | |
| a vote on the Iranian agreement as a treaty and determined | |
| whether or not they get two-thirds to ratify? | |
| Mr. Groves. Well, I would defer to Eugene on the Iran | |
| nuclear deal issues. We had a debate. We have had debates | |
| within our circles about whether the Senate can just decide on | |
| its own that an agreement is a treaty and we are going to take | |
| a vote on it. There's good arguments on both sides of that | |
| issue. I think I agree with you--whether the Senate can do | |
| that, there's good arguments. But I agree with you that the | |
| Corker-Cardin bill was, I think, a wrong-headed way to move | |
| forward because you essentially turned the two-thirds advise- | |
| and-consent vote into the one-third---- | |
| Mr. Gohmert. Well, my time has expired, but I'm astounded | |
| that you think the Senate can call a cow a horse and then it | |
| becomes a horse. But thank you for your testimony. | |
| Mr. King. The gentleman from Texas yields back. | |
| And the Chair will now recognize the Ranking Member of the | |
| full Committee, Mr. Conyers from Michigan. | |
| Mr. Conyers. Thank you, Chairman. | |
| Professor Vladeck, is the Paris climate agreement and the | |
| Iran nuclear deal inconsistent with current American law? | |
| Mr. Vladeck. If they are, I'm not sure what those laws are. | |
| I mean, I've listened to my friends Professor Kontorovich and | |
| Mr. Groves, and, you know, I haven't heard specific American | |
| statutes that these agreements are inconsistent with. Professor | |
| Kontorovich wants to suggest that failure to transmit the IAEA | |
| side deal of the Iran agreement violates the INARA, the Nuclear | |
| Agreement Review Act. I would just refer the Task Force to Jack | |
| Goldsmith's 2015 blog post on why the argument is intriguing | |
| but not convincing. | |
| Mr. Conyers. What say you, Professor Kontorovich? | |
| Mr. Kontorovich. My friend and teacher Jack Goldsmith wrote | |
| that blog post before he read my testimony and the full | |
| presentation of my arguments. | |
| Mr. Vladeck. Although he refers to you specifically in the | |
| post. | |
| Mr. Kontorovich. Yes, indeed. So he read part of the | |
| material in the testimony but not the fully elaborated | |
| argument. | |
| Again, I think it's important to point out, INARA does not | |
| require the President to transmit any deal. It's not a | |
| violation of INARA for the President to not transmit material. | |
| The President can say: This material is sensitive; I don't want | |
| to give it over. That is entirely consistent with INARA. | |
| However, the consequence of that under INARA is that the | |
| sanctions, existing statutory sanctions, can't be lifted. It's | |
| not a violation. It just has consequences in terms of statutory | |
| sanctions. There is nothing unconstitutional about the | |
| President not transmitting this material. The problem is that | |
| the President wants to act as if the material were transmitted | |
| when, in fact, it was not. And I would refer the Honorable | |
| Members to the various statements of congressional intent made | |
| during the discussions of INARA, where it was quite clear that | |
| Members understood they wanted to see everything to exercise | |
| their constitutional right to review the agreement. | |
| Mr. Vladeck. Although that's not what the statute says. I | |
| mean, I think that--so the problem is that I think Professor | |
| Kontorovich is right that one can find legislative history | |
| suggesting that everything was on the table. As I think | |
| Professor Goldsmith's post makes clear, if you actually read | |
| the text of the statute, there are certainly plausible, | |
| reasonable interpretations of the language that actually only | |
| refer to agreements to which the U.S. is a party, which does | |
| not include the IAEA side deal with Iran. | |
| I'm not saying that there is an obvious answer. My point is | |
| that I think we would need more of a smoking gun before | |
| reaching the conclusion that both of my colleagues reach that | |
| these agreements are clearly inconsistent with existing U.S. | |
| law. | |
| Mr. Conyers. Well, let me ask you this: Has either the | |
| Paris climate agreement or the Iran nuclear deal created new | |
| legal, binding commitments with which our country must comply? | |
| Mr. Vladeck. So I think, I mean, my understanding of both, | |
| and I'm certainly happy to hear what my colleagues think, is | |
| that they create process commitments. They create reporting | |
| requirements but that the actual text of the agreements was | |
| carefully negotiated to avoid binding, substantive legal | |
| obligations entirely to avoid the U.S. constitutional law | |
| objections. Right, indeed, there's a great post that I cite in | |
| my testimony about how the word ``shall'' was changed to | |
| ``should'' at the last minute for the emissions cap in the | |
| Paris climate agreement entirely to avoid the very argument we | |
| are now hearing that these agreements impose mandatory | |
| substantive obligations on the U.S. and, therefore, must be | |
| submitted to Congress. | |
| Mr. Conyers. Professor Kontorovich, do you generally agree | |
| with that assessment? | |
| Mr. Kontorovich. Yeah. I'm not as well read in the Paris | |
| deal, but I do not believe the Iran deal creates binding legal | |
| obligations for the United States, which is going to be | |
| extremely important when the Administration argues that State | |
| laws must be preempted because of the deal, which is not | |
| something that can happen if it does not create binding legal | |
| obligations for the United States. | |
| Mr. Conyers. Let me raise this last question here. | |
| Opponents of the Administration's policy claim that the | |
| President has exceeded his legal and constitutional authority | |
| in foreign affairs, but in what ways has Congress itself | |
| delegated its foreign policy powers to the executive branch? | |
| Mr. Vladeck. Well, I think in the case of the Iran deal, I | |
| mean, I think it's quite clear that Congress in prior statutes | |
| had already delegated to the President a wide range of | |
| authority to figure out what the sanctions regime should look | |
| like, to set the terms of the sanctions, to control the timing | |
| of the sanctions. And so, you know, as Professor Goldsmith | |
| says, but for those delegations, I think we would be in a very | |
| different position talking about how much authority the | |
| President already had to conduct the Iran agreement without | |
| Congress. | |
| Mr. Conyers. Do we have agreement on that generally? | |
| Mr. Kontorovich. It is exactly because Congress delegated | |
| such broad discretion to the President that limitations on that | |
| discretion, subsequent walk-backs of that discretion, and ways | |
| of monitoring that which INARA embodies need to be strictly | |
| construed. | |
| Mr. Conyers. Professor Groves--Mr. Groves, do you agree | |
| with that? | |
| Mr. Groves. I would just speak as to the Paris Agreement. | |
| We have very specific things that the President didn't adhere | |
| to that demonstrate his overreach. The test is not whether | |
| there was a specific statutory law that the President has | |
| breached. That's a pretty high bar. What we have in the Paris | |
| Agreement is we have him ignoring the C-175 procedure, which | |
| decides what's a treaty and what's a sole executive agreement. | |
| We have him ignoring the 1992 commitment made by a prior | |
| executive to the Senate to submit future agreements with | |
| targets and timetables to the Senate. That is the basis for my | |
| opinion that President Obama has gone beyond his mandate when | |
| it comes the Paris Agreement. | |
| Mr. Conyers. Thank you, Chairman King. | |
| Mr. King. I thank the gentleman from Michigan. | |
| And now I recognize another gentleman from Michigan, Mr. | |
| Bishop. | |
| Mr. Bishop. Thank you, Mr. Chairman. | |
| I appreciate your testimony today. Thank you very much for | |
| being here today. | |
| Mr. Groves, one of the questions I get from my constituents | |
| on some of these deals and, in particular, the Iran deal is, | |
| how do we know whether an international agreement should be a | |
| treaty or an executive agreement? | |
| Mr. Groves. Well, it's--I wish it was set in stone, but | |
| it's not. I wish the U.S. Supreme Court had come down with an | |
| opinion laying out all of the factors, but they haven't. And | |
| don't know if that's their role. What we do have is there were | |
| disputes over this back in the 1950's. You remember things like | |
| the Bricker amendment. You remember things like the Case- | |
| Zablocki Act where the separation of these powers between | |
| Congress and the President were debated. And one of the things | |
| that came out of that debate and out of that dispute was the | |
| Circular 175 procedure, which gives eight factors, which I | |
| detail ad nauseam or at least at length in my written | |
| testimony, which takes a look at the final Paris Agreement and | |
| element by element examines it to see if it meets those eight | |
| elements. And it's--my opinion is that they meet all eight of | |
| them; not one or two, not just five or six, but all eight, I | |
| believe, are satisfied when you look at the extensive and | |
| comprehensive treatment of climate change that the Paris | |
| Agreement gives you. | |
| So my short answer would be: the C-175 procedure is our | |
| best test for what's a treaty. | |
| Mr. Bishop. So how might Congress codify or clarify the | |
| treaty process to ensure that the Senate does have that | |
| opportunity to provide advice and consent? | |
| Mr. Groves. Carefully. We want to be able to do so without | |
| breaching the separation of powers. We want to do so in a way | |
| that doesn't hamstring future Presidents, Republican or | |
| Democrat, in making sound international agreements. I think, as | |
| I stated earlier, if it can be done in such a way that would | |
| foster transparency, it would--half the job would be there. As | |
| it stands, the State Department does an internal procedure | |
| under C-175 and ultimately submits a memo to the Chairman and | |
| Ranking of the Senate Foreign Relations, and that's the end of | |
| it. Very opaque. No one, I think, outside of those Committee | |
| hearings gets to read those, and maybe sometimes they shouldn't | |
| because they might be sensitive. But when we don't have more | |
| transparency or more ways that both Houses can kind of examine | |
| these things before it's too late, I think you end up with the | |
| disputes that we are having here today with the Iran nuclear | |
| deal and with the Paris Agreement. | |
| Mr. Bishop. Thank you very much. | |
| Mr. Kontorovich, can you explain to us what the current | |
| legal status is of the statutory Iran sanctions? | |
| Mr. Kontorovich. The statutory Iran sanctions, which have | |
| been embodied in numerous instruments and Congress has passed | |
| many sets of Iran sanctions, almost invariably had provisions | |
| allowing the executive to waive or suspend or sunset them. | |
| Congress can extend, can delegate that kind of authority to the | |
| executive. By the same token, that which Congress giveth, it | |
| can taketh away or limit. In INARA, and this relates to Mr. | |
| Gohmert's comment, Congress did a very unusual thing and | |
| flipped the majority presumption for congressional action, | |
| which is a significant deferral to the executive. That came at | |
| a price. The price was until the review obligations were met by | |
| the President, existing sanctions which allowed for waiver | |
| could not, in fact, be waived. Because those requirements were | |
| not complied with, the previous waiver authority contained in | |
| legislative sanctions is now suspended. That is to say: just | |
| like the legislative sanctions allowed for waiver, there has | |
| since been new legislation, namely INARA, which the President | |
| signed. | |
| Now, one might say: Isn't it a bit much because of these | |
| IAEA documents to limit the President's waiver authority? | |
| Again, that is not an inherent waiver authority. That's a | |
| statutory waiver authority which can be modified by statute. | |
| And if the President considers it very important, he could make | |
| these documents available. More importantly, state sanctions | |
| remain on the books. Some state sanctions are specifically | |
| authorized in the Comprehensive Iran Sanctions and Divestment | |
| Act of 2011, which does not given the President authority to | |
| waive or suspend them, unlike other sanctions. More | |
| importantly, INARA provides that it's provisions do not in any | |
| way affect assisting sanctions for Iran for human rights and | |
| other things, like support of terrorism, which is what some of | |
| the state sanctions involve. So I would say that INARA locks in | |
| and protects from executive action state sanctions that aren't | |
| covered by CISADA, in particular those which deal with human | |
| rights and support of terrorism. | |
| Mr. Bishop. Thank you, sir. | |
| I yield back, Mr. Chair. | |
| Mr. King. The gentleman returns the time. | |
| The Chair would now recognize the gentleman from Ohio, Mr. | |
| Jordan. | |
| Mr. Jordan. Thank you, Mr. Chairman. | |
| Professor Kontorovich, good to see you again. I think the | |
| last time we saw you was in Israel last fall. So we appreciate | |
| you being here and the other witnesses as well. So let me see | |
| if I can get this exactly right. This Framework on the Climate | |
| Change treaty actually in a roundabout way is circumventing | |
| Federal law and allowing the State Department--not allowing, | |
| but they are usurping and violating the law and actually | |
| sending money to an organization that--well, not even an | |
| organization, a roundabout way they are getting money to this | |
| organization which recognizes the Palestinian Authority as a | |
| state. Straighten me out on what's exactly happening here. | |
| Mr. Kontorovich. Okay. So the funding restrictions in | |
| question block money from being given to the United Nations if | |
| they are--treat the Palestinian Authority in various ways as a | |
| member state. | |
| Mr. Jordan. Right. | |
| Mr. Kontorovich. But one of those ways is accepting them | |
| into the various U.N. agencies. So the funding restriction says | |
| the U.N. doesn't get money. It's not money to the Palestinian | |
| Authority. | |
| Mr. Jordan. Right. | |
| Mr. Kontorovich. It's money to the U.N. agency. | |
| Mr. Jordan. Got it. | |
| Mr. Kontorovich. There are, in the omnibus spending bill, | |
| various other restrictions about money going to the | |
| Palestinians if they join the International Criminal Court, | |
| again, restrictions which I think were written overly narrowly | |
| in a way which make them easy to avoid. But this particular | |
| provision is about money to the United Nations Framework | |
| Convention on Climate Control, and it's a great place, by the | |
| way, to take a stand on principle the question we were | |
| discussing before. | |
| Mr. Jordan. Sure. | |
| Mr. Kontorovich. We are talking about $17 million. That's | |
| not going to break the climate, and it's not going to break the | |
| Middle East peace process. | |
| Mr. Jordan. So where does the State Department send the | |
| money? | |
| Mr. Kontorovich. My understanding is they send it to the | |
| administration of the UNFCCC, which is the Secretariat, which | |
| gets the money and pays the bills for these U.N. agencies. | |
| Mr. Jordan. Because in your opening statement, you said | |
| there's a difference between--you can't send money to a treaty; | |
| you have to send it to an organization. | |
| Mr. Kontorovich. Right. So the United Nation's Framework | |
| Convention on Climate Control is a treaty which creates an | |
| organization. So the Administration says: Oh, this doesn't | |
| count as a violation of the statute because it's not an agency. | |
| It's a treaty. | |
| Mr. Jordan. Yeah. | |
| Mr. Kontorovich. Now, it's true it's a treaty, but it is | |
| also an agency, just like the United Nations' charter is a | |
| treaty---- | |
| Mr. Jordan. Got it. Got it. | |
| Mr. Kontorovich [continuing]. Which creates an institution, | |
| the United Nations itself. | |
| Mr. Jordan. Okay. So a different subject. So you have that | |
| problem, I think a direct violation of the law we are seeing | |
| from our State Department, and then you also have this a bit | |
| more, in my judgment, more fundamental problem where the Iran | |
| agreement was not treated as a treaty, subject to the two- | |
| thirds requirement in the Senate for ratification. Would you | |
| agree with that? | |
| Mr. Kontorovich. So, no, I'm afraid I would not agree with | |
| that. | |
| Mr. Jordan. Okay. | |
| Mr. Kontorovich. Whether it's a treaty or not depends a lot | |
| on whether it creates obligations for the U.S., whether it | |
| trumps domestic law and so forth. The President has told us | |
| that that is not the case. I take his word on it, and I think | |
| the courts in the future if he would, for example, take action | |
| to preempt state sanctions---- | |
| Mr. Jordan. Okay. | |
| Mr. Kontorovich [continuing]. Would hold him at his word. | |
| And I think it's important to maintain that this deal does not | |
| create any international or national obligations for the United | |
| States. | |
| Mr. Jordan. Okay. | |
| Mr. Kontorovich. That, by the way, also gives a lot more | |
| room to a future Administration, for example, to deal with | |
| potential violations by Iran under this treaty. | |
| Mr. Jordan. All right. | |
| Mr. Kontorovich. Under this arrangement. | |
| Mr. Jordan. So the last point I would make, Mr. Chairman, | |
| is we had this--it seems in my mind we've got the issue with | |
| the climate agreement and the dollars. You have got the issue | |
| on the whole Corker-Cardin arrangement and what that was and | |
| how it moved through Congress. I think both of those are | |
| concerns. But, actually, one of the other big concerns is what | |
| we learned this week, which is this Administration, with the | |
| Iran agreement, wasn't honest with the American people, wasn't | |
| honest with the press. So that's even, in some ways, even more | |
| of a fundamental problem. You cannot have people in positions, | |
| high positions in our government, who aren't straight with the | |
| American people. You can't have them doing a con job, which is, | |
| based on what we have heard about Mr. Rhodes, is exactly what | |
| they tried to do. | |
| Mr. Groves, would you care to comment on that in my last | |
| minute? | |
| Mr. Groves. Well, a lot of this goes back to what I've said | |
| about transparency. I mean, under existing procedures, when the | |
| State Department is going to open up a new set of negotiations | |
| about a new international agreement, it's under an obligation | |
| to go through internal processes under C-175 and notify Senate | |
| Foreign Relations about its intentions. What I do not know | |
| sitting here, is if and when that notification went to Foreign | |
| Relations? Was it back with the hardliners in 2009, or was it | |
| when Ben Rhodes', you know, spin and, you know, his--the | |
| picture he was painting for the press happened? That type of | |
| transparency is the type of thing that---- | |
| Mr. Jordan. Is that something formal that they are supposed | |
| to do, the Administration is supposed to do with the Senate | |
| Foreign Relations and---- | |
| Mr. Groves. Absolutely. It's all under this particular | |
| procedure, which arose from these types of disputes that | |
| happened back in the 1950's when everyone was trying to | |
| rebalance---- | |
| Mr. Jordan. And do we not know if that took place or do you | |
| not know? | |
| Mr. Groves. I don't know what you guys have in your | |
| briefings but---- | |
| Mr. Jordan. Well, I'm just asking in a general sense. Mr. | |
| Chairman, that might be something we want to check out to see | |
| if they did what they are supposed to do. My guess is that if | |
| they are willing to, you know, not communicate in an honest | |
| fashion, they may not have done what they were supposed to do. | |
| Mr. Groves. Yeah. | |
| Mr. Jordan. That's something we should find out. | |
| Mr. Groves. What I'm hearing about is--the backtrack is | |
| these were nongovernmental channels. These were back channels, | |
| and so they will probably take the view to the extent that this | |
| ever comes out, that it wasn't yet ripe to trigger notification | |
| of Senate Foreign Relations. | |
| Mr. Jordan. Okay. Okay. Thank you, Mr. Chairman. | |
| Mr. King. And I thank the gentleman from Ohio. | |
| And the Chair takes note of the remarks and his testimony, | |
| and as we compile a report, we will also review that topic. | |
| The Chair now recognizes the gentleman from Idaho for his 5 | |
| minutes, Mr. Labrador. | |
| Mr. Labrador. Thank you, Mr. Chairman, and thank you to the | |
| witnesses for being here today. | |
| Mr. Groves, can you briefly describe the difference between | |
| a treaty and an executive agreement? | |
| Mr. Groves. Well, sure. You know, the executive agreements | |
| are usually narrow. They are often bilateral. They don't | |
| require additional congressional legislation to implement them | |
| or additional funding from Congress. Their provisions can | |
| usually be executed in a fairly brief period of time. They are | |
| less formal. There are just a number of things that history and | |
| practice has done to separate the two. Whereas treaties are | |
| comprehensive, lengthy, complex with lengthy periods of time, | |
| like the Paris Agreement is open-ended--there is no end to the | |
| provisions under it, including our obligations to fund the | |
| Green Climate Fund and other mechanisms to the tune of billions | |
| and billions of dollars. | |
| Mr. Labrador. So, in your opinion, is the Paris Agreement a | |
| treaty? | |
| Mr. Groves. I think on all fours, it's a treaty. If you | |
| just look at the objective factors under C-175--you look at | |
| historical practice, you look at the commentary of legal | |
| scholars, a lot smarter than I am--and apply that to the facts | |
| of the Paris Agreement, I think it's uncontrovertibly a treaty. | |
| Mr. Labrador. So can you briefly discuss Circular 175, or | |
| C-175, and the justifications that it gives to view the Paris | |
| Agreement as a treaty? | |
| Mr. Groves. Say again, sir? | |
| Mr. Labrador. Can you discuss the State Department Circular | |
| 175, and whatever justifications it gives to treat the Paris | |
| Agreement as a treaty? | |
| Mr. Groves. Yes, under the procedure, they are supposed to | |
| send a memo, a comprehensive memo, to the Foreign Relations | |
| Committee in the Senate explaining why they are going forward | |
| in a particular way, why they are going forward as an executive | |
| agreement versus a treaty. I'm not privy to that memorandum or | |
| even know that it was sent or not. But I'd sure be interested | |
| in reading it because making the case for a comprehensive | |
| Earth-saving international agreement, I'd like to see how that | |
| got fit into a sole executive agreement format. But I'm not | |
| privy to that memorandum. | |
| Mr. Labrador. So what steps or actions can Congress take in | |
| the future to ensure that a treaty negotiated by any | |
| Administration, whether it's the Obama, or the Trump | |
| administration, or any other Administration, follows the proper | |
| course of action and is properly submitted to Congress? | |
| Mr. Groves. Well, we need to raise the level of the current | |
| state because it was just ignored by the President. If there's | |
| a way to codify it without breaching statute--pardon me, | |
| without breaching the separation of powers agreements, there | |
| are proposals that have been out there. There is a legal | |
| scholar named Oona Hathaway who has given a comprehensive | |
| proposal on how we might approach this issue going forward, | |
| especially due to the huge propagation of executive agreements | |
| and congressional executive agreements in lieu of treaties. So | |
| it's something that the Heritage Foundation and some of my | |
| colleagues there are exploring with the idea of proposing | |
| legislation in the future--probably not during an election | |
| year, but maybe thereafter--where both the House and Senate can | |
| codify, make this process more transparent, avoid these types | |
| of conflicts in the future because the executive branch needs | |
| to know how much or little support it's going to have in the | |
| future with a particular agreement. I think more transparency | |
| is the answer. | |
| Mr. Labrador. Maybe it might be a good idea to do it during | |
| an election year because we don't know who the next President | |
| is going to be, so maybe both parties can actually work | |
| together on something like this. | |
| Mr. Groves. Sure. | |
| Mr. Labrador. What recourse does Congress have right now if | |
| an Administration refuses to submit a treaty to Congress? | |
| Mr. Groves. Well, it has got a few recourses. It can hold | |
| hearings. It can raise the level of scrutiny on what the | |
| President is doing. It can show the overreach. But when push | |
| comes to shove, its number one tool is exercising the power of | |
| the purse. And in things like the Paris Agreement--I'm unsure | |
| about the Iran agreement--but in the Paris Agreement, it | |
| pledges billions, tens of billions, probably over time even | |
| more, billions and billions of U.S. taxpayer dollars to go and | |
| finance something called the Green Climate Fund, which is going | |
| to redistribute funds to climate-change projects all around the | |
| world in developing countries. Congress has the absolute power | |
| to stop that money. Thus far, it has chosen not to do so, but I | |
| hope that this--hearings like these and Task Forces like these | |
| continue to keep the profile high on this so that when these | |
| funding measures come up again in the future, we can take a | |
| very close look at them. | |
| Mr. Labrador. Okay. | |
| Mr. Kontorovich, I think I'm pronouncing that right, what's | |
| the significance of the United Nations Framework Convention on | |
| Climate Change accepting the Palestinian Authority as a state | |
| party? | |
| Mr. Kontorovich. The significance is that it shows that | |
| this agency, supposedly dedicated to climate change, has | |
| decided to embroil itself in Middle East politics and recognize | |
| as a state party an entity that does not meet the criteria of | |
| international statehood. They don't do this with, you know, any | |
| other entity, with Puntland or Kurdistan. Under U.S. law, this | |
| means that the U.S. cannot fund the relevant United Nations | |
| agency of the framework convention. | |
| Mr. Labrador. Does this signal then a shift or a change in | |
| U.S. foreign policy? | |
| Mr. Kontorovich. The U.S. policy has banned the use of | |
| funds for this since the 1990's. The fact that the | |
| Administration is going to probably send them a check anyway I | |
| think doesn't signal a shift of policy so much as what the | |
| Administration might perceive as wiggle room in the relevant | |
| statutory language. But the executive has been lobbying | |
| Congress to get rid of these provisions entirely. And so | |
| Congress has to understand: this is a negotiation with the | |
| executive. His policies are clear. It's clear what he wants, | |
| and Congress can assert itself by giving less of that, by going | |
| in the opposite direction, rather--so that there will be | |
| consequences for not complying with the law. | |
| Mr. Labrador. Thank you, I yield back. | |
| Mr. King. The gentleman from Idaho returns his time. | |
| This concludes today's hearing. Thanks to all of the | |
| witnesses and Members for participating. | |
| Without objection, all Members will have 5 legislative days | |
| to submit additional written questions for the witnesses or | |
| additional materials for the record. I thank the witnesses. I | |
| thank the Members and the staff and the audience. This hearing | |
| is adjourned. | |
| [Whereupon, at 11:35 a.m., the Task Force was adjourned.] | |
| A P P E N D I X | |
| ---------- | |
| Material Submitted for the Hearing Record | |
| Prepared Statement of the Honorable Sheila Jackson Lee, a | |
| Representative in Congress from the State of Texas, and Member, | |
| Executive Overreach Task Force | |
| Thank you, Mr. Chairman. Good morning and welcome to our witnesses. | |
| We are here today to review and ``explore'' purported claims that | |
| President Barack Obama's Administration has engaged in executive | |
| overreach in matters of foreign affairs. | |
| In particular, the Majority asserts that the Administration acted | |
| beyond its executive powers when it did not submit to Congress for | |
| ratification two agreements known as the Iran Nuclear Deal and the | |
| Paris Climate Agreement. | |
| During a time when our Congressional calendar days are incredibly | |
| valuable and limited, it is disappointing that we are here | |
| ``exploring'' the validity executive actions that clearly fall within | |
| the boundaries of well-established executive powers. | |
| As Members of the Judiciary Committee, we all know and acknowledge | |
| that the United States Constitution invests the President with inherent | |
| constitutional authority in foreign affairs. | |
| That is, pursuant to Article II, Section 2, the President's | |
| executive authority includes the Commander-in-Chief power, as well as | |
| the power to make treaties, by and with the advice and consent of the | |
| Senate and provided two thirds of the Senate concurs. | |
| Once the Senate gives consent, the treaty, pursuant to the | |
| Constitution's Supremacy Clause, becomes the law of the land. (U.S. | |
| Const. Art. VI, cl. 2). | |
| This inherent power was recently protected and upheld by the | |
| Supreme Court in Zivotofsky v. Kerry, 135 S.Ct. 2076, 2085 (2015), | |
| which struck down a Congressional Act that constrained the President's | |
| constitutional authority to recognize foreign states. | |
| The Zivotofsky Court further explained that courts have | |
| ``recognized that the President has the authority to make `executive | |
| agreements' with other countries, requiring no ratification by the | |
| Senate or approval by Congress, this power having been exercised since | |
| the early years of the Republic.'' | |
| And as highlighted by Mr. Vladeck in his testimony, although ``the | |
| extent of the president's authority to conclude executive agreements is | |
| uncertain . . . the courts have never struck down a presidential | |
| executive agreement as unconstitutional.'' | |
| Moreover and more broadly recognized is Congress's traditional and | |
| historically acquiesced delegation of discretion to the Executive in | |
| matters of foreign affairs. | |
| By the acknowledgments of the Majority's own witnesses, this | |
| hearing is a futile attempt to control undeniably, far-reaching powers | |
| that have been constitutionally rooted or delegated to the Executive | |
| for more than two centuries. | |
| Yet, President Obama has repeatedly been accused of exceeding such | |
| powers that are simultaneously acknowledged as being readily available | |
| and legally permissible. | |
| While, the law always limits every power it gives, one cannot | |
| breach boundaries that have been legally given, nor can one overreach | |
| limitations unbreached. (David Hume) | |
| Notwithstanding, the central issue of concern here today is whether | |
| the Obama Administration had the constitutional authority to enter into | |
| executive agreements without congressional assent or whether the | |
| commitments made under these agreements may be otherwise unlawful. | |
| The Majority fails to take into consideration the true nature of | |
| the agreements as non-legally binding. | |
| An international agreement is generally presumed to be legally | |
| binding in the absence of an express provision indicating its nonlegal | |
| nature. | |
| State Department regulations recognize that this presumption may be | |
| overcome when there is ``clear evidence, in the negotiating history of | |
| the agreement or otherwise, that the parties intended the arrangement | |
| to be governed by another legal system.'' | |
| However, there is no statutory requirement that the executive | |
| branch notify Congress of every nonlegal agreement it enters on behalf | |
| of the United States. | |
| State Department regulations, including the Circular 175 procedure, | |
| also do not provide clear guidance for when or whether Congress will be | |
| consulted when determining whether to enter a nonlegal arrangement in | |
| lieu of a legally binding treaty or executive agreement. | |
| The primary means Congress uses to exercise oversight authority | |
| over such nonbinding arrangements is through its appropriations power | |
| or via other statutory enactments, by which it may limit or condition | |
| actions the United States may take in furtherance of the arrangement. | |
| the iran nuclear deal | |
| The Iran Nuclear Agreement Review Act of 2015 (P.L. 114-17) is a | |
| notable exception where Congress has opted to condition U.S. | |
| implementation of a political commitment upon congressional | |
| notification and an opportunity to review the compact. | |
| This act was passed during negotiations that culminated in the | |
| Joint Comprehensive Plan of Action (JCPOA) between Iran, the United | |
| States, the United Kingdom, France, Russia, China, and Germany. | |
| Under the terms of the agreement, Iran pledged to refrain from | |
| taking certain activities related to the production of nuclear weapons, | |
| while the other parties have agreed to ease or suspend sanctions that | |
| had been imposed in response to Iran's nuclear program. | |
| The agreement does not take the form of a legally binding compact, | |
| but rather a political agreement which does not purport to alter their | |
| domestic or international legal obligations. | |
| The Iran Nuclear Agreement Review Act provided a mechanism for | |
| congressional consideration of the JCPOA prior to the Executive being | |
| able to exercise any existing authority to relax sanctions to implement | |
| the agreement's terms. | |
| Although the act contemplates congressional consideration of a | |
| joint resolution of approval or disapproval of the agreement, it does | |
| not purport to transform the JCPOA into binding U.S. law. | |
| At most, the President would be authorized (but not required) to | |
| implement the JCPOA in a manner consistent with existing statutory | |
| authorities concerning the application or waiver of sanctions. | |
| the paris climate agreement | |
| In 1992 the Senate ratified the United Nations Framework Convention | |
| on Climate Change (UNFCCC) which created several legally binding treaty | |
| obligations upon the United States. | |
| The Majority fails to understand that these treaty obligations, | |
| however, did not create any quantitative reductions in greenhouse gases | |
| (GHGs) nor did they create enforceable objectives and commitments to do | |
| so. | |
| Importantly, the UNFCCC qualitatively obligates the United States | |
| to participate in and support international climate change discussions, | |
| commits the U.S. to work towards reducing its GHG emissions, and it | |
| signals U.S. agreement with the principal notion that climate change is | |
| a significant future challenge that must be addressed. | |
| The UNFCCC itself, however, creates no legally enforceable | |
| quantitative commitments to reduce GHG emissions. | |
| Per the UNFCCC, the 21st yearly session of the Conference of the | |
| Parties (COP21) met in Paris starting on November 30, 2015 and later | |
| adopted the Paris Agreement as well as a consensus decision intended to | |
| supplement and give effect to the agreement. | |
| The stated goal of the agreement is to ``[hold] the increase in the | |
| global average temperature to well below 2 degrees Celsius about pre- | |
| industrial levels'' and to pursue ``efforts to limit the temperature | |
| increase to 1.5 degrees Celsius above pre-industrial levels, | |
| recognizing that this would significantly reduce the risks and impacts | |
| of climate change.'' | |
| The Paris Agreement and the decision together create a single | |
| framework through which all of the parties, including the U.S., would | |
| work to reduce emissions. | |
| Significantly, the Paris Agreement contains no quantitative | |
| emission reduction requirements nor does it contain any enforcement | |
| mechanisms or penalties for parties who fail to meet their self- | |
| determined NDC. | |
| Instead, the agreement expects individual parties to set individual | |
| GHG emission reduction goals based upon their global contribution and | |
| their technological and economic capacities. | |
| The transparency framework under the agreement essentially provides | |
| the international community with the means to review the seriousness of | |
| a parties' stated NDC and to hold parties publically accountable for | |
| failing to set an NDC which will make meaningful progress towards the | |
| agreement's stated goal. | |
| Accordingly, the Administration is not constitutionally required to | |
| present the Paris Agreement to the Senate for ratification as it is not | |
| a treaty that ``bind[s] the United States to a course of action.'' | |
| Moreover, the Clean Air Act49 and the UNFCCC already provide | |
| authority for President Obama to carry out the United States' NDC | |
| commitments under the Paris Agreement. | |
| With these considerations and facts, the misguided direction of | |
| this hearing is undeniable. | |
| In fact, the Majority's own witness, Mr. Kontorovich, acknowledges | |
| in his concluding testimony that this hearing serves little purpose, if | |
| none other than to highlight that ``Congressional legislation in these | |
| areas is typically phrased quite narrowly and is replete with | |
| exceptions, waiver provisions, and so forth. [And that] much of this is | |
| justified by the need to provide the Executive with maneuverability in | |
| the fast-changing currents of world affairs.'' | |
| As a solution, Mr. Kontorovich instructs Congress ``to write | |
| broader, clearer legislation in the first place''--or to legislate with | |
| an eye of ``tying the Executive's hands.'' | |
| This solution indecorously encourages Congress to actually violate | |
| the separation of powers by creating an implausible imbalance tipped to | |
| Congress. | |
| The only hands that are tied here are those of the American public, | |
| as they are denied constructive and effective legislative action by | |
| their representational body of Congress. | |
| I urge my colleagues to consider this much in further consideration | |
| of hearings by this task force and committee. | |
| Thank you. | |
| [all] | |
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