//  6/5/17  //  Commentary

President Donald Trump’s announcement that he will withdraw the U.S. from the Paris Agreement may have dramatic consequences for his administration—but not in the ways he might imagine.  As a legal matter, his announcement is toothless: the U.S can’t withdraw from the Paris Agreement until the next presidential election. Yet his faux withdrawal has generated widespread international contempt, and may generate far more domestic political opposition than any support it gins up among his base. In the end, Trump may absorb a grievous body blow at home and abroad, but walk away empty-handed.

After all the reality-show hoopla accompanying the announcement, you might be forgiven for thinking that the implications of Trump’s decision were many and immediate. In fact, nothing has actually changed.  While the world hung on his every word, Trump’s speech was just an empty political gesture. We are still a party to the Paris Agreement. We will be a party for the rest of Trump’s first term in office (assuming he makes it to the end).

The reason for this is straightforward: the Agreement prevents parties from withdrawing for three years after it takes effect and then another year after a party announces it is withdrawing. This means that until the next presidential election, we are obliged (1) to work to cut our emissions by 26-28 percent by 2025; (2) to make financial contributions to developing countries most affected by climate change; and (3) to provide a regular accounting of our greenhouse gas emissions by source. 

Trump has made abundantly clear—long before (and apart from) his grand Paris Agreement announcement—that he will not honor these obligations, especially the first two. He has repudiated virtually every element of the “nationally determined contribution” submitted by the Obama Administration, including the Clean Power Plan, stringent automobile standards, and limitations on methane emissions. He has produced a budget that provides no money to developing countries affected by climate change, despite the Obama Administration’s commitment of $3 billion ($1 billion of which we have already paid).  Indeed, Trump has gone even further to prove his bad faith, zeroing out the U.S. contribution to a fund that pays for international climate negotiations.  And, of course, he has proposed slashing budgets for climate staff across every department in the federal government, including the State Department, and eliminating virtually all research and development funds for clean energy. 

We knew all of this before Trump’s announcement that the U.S. would withdraw from the Paris Agreement. There is little more that Trump could have done to make our non-compliance with the Agreement clear. And since Trump cannot formally exercise the right to withdraw for several years, we are in exactly the same position today as we were yesterday.

Indeed, Trump has left advocates for robust climate policy in the strongest possible circumstances given his opposition. We remain in the Paris Agreement, and yet the widespread view is that we will withdraw. The international community, and many domestic voters, are baffled and enraged.

Ultimately, Trump’s need to turn his announcement into a circus has focused the world on just how draconian and senseless Trump’s position is on climate change. That is especially true (and ironic) given the voluntary nature of the U.S.’s commitment. The Paris Agreement provides no meaningful mechanism to punish countries that fail to live up to their obligations and commitments. The only real recourse is political. And by pulling out, Trump may have managed to galvanize political opposition far more ferocious (and efficacious) than had he announced that he would keep the U.S. in the Agreement while simply failing to respect our obligations under it.  

Ann Carlson is the Shirley Shapiro Professor of Environmental Law at UCLA School of Law, where she directs the Emmett Institute on Climate Change and the Environment

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform

6/21/20  //  Commentary

On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP