//  5/17/17  //  Commentary

The Trump Administration will apparently decide soon whether to keep the United States as a party to the Paris Agreement.  Although I understand why so many observers have argued that the U.S. should remain in Paris, I have already expressed my view that remaining in Paris is at best a symbolic gesture.  At worst, I fear that Trump will gain valuable public credibility – both globally and domestically – by using that fairly insubstantial gesture as a fig leaf to obfuscate the tremendous damage his policies are doing to overall climate progress.  If he withdraws, by contrast, his actions may galvanize a public response far more powerful and influential than any small gain the global community will experience if the U.S. remains in.  As a result, the U.S. might be better off if Trump withdraws.

Most of the arguments in favor of remaining in Paris are really just arguments that climate change is a hugely important issue that requires urgent action and U.S. leadership (see, for example, the arguments of a number of large U.S. corporations and a recent Washington Post editorial by Obama climate envoy Todd Stern).  I wholeheartedly agree that climate change is hugely important and needs U.S. leadership.

But the Trump Administration has made amply clear that it disagrees with this fundamental proposition. It is rolling back climate regulations, proposing funding cuts that decimate EPA and the Green Climate Fund, and cutting the entire U.S. contribution to the international climate negotiations budget.  Over the last week, the Administration has fired a dozen scientific advisors to EPA and systematically dismantled EPA websites that contain information about climate change.

What, exactly, do we gain if Trump stays in? Ivanka Trump and Jared Kushner will feel empowered.  Diplomatically, however, it’s hard to see how remaining in the agreement improves our global standing.  By rolling back our commitments under Paris even while remaining in, as many observers are urging, the U.S. would have zero credibility to urge other countries to maintain or strengthen their commitment to cutting greenhouse gases.  In or out, Trump has made clear that climate change is not a U.S. priority.  So what does a seat at the table provide us? At least one commentator has argued that the U.S. might use its seat at the table under the Trump regime to weaken transparency rules.  And given the proposed budget cuts at the State Department, our representation would be skeletal at best, as it is this week in Bonn, where we have 7 U.S. representatives while Algeria has 14.

I should be clear, however, that my argument does not extend to withdrawing from the overarching treaty that governs climate change, the U.N. Framework Convention on Climate Change.  The UNFCC was enacted in 1992 and ratified by the U.S. Senate the same year. It is the treaty under which the Paris Agreement was negotiated.  Unlike the UNFCC, the Paris Agreement was neither submitted to nor ratified by the U.S. Senate. Instead, the Obama Administration joined it under its executive authority.  If Trump attempts to withdraw the U.S. from the UNFCC entirely (something that would raise complex legal questions about whether he needs Senate agreement to do so), then once he leaves office, the U.S. would need to rejoin the UNFCC and the Senate would need to re-ratify it. It is not at all clear that the Senate would do so since treaty ratification takes a 2/3s vote. If, by contrast, Trump withdraws only from Paris, the U.S. can likely re-join the agreement by a relatively straightforward process known as accession.  Unfortunately, withdrawal from the UNFCC takes only a year whereas withdrawal from Paris takes three years.  A third alternative is that Trump could simply announce his attention not to comply with the commitments the Obama Administration made under Paris but avoid formally withdrawing from either treaty.

If Trump chooses to withdraw from Paris, either formally or not, imagine the public response.  Our allies will be furious.  Domestic reaction from environmentalists, many in the business community, Democrats and even some prominent Republicans will be fierce and negative.  Voters who care about climate change will be galvanized.  The pressure to acknowledge and actually do something about climate change will increase. 

If we remain in the agreement, by contrast, the international community and domestic constituencies will breathe a huge sigh of relief. And Trump will continue to decimate policies to reduce emissions and funding for climate and global assistance while using the fig leaf of Paris to cover his actions.

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

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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