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Presidential Power

Readings and resources concerning presidential power.

Assigned Reading: International Policy & the Paris Agreement (Class #10, Feb. 10)

Prof. MJ Durkee will be our guest today.  She will be talking about the Paris Agreement, which involves climate change.  Here is the reading she has assigned for you. 

What is the Paris Agreement?

These two short readings outline key terms of the Paris Agreement:

Is it binding?

First review the Treaty clause, in Article II, Section 2 of the Constitution, which defines "treaties" under U.S. law. For the definition of "treaties" under international law, see Article 2.1(a) of the Vienna Convention on the Law of Treaties (1969). Consider how these definitions differ.

For an explanation of the different ways the Constitution and Congress empower the Executive to make international law, please review the following two articles:

How do these rules apply to the Paris Agreement?

Can Trump withdraw?

Postscript (Optional)

Additional Resources (Not Assigned)

Prof. Durkee recommends the following, but they are not assigned.

  • American Society of International Law, International Law and the Trump Administration: A Live Online Briefing, Feb. 1, 2017. Features John Bellinger, who was Legal Advisor in the Department of State and the National Security Council during the George W. Bush administration, and Catherine Amirfar who was the Counselor on International Law to the Legal Adviser during the Obama administration.

The video briefing reviews questions about the continuity of U.S. commitments to various treaties and international agreements now in place, including the Iran nuclear agreement (the Joint Comprehensive Plan of Action), the North American Free Trade Agreement (NAFTA), the North Atlantic (NATO) Treaty, and the Paris Agreement on global climate change, and, more broadly, about what role the United States will play over the next four years in advancing and maintaining the international legal architecture that successive administrations put in place.


Assigned Reading: Domestic Policy & the Clean Power Plan (Class #11, Feb. 13)

On Monday, Feb. 13, we will continue our discussion of climate change policy -- this time considering how domestic efforts to curb greenhouse gas (GHG) emissions could be impacted by a change in Presidential administration.  A major cornerstone of that domestic regulation is the Clean Power Plan, which was adopted in August 2015 by the Obama EPA under authority of the Clean Air Act.  That litigation is pending in the D.C. Circuit, which heard oral arguments to an en banc panel in October 2016.  While we await that important decision, keep in mind the underlying narrative of domestic climate policy -- namely Congressional inaction.  That will be a theme of our discussion as we consider the ways that the EPA has turned to the Clean Air Act to regulate GHG emissions, the ways that litigants have turned to the courts asserting common law theories of nuisance against major GHG emitters, and the impact litigation by a class of children who have asserted (a recently upheld) fundamental due process right to a stable climate.


For a reminder of why coming together to address climate change is a bigger challenge than simply explaining the science or implementing regulations; of why calls for collective action are generally complicated in a divided culture: 

For a basic introduction to the Clean Power Plan, pending litigation, and how President Trump could rollback climate initiatives:
For a sense of other impact litigation strategies that have been used to prod government action or market responses to climate change, please read: 
  • American Electric Power Co., Inc. v. Connecticut, 564 U.S. 410 (2011). This opinion provides some background on the regulatory history following Mass v. EPA and leading up to the Clean Power Plan (pp. 10-11).  In reading this, pay particular attention to the Court's explanation (p. 12) of the circumstances under which a common law theory might become live again.
  • Juliana v. United States (D. Ore. Nov. 10, 2016). (Judge Aiken)gon). Though you might find the portions of the opinion dealing with political question doctrine and standing useful, I am only assigning:
    • pp. 1-6 (intro and background);
    • pp. 28-36 (discussion of Due Process claim asserting "right to climate system capable of sustaining human life"); and
    • pp. 48-54 (discussion of whether the public trust claim is displaced by federal statutory law and concluding, after discussing AEP v. Connecticut, that it does not).
Finally, for a reminder that the States can independently act to reduce GHG emissions, read: 


Optional Reading:

For President Obama's perspective on the momentum in the private markets for a clean energy economy, see this post-election article: