Fact Check: Is the Paris Climate Agreement Unconstitutional?

President Joe Biden is upholding a campaign promise to make the climate a priority in his first days in office by signing Wednesday an executive order allowing the U.S. to rejoin the Paris Agreement to combat global warming.

The order reverses President Donald Trump's decision that went into effect last year to pull the U.S. out of the agreement.

The Claim

Representative Lauren Boebert (R-Colo.) reacted to Biden's decision to rejoin the Paris Agreement in a Thursday tweet that reads in part: "America shouldn't spend a penny on this unconstitutional treaty unless it is ratified by the U.S. Senate."

Unilaterally entering the Paris Agreement was wrong in 2016 and it’s wrong now.

America shouldn’t spend a penny on this unconstitutional treaty unless it is ratified by the U.S. Senate.

— Lauren Boebert (@laurenboebert) January 21, 2021

The Facts

The Paris Agreement came into existence after 196 countries adopted it at the 2015 United Nations Climate Change Conference, also known as COP 21, in Paris.

The purpose of the agreement is to combat climate change by reducing global greenhouse gas emissions and to limit the global temperature to 2 degrees Celsius or below.

The agreement officially became effective in 2016 under the United Nations Framework Convention on Climate Change (UNFCCC).

Under international law, legally binding agreements between multiple countries become treaties.

The UN states that the Paris Agreement "is a hybrid of legally binding and nonbinding provisions."

Boebert's team issued a statement about her claim to Newsweek in an email, saying, "She personally believes it's unconstitutional that the U.S. Senate never ratified the Paris Agreement as it is a treaty in her opinion."

The U.S. Constitution designates the power of treaty-making to the president and the Senate.

Article II Section 2 of the Constitution states that 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."

Although it is true that a treaty requires ratification by the Senate, an interpretation of Article II shows that it also can be passed by the president through an executive agreement.

"Under U.S. law, a treaty is specifically a legally binding agreement between countries that requires ratification and the 'advice and consent' of the Senate. All other agreements (treaties in the international sense) are called Executive Agreements, but are nonetheless legally binding for the U.S. under international law," according to PHE.gov.

President Barack Obama exercised his executive power when he entered the Paris Agreement, signing it in August 2016 without ratification from the Senate.

"The authority to negotiate treaties has been assigned to the President alone as part of a general authority to control diplomatic communications. Thus, since the early Republic, the Clause has not been interpreted to give the Senate a constitutionally mandated role in advising the President before the conclusion of the treaty," according to the Constitution Center.

In 2017, Trump announced his decision to exit the agreement, which officially occurred November 4, 2020, making the U.S. the only country to withdraw from it.

Just like Obama was able to enter the agreement, Trump was able to exit it without ratification from the Senate.

"This practice is easy to justify under the constitutional text," NYU Law Professor David Golove told Newsweek in an email. "A treaty, which the Constitution empowers the President and Senate to make, is just a binding agreement under international law. Non-binding agreements are not treaties and were never understood to be such."

Since the agreement is both legally binding and non-binding, "the Paris Accord was within the President's powers, then, for two reasons: the important commitments were "non-binding" and the "binding" commitments were sufficiently modest to be within his independent powers to make executive agreements," Golove said, mentioning that the practice goes back to before the 20th century.

More executive agreements have passed in U.S. history than treaties have been ratified by the Senate.

"From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. Between 1939 and 1993, executive agreements comprised more than 90% of the international agreements concluded," according to Cornell Law School.

Biden's decision to rejoin the agreement will take 30 days to officially go into effect.

The Ruling

False.

Rejoining the Paris Agreement without ratification from the Senate is not unconstitutional. Obama first entered the agreement as president through the executive powers granted to him by the Constitution.

The same constitutional authority that allowed Obama's action allowed Trump to exit the agreement.

And it allows Biden to rejoin it.

Rep. Boebert Denies Capitol Giving Insurrectionists Tour
Representative Lauren Boebert (R-Colo.) speaks during a House debate on certifying presidential Electoral College results in Washington, D.C. on January 6, 2021. congress.gov via Getty Images/Getty