Balkinization: Rule of Recognition for a Government Legal Position

Comments:

Trump's contemporaneous statements consistent with his campaign statements bootstrap the relevance of the of the latter as a Pet. for Cert is currently before the Court. Judicial notice? Working the refs?

Consider this "shrink-wrapped" verse in this age of Trump:

***
2 SHADES OF FREUD

Yes, Schadenfreude*
Like a mouse being toyed,
Is a feeling enjoyed,
Not something to avoid.

But Freudenschade**
Leaves one dismayed
And should be forbade
To lessen a tirade.

A mere Freudian slip
Twixt a cup and the lip,
Or just being flip
With a dreamy quip?

*Pleasure derived from the misfortunes of others
**The feeling of distress from seeing the successes or pleasures of others

***

How many "Shades of Trump" are there? Let me count the Tweets. And we're only in the second 100 daze [sick!].

# posted by

Shag from Brookline : 10:58 AM

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# posted by

Joe : 11:34 AM

The official position is the one argued in the briefs and so forth.

But, the courts still have to determine what the thing being examined truly is. As with the determination of legitimate purpose, his public statements are going to have some influence there. This also will realistically affect the decision-makers and others involved in its application.

"Gambling is not allowed" might be the official position, but when the person also accepts his winnings with a "thank you," it is likely to realistically "control" in some fashion.

# posted by

Joe : 11:36 AM

So, could you explain the contradiction, as you see it, between this tweet and the official position? Because it isn't obvious to me.

# posted by

Brett : 12:07 PM

Gerard:

The Supremes should pay exclusive attention to what the EO says and how the EO is being enforced. Problem solved.

# posted by

Bart DePalma : 12:12 PM

With Brett's expertise in building political bridges to nowhere, It's clearBrett doesn't understand the obvious. As one of the Forgotten of Trump's voter base (aka lemmings), Brett has forgotten any sense of linguistics and logic me might have once had. Trump gives new meaning to res ipsa loquitur.

As to SPAM's "Problem solved." his solution suggests why his legal career is bogged down in the rural section of the Mile High State (of mind) played out with alleged drunks in the local police courts making plea deals where knowledge of evidence is not required. If SPAM is trying to work the refs, their all simultaneously whistling dead ball.

Let's give a big hand to Tweedledee and Tweedledumb for displaying Freudenschade.

# posted by

Shag from Brookline : 1:44 PM

Corey Brettschneider just cross posted from Take Care his take on Trump's tweet that perhaps Brett can understand. Query: Can a President make statements against interest in connection with legal disputes over his EOs?

# posted by

Shag from Brookline : 1:55 PM

Brett

http://www.latimes.com/politics/la-na-pol-trump-court-tweets-20170605-story.html

Bart

SCOTUS has recognized that ostensibly neutral policies which largely impact minorities can be enacted by officials because and with the intent of that result because of animus. So they have a duty to examine evidence of intent beyond the text of the policy itself. Shutting one's eyes to reality is a terrible way for the law to work.

# posted by

Mista Whiskas : 1:59 PM

In their brief the SG argued that Trump was acting in "good faith" by signing EO2 in order to comply with the 9CA's concerns about the constitutionality of EO1. (This argument was made because of Justice Kennedy's concurrence in Din and his "affirmative showing of bad faith" test.)

Trump's tweets directly contradict the SG's representation that Trump signed EO2 (in good faith) to satisfy the 9CA's concerns about EO1. Trump made it crystal clear today that he didn't give a hoot about conforming EO2 to the 9CA's concerns about EO1; he wanted EO1 all along -- not the "watered down" EO2; and he still, today, wants to "ban" anyone from the six Muslim-majority countries from coming to the US.

I still don't understand how anyone with a scintilla of integrity, honesty, self-worth, and love for our democracy could work under (or continue to support) this ignorant, know-it-all, bullying, narcissist.

# posted by

Unknown : 2:51 PM

To spice up Trump's tweets, Kellyanne Conway chastised the media for paying attention to them and then then her hubby, George, sent out a tweet to the effect that Trump's tweets could be a problem for Trump's EOs before the courts, closing his tweet with "Sad." Apparently this didn't sit well with Kellyanne and George came out with a series of tweets somewhat walking back his initial tweet. Just maybe there won't be a tweet-storm pillow talk episode tonight at the Conway residence. Oh to be a fly on the wall for apparent discussions between Kellyann and George on the latter's tweet, which apparently missed the sweet spot of marital bliss. (Early in my marriage I learned the two magic words necessary for such bliss: "Yes, dear.") George is staying in private big law practice where he may be facing smirks from firm members and employees.

# posted by

Shag from Brookline : 3:33 PM

Eugene Kontorovich: Trump’s travel tweets do not hurt the legal case for his executive orders

"A fairly bizarre series of tweets by President Trump criticizing the Justice Department for its handling of his executive orders on visas has lead most observers to conclude that he has cemented the constitutional challenge to his own policies, blown up the government’s case and confirmed his own bigotry.

But reading the actual tweets reveals absolutely none of this: To the contrary, they may actually buttress the government’s defense of the travel restrictions in the Supreme Court. Certainly any reading of them as confirming a “Muslim ban” policy reads them through the same presumption of animus that informed the lower court readings of his campaign statements. However, animus is the thing to be proven — and it cannot be found in these tweets."

# posted by

Brett : 3:48 PM

Mr. W:

Your case law in not analogous. Foreign citizens of nations occupied by enemy terrorist militias are not minorities or citizens of the United States with fundamental rights guaranteed by our Constitution.

In the case of foreign travel, rather than applying strict scrutiny of government motives or applying any balancing analysis at all, the Supreme Court has repeatedly commanded the courts to dismiss claims for entry “on the basis of a facially legitimate and bona fide reason” for the exclusion. Barring wartime travel from enemy occupied nations is a compelling national interest.

This question has already been decided and the lower courts are willfully violating the law.

# posted by

Bart DePalma : 3:49 PM

Brett excerpts the most conclusory part of Kontorovich, probably because that's the part that matters to him.

After reading further to his actual arguments, they seem unconvincing. What's the 'politically incorrect' motive he claims for his policy? And he admits the second policy is essentially the first.

# posted by

Mista Whiskas : 4:18 PM

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# posted by

Mista Whiskas : 4:20 PM

And I counter Brett with Joseph Fishkin's recent post at this Blog in addition to Corey Brettschneider's post here and at Take Care.. I assume Brett understands that the Trump Tweets are critical of the DOJ's handling of the cases on travel bans. That's a client challenging his/her own attorney. Perhaps this hits home with Brett who years ago pored out his sole about the bad legal profession including his own attorney in a domestic relations matter. So let's set up a tally sheet. George Conway initially thought in a tweet that Trump's tweets could be a problem and "Sad." Maybe if years ago Brett had used the two magic words he might not have needed an attorney who he thinks may have sold him out. It's possible that the Court might defer on granting Cert by directing the lower courts to first address the recent Trump Tweets in respect to their decisions.

I await further counters from Brett. But he might also consider the public impact on the multitude of Unforgottens who are not Trump lemmings.

And SPAM chimes in with:

"This question has already been decided and the lower courts are willfully violating the law."

"Willfully" is rather strong language coming from an attorney.

# posted by

Shag from Brookline : 4:27 PM

Bart,
It's analogous if this is an Establishment Clause case about disfavoring. Disfavoring people based on their religion wouldn't be a 'legitimate' reason under our jurisprudence, and it's increasingly harder to maintain this is being offered in good faith (bona fide).

# posted by

Mista Whiskas : 4:28 PM

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# posted by

Bart DePalma : 4:32 PM

Mr. W:

The Establishment Clause does not apply to the Trump EO any more than the Free Speech Clause applied to the Kleindienst and Din cases.

# posted by

Bart DePalma : 4:32 PM

Mandel and Din said you have to have a legitimate reason, establishing religion is not a legitimate reason.

# posted by

Mista Whiskas : 4:37 PM

That's within Mandel. Preferably SCOTUS will just overrule that awful precedent. We shouldn't allow the federal government to act in ways everyone now agrees are affronts to American constitutional values as long as they do so in the arena of immigration policy. And I'm willing to bet that's how Kennedy will see it.

# posted by

Mista Whiskas : 4:41 PM

Mr. W: Mandel and Din said you have to have a legitimate reason, establishing religion is not a legitimate reason.

Inadvertent bingo. What state religion does the Trump EO establish?

We shouldn't allow the federal government to act in ways everyone now agrees are affronts to American constitutional values...

Where do we find these "values?"

The Constitution's black and white text grants the President and Congress plenary powers to limit or ban fearing travel into the United States.

# posted by

Bart DePalma : 4:57 PM

Our Establishment Clause precedent prohibits favoring or disfavoring on the basis of religion. The EO was found by the lower courts to have the intent and effect of disfavoring Muslims.

"The Constitution's black and white text grants the President and Congress plenary powers to limit or ban fearing travel into the United States."

The only text that can be said to do that is the slave trade clause, and, among other problems with relying on that clause for such a power, it does so by implication. Yet the prohibition on establishment is plain and direct.

# posted by

Mista Whiskas : 5:03 PM

The values are found in the black and white text of the constitution. We don't bar speech, disfavor on religion, discriminate based on race. Mandel can be read to allow the federal government to do just that as long as it is in the area of immigration policy.

One would think an ostensible libertarian wouldn't care much for a grant of unrestricted plenary power in any area.

# posted by

Mista Whiskas : 5:06 PM

Mr. W: Our Establishment Clause precedent prohibits favoring or disfavoring on the basis of religion.

Apart from the fact that none of this precedent extends to foreign citizens living overseas, applying this precedent to an enemy which self-identifies on the basis of religion and is waging a religious war against the United States is nothing less than madness. By definition, any policy prohibiting travel into the United States by members or adherents of such an enemy would discriminate on the basis of religion.

# posted by

Bart DePalma : 5:10 PM

"applying this precedent to an enemy which self-identifies on the basis of race and is waging a race war against the United States is nothing less than madness"

"By definition, any policy prohibiting travel into the United States by members or adherents of such an enemy would discriminate on the basis of religion."

No, it would discriminate based on the hostility of the belief, whether based in religion or not. Even Trump is (usually) sensual enough to not say we are at war with Muslims but rather 'radical Islamic terrorism.'

# posted by

Mista Whiskas : 5:17 PM

Sensical not sensual, though the later may suit him well.

# posted by

Mista Whiskas : 5:19 PM

The Bill of Rights was put in place for various reasons, but to counter some alleged "plenary" power to do such and such in violation of the rights spelled out seems up there. Mr. W. noted he didn't find David Bernstein worthwhile. Eugene Kontorovich is not exactly superior when it comes to the Volokh Conspiracy bunch. But, you know, in each case, weigh the arguments as one's judgment deems appropriate.

# posted by

Joe : 6:27 PM

"Blogger Mista Whiskas said...
"applying this precedent to an enemy which self-identifies on the basis of race and is waging a race war against the United States is nothing less than madness"

Stop rewriting my posts and then placing them in quotations. I posted nothing about race.

# posted by

Bart DePalma : 6:56 PM

Joe:

The Bill of Rights applies to the People, not foreign citizens living overseas.

# posted by

Bart DePalma : 6:57 PM

The Bill of Rights does various things.

The First Amendment in part "Congress shall make no law" regarding various things. Only after the semicolon, does it say "or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Congress is not allowed to establish religions overseas.

The Fifth Amendment speaks of various rights of "persons." There is a certain floor that "persons," not only "the people" can rely upon. Words have meanings. "Person" was used specifically. It also doesn't say "only on U.S. soil." The U.S. cannot prosecute foreigners in sham courts after torturing confessions on foreign soil.

The 8A, not using "person" or "the people," provides something which "shall not" be done. Again, it is a general prohibition, not just something for "the people" living on U.S. soil.

Anyway, "the people" are affected by the travel ban in various respects as shown by various opinions decided already. Anyway, my comment was in reply to this:

"The Constitution's black and white text grants the President and Congress plenary powers to limit or ban fearing travel into the United States."

Now we have a more limited claim:

"The Bill of Rights applies to the People, not foreign citizens living overseas."

Still wrong though.

----

Michael Dorf discusses problems with the tweets here:

http://www.dorfonlaw.org/2017/06/trump-is-not-playing-ten-dimensional.html

He cites Leah Litman's list as well. Litman also responded to Eugene Kontorovich.

# posted by

Joe : 7:23 PM

When would be an appropriate time to make a tally? Bret has come up with just 1 counter which Leah made mincemeat of.

# posted by

Shag from Brookline : 8:16 PM

Joe:

Foreign citizens living overseas have no due process rights under the amendments of the Bill of Rights. We can and have tried such persons in overseas military tribunals. Johnson v. Eisentrager, 339 U.S. 763 (1950). Persons of any citizenship gain constitutional due process rights when the government brings them into our judicial system.

The only case of which I am aware where the Court extended such rights to foreign citizens living overseas was the baseless Boumediene decision, overturning hundreds of years of Anglo American law by extending habeas corpus review to enemy prisoners of war.

I am unaware of the Court extending substantive rights under the Bill to foreign citizens living overseas.

As the sole executive and CiC, the President has general powers to govern travel into the United States and to defend our borders.

Article I grants Congress the power to enact laws governing naturalization.

The Establishment Clause states: "Congress shall make no law respecting the establishment of religion..." Trump is not Congress and his EO in no way establishes a religion.

The lower courts are attempting to graft the Lemon case rewrite and expansion of the EC onto the grant of powers over foreign travel to the President and Congress. To the extent that bad case is still good law, Lemon applies to the People within the United States, not foreign citizens living overseas.

# posted by

Bart DePalma : 8:17 PM

"Stop rewriting my posts"

I only changed one word. And the principle is exactly the same: if the government is not restrained by the Establishment clause in the area of immigration policy then it's also not restrained by the 14th and 5th and could bar all black immigration. Face what you're championing.

More importantly, let's have Kennedy face it.

# posted by

Mista Whiskas : 9:27 PM

"David Bernstein worthwhile. Eugene Kontorovich is not exactly superior when it comes to the Volokh Conspiracy bunch."

One thing Kontorovich does is make Bernstein seem smart and honest (in comparison).

# posted by

Mista Whiskas : 9:29 PM

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# posted by

Joe : 9:32 PM

"Trump is not Congress and his EO"

This is pathetic. By this logic a President could enact policy restricting freedom of speech or assembly based on the idea that he ain't Congress!

"Lemon applies to the People within the United States"

You always say you champion the plain text as written. The Establishment Clause textually applies not to the people but to the acts of the federal government. It flatly and squarely prohibits any establishment by that government, with no mention of 'the people' of the United States.

# posted by

Mista Whiskas : 9:34 PM

I'm not overly convinced debating BP is useful, but it is probably somewhat useful to reaffirm certain basic principles that are subject to some confusion.

# posted by

Joe : 9:34 PM

SPAM's response to Joe is like that child's riddle: "What's black and white and red all over?" SPAM fails to read Joe's comment with care. The Constitution has to be be "read" as a whole to understand some of the parts. Instead SPAM focuses making Lemon-aid. Mr. W has once again patiently pointed out to SPAM the errors of his ways. Joe provided an overview with some care. But SPAM comes back over and over about foreign citizens living overseas as not having constitutional rights. While that may be so in many instances, it is not absolute.

So, at the federal level the 1st A does not apply to the Executive Branch because the reference is to Congress? Mr. W explained the establishment clause but SPAM doesn't understand the case law.

By the Bybee [expletives deleted], was "Congress" in the 1st A imputed in other of the Bill of Rights such that they did not apply to the States until the 14th A incorporation of some of the Bill of Rights?

# posted by

Shag from Brookline : 9:40 PM

Joe, I think your point is bolstered by the text of the 14th Amendment. In the EP Clause it specifically refers to "deny to any person within its jurisdiction" but makes no such qualification in the DP clause, speaking only of 'persons,' period.

It's interesting to see Bart go to the mat to defend the plenary power case law. First because what good libertarian applauds a grant of unrestricted power to the federal government in an area? Secondly because the case law is grounded *outside* the text: the reasoning is 'we've divined the nature of a sovereign and implied in that nature is plenary power over immigration.' It doesn't even have the toehold of emanations and penumbras!!!

# posted by

Mista Whiskas : 9:43 PM

A limited comment.

Foreign citizens living overseas have no due process rights under the amendments of the Bill of Rights. We can and have tried such persons in overseas military tribunals. Johnson v. Eisentrager, 339 U.S. 763 (1950). Persons of any citizenship gain constitutional due process rights when the government brings them into our judicial system.

That case is a limited one concerning "jurisdiction of civil courts of the United States vis-a-vis military authorities in dealing with enemy aliens overseas." It's of unclear staying power in the 21st Century. And, it doesn't address various other cases not involving "our judicial system" as such. Government procedure arises in a variety of situations not limited to that.

Nonetheless, it does not answer the question of the reach of federal power as a whole. The reach is an open question, but I hold to the idea that by the text of the Bill of Rights, non-citizens are protected if only because the federal government lacks certain powers. The 1st and 8th Amendments are pointed to here.

The matter is academic to some degree since again this case burdens the rights of American citizens and raises structural concerns that limits federal power.

# posted by

Joe : 9:51 PM

Like usage of history, the text only takes you so far.

But, both are pretty useful.

# posted by

Joe : 9:57 PM

BD: "Stop rewriting my posts" >> Mr. W: I only changed one word. And the principle is exactly the same...

You are free to post anything you like under your own name. Do not put it in quotes and attribute it to me.

BD: "Trump is not Congress and his EO" >> This is pathetic. By this logic a President could enact policy restricting freedom of speech or assembly based on the idea that he ain't Congress!

The Constitution grants Congress the legislative power to set policy by law and requires the President to faithfully enforce those laws. The President does not have the power to set policy concerning speech or assembly among the civilian population. That is why the First Amendment is limited to the laws of Congress.

BD: "Lemon applies to the People within the United States" >> Mr. W: You always say you champion the plain text as written. The Establishment Clause textually applies not to the people but to the acts of the federal government.

It applies to the laws of Congress and the jurisdiction of those laws is the United States.

# posted by

Bart DePalma : 10:32 PM

Joe: The matter is academic to some degree since again this case burdens the rights of American citizens and raises structural concerns that limits federal power.

The Trump EO does not limit any right of an American citizen because American citizens do not have a right to import foreign citizens.

The Establishment Clause simply prohibits Congress from enacting a law establishing a state religion in the United States. It places no limits of the power of the President and Congress over immigration.

# posted by

Bart DePalma : 10:37 PM

"The President does not have the power to set policy concerning speech or assembly among the civilian population."

Don't be silly Bart. Even the case you keep pointing to, Mandel, "recognized that First Amendment rights are implicated" by executive policy. If the President, as executive, is not held to the First Amendment, then local sheriffs and police chiefs would not be under incorporation. You know that's untenable given case law.

"It applies to the laws of Congress and the jurisdiction of those laws is the United States."

No, no, you can't escape that easily! Again, the case you cite, Mandel, says clearly it relies on "the plenary discretionary authority Congress granted the Executive." The plenary power is in Congress. And the First Amendment says, clearly and literally, about the power of Congress: "Congress shall make no law respecting an establishment of religion." Period. Nothing about "shall make no law respecting an establishment of religion which effects citizens or persons under jurisdiction." You're reaching outside the text!

# posted by

Mista Whiskas : 11:10 PM

"It places no limits of the power of the President and Congress over immigration."

Again, extra-textual. The Establishment Clause says Congress "shall make no law respecting an establishment of religion." Where in the Constitution is the text providing an exception about that regarding immigration Bart? Point to the place in the four corners of the document.

# posted by

Mista Whiskas : 11:12 PM

Eugene Volokh writes almost weekly about judges who issue orders restricting speech-for example telling divorce parents they can't publish this or that-and how they get overturned by appellate courts because the First Amendment applies to the courts too, not just Congress. Give it up Bart.

# posted by

Mista Whiskas : 11:31 PM

Mr. W:

Before we continue this conversation, I am discussing at your request the Constitution as it is written, not how subsequent courts rewrote it. Let's not mix up the two.

BD: "The President does not have the power to set policy concerning speech or assembly among the civilian population."

Mr. W: Don't be silly Bart. Even the case you keep pointing to, Mandel, "recognized that First Amendment rights are implicated" by executive policy.

"Implicated" does not mean violated.

If the President, as executive, is not held to the First Amendment...

I never said that. Article II requires the President to enforce the Constitution.

The distinction I believe the drafters were making was that policy is set by law and only Congress has the power to enact law.

BD: "It places no limits of the power of the President and Congress over immigration."

Mr. W: Again, extra-textual. The Establishment Clause says Congress "shall make no law respecting an establishment of religion." Where in the Constitution is the text providing an exception about that regarding immigration Bart? Point to the place in the four corners of the document.

Determining who may or may not enter the country does not establish a state religion. These provisions are unrelated under the text of the Constitution.

Opponents of the Trump EO are instead attempting to shoe horn later progressive court rewrites of the Establishment Clause into immigration. Sophistry.

# posted by

Bart DePalma : 8:52 AM

SPAM doubles,, triples, quadruples, ad infinitum down as he gets his derriere handed to him. While on occasion be relies upon a decision of the Court to make a point, caught with his constitutional pants down he attacks in general Court decisions that in his view do not comply with the text of the Constitution. SPAM will soon ve reverting to his anarcho libertarian stance.

But a positive to SPAM's ad infinity is that the rule of law in the police courts in which he practices can survive with his concentration on this thread digging deeper and deeper into constitutional abyss.

# posted by

Shag from Brookline : 9:21 AM

"policy is set by law and only Congress has the power to enact law."

Silly. Policy is often set by the President. The very topic we're talking about for example!

"Determining who may or may not enter the country does not establish a state religion."

When the criteria is religion it does.

# posted by

Mista Whiskas : 9:31 AM

At Take Care's Daily Update there is included a tally on Trump's Tweets. Maybe Brett's shoveling through Internet piles can come up with a pony to ride while tilting at windmills. (Windmills produce clean energy which Trump and his ilk detest. EPA Director Pruitt on the Sunday political shows stated that the Trump Administration's policy is for "fuel diversity" - but apparently not for people - unless the policy includes burning opponents at the stake.)

# posted by

Shag from Brookline : 9:43 AM

Take Care and Lawfare explains that the U.S. very well appears to still be required to follow the Paris Climate Agreement so alternative energy might be useful.

As to the original question, there was something on Twitter where law professors etc. summarized major court opinions in 140 or less characters. A full Twitter lawsuit, with tweeted briefs and oral arguments ... right around the corner?

# posted by

Joe : 10:01 AM

Joe's "full Twitter lawsuit" proposal provides for "oral arguments." But why not via twitter as surely the 9 characters on SCOTUS can deal with 140 characters at a time in questioning, challenging counsel as well as each other, in the Twitter lawsuit. Maybe this might inspire Justice Thomas to engage in "Twittorals."

Query: Should blog comments be limited to 140 characters?

# posted by

Shag from Brookline : 11:26 AM

The three London jihadis have been named as:
Khuram Butt - born in Pakistan, child refugee, naturalised British citizen.
Rachid Redouane - Moroccan or Libyan.
Youssef Zaghba - Moroccan father, Italian mother, born in Morocco.
The Manchester suicide bomber was Salman Abedi, British national, of Libyan refugee parents.

The only one of these who might possibly have been denied entry to the USA by Trump's travel ban was Redouane, if he was indeed Libyan. He is down as Moroccan on his daughter's British birth certificate.
It does not seem likely that with their backgrounds any of them would have been able to get visas under the existing US procedures.

# posted by

James Wimberley : 12:14 PM

Perhaps a Trumpian response to James W. might be: "INTERNMENT!" That's what was suggested in the UK by Trump surrogate Farage.

# posted by

Shag from Brookline : 1:59 PM

Item: AprilDRyan‏Verified account @AprilDRyan 2h2 hours ago

@PressSec says The presidents tweets are considered official statements. Contradicting what has been said before to include yesterday.

# posted by

Joe : 5:26 PM

"Take Care and Lawfare explains that the U.S. very well appears to still be required to follow the Paris Climate Agreement so alternative energy might be useful."

Further demonstrating the irony of the name they chose for the blog. We never ratified the Vienna Convention, but we DID ratify the Constitution, which is quite explicit about the need for the Senate to ratify a treaty for it to be binding. No amount of rationalization can make us party to an unratified treaty.

I find it amusing how often "Take Care" complains about Trump actually taking care to follow the law and the Constitution. How dare he do that where they don't like them!

# posted by

Brett : 5:32 PM

Shag: Perhaps a Trumpian response to James W. might be: "INTERNMENT!"

Folks, unless we find another alternative to the new dystopian normal of regular massacres, people will begin to scream for and likely get remedies like internment or exile.

# posted by

Bart DePalma : 6:02 PM

Further demonstrating the irony of the name they chose for the blog.

I cited two blogs. I could have cited more making the same point. For instance, there is Snopes: http://www.snopes.com/2017/06/01/authority-paris-agreement/

The authority for the legally binding aspects of the agreement actually comes from a treaty that the United States Senate ratified in the 1990s: The United Nations Framework Convention on Climate Change (UNFCCC).

Just a taste. Take Care, Lawfare, Snopes etc. spells out the details for those interested.

We never ratified the Vienna Convention

What one are you talking about?

but we DID ratify the Constitution, which is quite explicit about the need for the Senate to ratify a treaty for it to be binding. No amount of rationalization can make us party to an unratified treaty.

As noted, a treaty was used here, but generally

[https://www.lawfareblog.com/paris-agreement-climate-change-legitimate-exercise-executive-agreement-power]

The President’s authority to enter into internationally legally binding agreements without Congressional participation or Senate advice and consent dates to the earliest years of the Republic. More than 90% of binding international agreements governed by international law are concluded by the United States without Senate advice and consent, known as “executive agreements.” As the President must act consistently with the Constitution and laws of the United States, every executive agreement must find legal support in the form of one or more of the following: (1) Congressional legislation; (2) an article II, section 2 treaty; or (3) the President’s own Constitutional powers. A process for determining the legal basis for an anticipated international agreement, known as “Circular 175,” has been in place since 1955 and applied by every Republican and Democratic President since.

I find it amusing how often "Take Care" complains about Trump actually taking care to follow the law and the Constitution. How dare he do that where they don't like them!

Disagreement with others who spell out their reasoning regarding what the Constitution means is not a matter of the other party using what they "like" as compared to what the law "is."

# posted by

Joe : 7:10 PM

A more recent Lawfare article:

https://www.lawfareblog.com/while-trump-pledges-withdrawal-paris-agreement-climate-international-law-may-provide-safety-net

The article at one point links to the "Vienna Convention on the law of treaties"

The U.S. Dept. of State:

The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.

https://www.state.gov/s/l/treaty/faqs/70139.htm

The irony, amusement or whatever factor of all of this is unclear.

# posted by

Joe : 7:20 PM

Consider the time span of Brett's absence from the front lines in his search for some pony for Trump to saddle up. And Brett's comprehension level of Take Care:

"I find it amusing how often "Take Care" complains about Trump actually taking care to follow the law and the Constitution. How dare he do that where they don't like them!"

Actually Take Care points to the many ways Trump is failing to take care per Article II.

And SPAM goes full anarcho libertarian with his Chicken Little:

"... people will begin to scream for and likely get remedies like internment or exile."

What a maroon.

Perhaps I should alter my akas for this duo to: Tweedledumb and Tweedledumber.

# posted by

Shag from Brookline : 7:29 PM

"unless we find another alternative to the new dystopian normal of regular massacres"

Are you talking about the Orlando workplace shooting this week? Those regular massacres seem to get relatively little press and few policy pushes to deal with them...

# posted by

Mista Whiskas : 7:58 PM

"The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties."

The Executive branch, unsurprisingly, asserts the President's power to commit the nation in the absence of Senate ratification. The Senate, equally unsurprisingly, asserts the contrary. The difference is that the Senate has the Constitution on their side.

You want an agreement to be binding? Get it ratified.

# posted by

Brett : 7:58 PM

"The President’s authority to enter into internationally legally binding agreements without Congressional participation or Senate advice and consent dates to the earliest years of the Republic."

etc. So, yes, it is unsurprising that the Executive Branch argues that the President has power to commit the nation in various ways without Senate ratification.

Treaties are but one form of binding international agreement under the Constitution. Anyway, as noted, a ratified treaty is involved here.

Finally, "customary international law" is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. [Wikipedia] This includes the United States, which codifies it in various ways.

# posted by

Joe : 8:22 PM

Again, I cited three sources, and there are others.

People who want to read them can. Best not just latch on a phrase or two though.

# posted by

Joe : 8:25 PM

Eric Posner has two recent posts at his Blog;

http://ericposner.com/

on Trump's actions on the paris Agreement. Part 2 discusses various treaties that the US Executive signed that were not ratified/approved by the Senate in which the US government participated despite the failure of the Senate to act, starting with Pres. Wilson's United Nations. This may be duplicative of what Joe has well pointed out but the narrative form of the relatively short Part 2 might be within Brett's comprehension. In fact, this past Sunday on several political hows, EPA Director Pruit made a similar point, suggesting that the Trump Administration could participate in the Paris Agreement even with Trump's withdrawal.

A cynic might say of Brett: You can lead a Forgotten Trump voter base to water, but you can't make him drink it. (Although a cynic might further say the Forgotten may drink the Trump Kool-Ade.)

# posted by

Shag from Brookline : 10:15 PM

International law is a complex legal area. Brett knows this first hand as he got out of his despair disclosed by him in confessional comments at various blogs by going "International," and recommending it to others in similar despair. That is what might have initially attracted Brett to The Donald, who has gone "International" twice, so far. But The Donald is hunkering down with his America First and Brett is hunkering down with him.

# posted by

Shag from Brookline : 8:06 AM

Joe: Treaties are but one form of binding international agreement under the Constitution.

Treaties are the only form of international law recognized as legally enforceable by the Constitution. The President follows the remainder of international law at his own discretion.

The importance of the Trump withdrawal from the Paris agreement is the bureaucracy can no longer cite the "executive agreement" as the basis for decreeing regulations. The rest was all unenforceable eyewash, which is why so many nations signed on.

# posted by

Bart DePalma : 8:34 AM

SPAM sets forth the libertarian version of volunteerism. Actions being undertaken by some nations (e.g., China, India) voluntarily may result in the need of less eyewash by improving the quality of air. SPAM probably likes the idea of Trump's free rider policy on the environment although SPAM objects to free-riding when it concerns the welfare of poor and the Chrisian response to assist those less able.

Regarding SPAM's response to Joe, it should be pointed out that the precedent of presidents following " ... the remainder of international law" at their discretion is when it benefits America. Decreasing regulations may be a libertarian goal, but consider environmental improvements starting with addressing acid-rain. Keep in mind that SPAM is of the view that The Gilded Age of the late 19th century were America's best day, when the free market permitted polluting for free.

# posted by

Shag from Brookline : 9:07 AM

Shag: Actions being undertaken by some nations (e.g., China, India) voluntarily may result in the need of less eyewash by improving the quality of air.

China and India are increasing their coal power capacity and will continue to do so for years.

Decreasing regulations may be a libertarian goal, but consider environmental improvements starting with addressing acid-rain.

Genuine pollution control and all other laws keeping people from harming others can be enacted by laws of Congress. They do not require an absolute bureaucracy.

# posted by

Bart DePalma : 9:13 AM

SPAM on China and India is old news that fails to address what's going on there. (Side note: Check out Tom Friedman's NYTimes colum today on China's economy growing because of Trump.)

And there is no absolute bureaucracy. Congress has provided for the Administrative State with laws it has passed. (Note that GE has yet to clean up the Hudson River.) Libertarians have no sense of community.

# posted by

Shag from Brookline : 9:43 AM

Treaties are the only form of international law recognized as legally enforceable by the Constitution. The President follows the remainder of international law at his own discretion.

As with past stuff, this is confused, and it is somewhat besides the point since as I noted a treaty (at least one; I don't claim to understand all the nuances here) is involved. Also, the Paris Agreement was specifically set up to be limited reach, particularly to address the rather sad limited will of the U.S. to do things here. John Oliver's piece on the point just to toss it out was pretty good. This underlines the by now totally expected confusion of Trump's actions.

The confused part is that even, which is never a good thing with certain people, granting the second part, executive action (executive agreements specifically or certain agency action etc.) can be "legally enforceable" as noted by the stuff I already referenced etc. Executives might change the rules there, but that still doesn't make things not "legally enforceable" in different ways. Of course, some people use language in Calvinball ways open to change.

"International law" has a broad reach. For instance, Art. I of the Constitution delegates the power to Congress to "define and punish ... Offenses against the Law of Nations." If that isn't "international law," I don't know what is. Said "law" is developed in various ways, not just by treaties. There is also a two century old presumption that U.S. law matches international law (Charming Betsy) and this is in part where customary international law and so forth comes in.

http://www.judicialmonitor.org/archive_winter2011/generalprinciples.html

(just cited for example; if someone don't like the source for some reason, pick something else)

# posted by

Joe : 9:48 AM

Shag:

Here is China's own interpretation of its Paris agreement "obligations:" China has nationally determined its actions by 2030 as follows...to achieve the peaking of carbon dioxide emissions around 2030

http://www4.unfccc.int/ndcregistry/PublishedDocuments/China%20First/China's%20First%20NDC%20Submission.pdf

Side note: Why would anyone bother going to the NY Times op-ed page for any sort of economics information?

Finally, Congress delegating legislative and judicial powers to the bureaucracy is evidence of, not a disproof of, the existence of the absolute bureaucracy (an executive exercising all three powers of government)

# posted by

Bart DePalma : 9:55 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:03 AM

Joe:

Article I grants the Congress plenary legislative power over expressly designated areas of foreign relations. The only exception to this grant of power are treaties, which are negotiated by the President and approved by the Senate. Even then, Congress may withdraw from treaties.

Article II grants the President all executive and CiC power, which is partially checked by Congress's Article I powers. Within those powers, the President may decide to follow customary law at his or her discretion.

Expressio unius est exclusio alterius: to express one thing is to exclude another.

# posted by

Bart DePalma : 10:04 AM