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Climate change is a perfect example of a problem which, to those intent on saving the world, cannot be managed within a constitutional order. Whatever may be happening to the climate, keeping faith with the Founders’ gift of ordered liberty is our best hope of addressing it…

The decision by President Trump to withdraw the United States from the Paris Climate Agreement was a politically courageous and historically laudable act. It affirms our sovereignty, promotes our national interest and, despite the lamentations of the climatistas, advances the well-being of our citizens. For this nation to strike an independent course does not jeopardize the health of the planet nor the momentum toward a more sustainable way of life. A large measure of American enterprise informed by environmental sensitivities will continue to benefit the larger world of which we are a part. The movement in this country toward a more environmentally conscious way of life need not bear the weight of the regulation, litigation, and bureaucratic oppression that would attend continued adherence to this agreement. Paris paved a road for massive government and increasingly arbitrary executive intervention in the economy and society. Inefficiency and injustice will be among its real effects with little effect on the climate. The disciples of central planning are obviously devastated, but those who seek truly sustainable environmental progress are rightly well pleased.

The president’s decision merits applause, but the fact that American participation in this theater of virtue was determined by executive orders for and against is lamentable. It would have been preferable if President Trump submitted the agreement to the Senate and, thereby, reaffirmed constitutional discipline and furthered the debate on climate science and public policy. Both of these executive actions give more evidence of a country on a tragically wayward journey toward presidential government and a domestic variety of authoritarianism. Constant foreign adventures, an endlessly expansive administrative state, and an increasingly politicized bureaucracy, not to mention judiciary, are wearing away the foundations of the republic. Our government is less and less representative as political programs, like those addressing the environment, are realized through presidential orders and bureaucratic rule-making. Executive leadership is necessary in addressing great matters of state; presidential fiat is not. “So be it” is the language of a monarchy, not a republic, but it is a vernacular we have come to understand all too well in recent years. Indeed, the most persistent threat to the well-being of the American people is not what was once known as global warming, but the inexorable deterioration of constitutional government. If more and more of us find our devotion to certain causes is greater than our commitment to the order of operations mandated by the Constitution, we face a still more fractured and troubled future.

President Obama said the Paris Accord “represents the best chance we have to save the one planet we’ve got. I believe this agreement can be a turning point for the world.” The last time we signed up for something so ambitious was the Kellogg-Briand Pact which outlawed war—and probably speaks to how effective this climate agreement will be. Even so, the Senate did get to vote on that fantasy, as it was considered necessary for most of our history that great national commitments face a constitutional reckoning. The division of power in our political system is reconciled in an agreement between the branches of government on specific matters detailed in laws and treaties. As for Paris, it cannot be honestly reasoned that such an ambitious global agreement with implications for our sovereignty, administrative law and public policy should not have been submitted to the Senate for consideration and consent. The charter of our nation was written out in distress after a war fought over issues that have bedeviled mankind from time immemorial: Authority, justice, and liberty. It is not overwhelmed by large questions; indeed, the careful settlement of great questions is the main purpose of our basic law. Nevertheless, the climate changers believe that extreme circumstances require exceptional actions by extraordinary people. On the issue of climate, constitutional niceties are irrelevant, even dangerous.

Progressives have long feigned a commitment to democratic and legal processes, but only as a welcome affirmation of their course to a better future. This invariably gives the administrative state more power and its advocates more money. The forms of legislative consent are welcome, but not necessary in exigent circumstances which seem to occur ever more frequently. Executive agency and judicial decisions move the agenda forward more efficiently, in any case. As the fourth estate generally shares this progressive ideology, the radical nature of executive government barely merits an objection. The entire environmental agenda of the Obama administration is a case study in unaccountable executive governance; witness the extraordinary reach of the Clean Power Plan and Waters of the United States Rule. These are not the mandates of any Congress and the exercise of its prerogative would be considered redundant in many precincts, not least the Obama White House. “I think it’s hard to take seriously,” press secretary Josh Earnest said with routine condescension, “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.” One wonders why the Senate should get to vote on anything of consequence if they might render a judgment contrary to a presidential initiative? The deplorables surely must not be allowed to interfere with great work of the governing class. The arrival of the Trump administration may allow for some policy remedies, but the problem of a constitutionally presumptuous and administratively powerful executive is not going away.

Despite the claims of the producers, the climate theatre of Paris did not entirely satisfy the audience. James Hansen, perhaps the original climate alarmist, observed that the Paris agreement was “really a total fraud.”[*] He spoke a strange truth that both green ideologues and those with a more measured or skeptical view of the matter could acknowledge. From a constitutional perspective, it was an obvious subterfuge. The accord is perpetual in nature, it is global in its reach, and it calls forth substantial commitments, however loose in nature, from each signatory. The entire agreement is meant to alter fundamentally the course of our national life and compromise our wealth in natural resources. More specifically, the basic obligation of each signatory is rooted in the “nationally determined contributions” which detail planned reductions in greenhouse gas emissions. These are meant to be “ambitious” and they are required to be updated every five years, so as to “represent a progression over time.” Presumably, these contributions would be made over the signature of the president without any congressional approval. While these apparently good intentions may not be subject to the force of international law just yet, there is good reason to be concerned with their immediate effect in our domestic legal and political system. Presidential indications of intent will inevitably have profound effects in administrative law, the federal courts, and elsewhere. They will surely register in our body politic as more important than a “like” on Facebook. When a program of unlimited executive action like this is considered reasonable or normal, our constitutional sensibility has been terribly compromised. It certainly portends only more difficulties for the country in other ways in times to come.

Our body politic has long been afflicted by a fanatical cult of the president—the imperial presidency, as Arthur Schlesinger called it—which has led to an endless aggrandizement of power in the executive branch. It is a pernicious phenomenon at odds with liberty that grows more and more forcefully against the protocols of the Constitution. The righteous believers in many causes, both foreign and domestic, see our plan of government as anachronistic and ill-suited to address the great issues of the day. Given the catastrophic potential of so many problems besetting the world, they believe the fetters of constitutional restraint that bind the president must be considered conditional. Climate change is a perfect example of a problem which, to those intent on saving the world, cannot be managed within a constitutional order. This belief betrays an ignorance of history and an indifference to the long-term consequences on both the political system and social cohesion.

Politics is always about power, to a greater or lesser extent, but there is little recognition today of the value in the procedural discipline and requirement for cooperation among the branches of government demanded by the Constitution.  Reasoned argument, persuasion and ultimately compromise—those things cultivated by the design of the federal government—are less and less in evidence, and they are scarce in politics to begin with. Issues like climate change, moreover, cannot even be discussed in some quarters. Merely to ask the question about the degree to which human activity may influence the climate is to invite the kind of opprobrium formerly reserved for holocaust deniers. The stifling of debate yields only division, suspicion and an increasingly zero-sum politics. And with that has come increasingly alienation among our citizens and the harbingers of a more violent politics.

The increasingly regular exceptions to constitutional discipline weaken those essential constraints on concentrated power and public passions that have preserved this extraordinary experiment in self-governance well into its third century. Good results reached around our basic law only clear a path for a debilitating compromise of our liberty. While the concept of liberty might seem quaint to the commentariat and the leaders of progressive society, it is the necessary circumstance for creativity and genius to comprehend our national problems and make possible their solution. Whatever may be happening to the climate, keeping faith with the Founders’ gift of ordered liberty is our best hope of addressing it.

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[*] Hansen, James “Climate Scientist James Hansen Warns World is on Wrong Track to Prevent Runaway Global Warming” (Democracy Now, December 4, 2015).

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1 reply to this post
  1. It’s interesting Mr. Gallagher mentions the Kellogg-Briand Pact of the 1920’s–as effective ending war as the Paris Climate Agreement is in vanquishing environmental problems. A more practical way to lessen the chance of war was the agreements that came from the Washington Naval Conference in 1922 that limited capital ship tonnage in the major navies of the time. Those agreements worked in the political and economic conditions of the 1920s but collapsed after the Great Depression destroyed those conditions in the 1930s. Working to improve the climate is a noble goal, but the practitioners must be held to practical standards, and that is accomplished in a system of ordered liberty.

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