    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                     EXECUTIVE OVERREACH IN FOREIGN AFFAIRS

    =======================================================================

                                     HEARING

                                   BEFORE THE

                         EXECUTIVE OVERREACH TASK FORCE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 12, 2016

                                   __________

                               Serial No. 114-75

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

          Available via the World Wide Web: http://judiciary.house.gov

                                   ___________

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               Shelley Husband, Chief of Staff & General Counsel
            Perry Apelbaum, Minority Staff Director & Chief Counsel

                                     ------

                         Executive Overreach Task Force

                           STEVE KING, Iowa, Chairman

    F. JAMES SENSENBRENNER, Jr.,         STEVE COHEN, Tennessee
    Wisconsin                            JERROLD NADLER, New York
    DARRELL E. ISSA, California          ZOE LOFGREN, California
    LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
    JIM JORDAN, Ohio                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TED POE, Texas                         Georgia
    JASON CHAFFETZ, Utah                 JUDY CHU, California
    TREY GOWDY, South Carolina           TED DEUTCH, Florida
    RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana
    RON DeSANTIS, Florida                SCOTT PETERS, California
    KEN BUCK, Colorado
    MIKE BISHOP, Michigan

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                               C O N T E N T S

                                  ----------

                                  MAY 12, 2016

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve King, a Representative in Congress from the
      State of Iowa, and Chairman, Executive Overreach Task Force....     1
    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Ranking Member, Executive Overreach
      Task Force.....................................................    10
    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary    11
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................    13

                                   WITNESSES

    Eugene Kontorovich, Professor of Law, Northwestern University
      School of Law
      Oral Testimony.................................................    14
      Prepared Statement.............................................    17
    Stephen I. Vladeck, Professor of Law, American University
      Washington College of Law
      Oral Testimony.................................................    33
      Prepared Statement.............................................    35
    Steven Groves, Leader of the Heritage Foundation's Freedom
      Project
      Oral Testimony.................................................    43
      Prepared Statement.............................................    45

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared statement of the Honorable Steve Cohen, a Representative
      in Congress from the State of Tennessee, and Ranking Member,
      Executive Overreach Task Force.................................     4

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared statement of the Honorable Sheila Jackson Lee, a
      Representative in Congress from the State of Texas, and Member,
      Executive Overreach Task Force.................................    71

                              EXECUTIVE OVERREACH
                               IN FOREIGN AFFAIRS

                                  ----------

                             THURSDAY, MAY 12, 2016

                            House of Representatives

                         Executive Overreach Task Force

                           Committee on the Judiciary

                                Washington, DC.

        The Task Force met, pursuant to call, at 10:11 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Steve
    King (Chairman of the Task Force) presiding.
        Present: Representatives King, Goodlatte, Issa, Gohmert,
    Jordan, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen,
    Conyers, Jackson Lee, and Johnson.
        Staff Present: (Majority) Paul Taylor, Chief Counsel;
    Zachary Somers, Parliamentarian & General Counsel, Committee on
    the Judiciary; Tricia White, Clerk; (Minority) James J. Park,
    Minority Counsel; and Veronica Eligan, Professional Staff
    Member.
        Mr. King. The Executive Overreach Task Force will come to
    order. And, without objection, the Chair is authorized to
    declare a recess of the Task Force at any time. I'll recognize
    myself for opening statement.
        Today's hearing will focus on executive overreach in
    foreign affairs. The Constitution grants the President as
    Commander in Chief clear powers in foreign affairs. However,
    the Constitution also provides for a check on those powers by,
    for example, requiring that the Senate approval international
    treaties and that Congress appropriate all funds needed to
    foreign military engagements.
        I'll focus my remarks today on two troubling developments
    as it relates to those checks the Constitution grants to the
    Congress and not the President. Regarding the Senate's treaty
    ratification powers in Paris late last year, the Obama
    administration also took part in the 21st Conference of Parties
    to the United Nations Framework Convention on Climate Change.
        Senior Administration officials, including Secretary of
    State John Kerry, Environmental Protection Agency Administrator
    Gina McCarthy, and Secretary of Energy Ernest Moniz--who
    visited Ames, Iowa, just this past week, and I thank him for
    that--negotiated the final terms of a new climate change pact,
    the so-called Paris Agreement. The agreement involves the
    commitments that will affect every part of the U.S. And the
    Obama administration intends to meet those commitments by
    requiring changes to State law. These Paris Agreement criteria
    and others listed by the State Department itself in what's
    called the Circular 175 procedure show clearly that the Paris
    Agreement is a treaty that requires the approval the Senate,
    under Article II, Section 2, Clause 2, of the Constitution,
    which provides the President shall have power by and with the
    advice and consent of the Senate to make treaties provided two-
    thirds of the Senators present concur.
        Despite this, President Obama has made clear through his
    spokesperson that he has no intention of consulting or
    including either the Senate or anyone in Congress in any aspect
    of the international treaty. On March 31, 2015, White House
    spokesman Josh Earnest was asked at a press conference briefing
    whether Congress has the right to approve the Paris Agreement.
    Mr. Earnest responded, speaking for the President, as follows,
    ''I think it's hard to take seriously 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.''
        Well, think of that for a moment. The chief spokesperson
    said that, simply because Members of Congress disagree with the
    President's environmental policies, the constitutional
    requirement that a treaty be submitted to the Senate for
    approval is negated. That's outrageous, and it's unlawful. And
    it's a clear example of the executive overreach in the area of
    foreign affairs.
        Regarding the President's powers in war, the President does
    have much greater constitutional authority in the areas of
    military affairs than he does in domestic affairs. Yet, even in
    the case of war, the President's powers are not unlimited. One
    clear limitation on that power is Congress' constitutional
    authority to appropriate all Federal funds for use on anything,
    including war. Yet President Obama has evaded Congress' control
    over military appropriations, as many Presidents have, by using
    accounting gimmicks to move funds Congress approved for one
    purpose to another, as was done to pay for the U.S.
    intervention in Libya.
        Today, Congress' power of the purse is weakened because the
    President has many ways to evade Congress' control over
    military appropriations, namely accounting procedures to move
    funds Congress approved for one purpose to another purpose
    Congress has not approved.
        In the case of the intervention in Libya, President Obama
    paid for that conflict entirely out of funds reallocated from
    other Defense Department accounts. Harold Koh, President
    Obama's own former legal adviser to the Department of State,
    has also written that the President has developed over time a
    whole range of devices to exploit spending loopholes in the
    appropriation process. When Congress grants the President
    statutory drawdown authority, he may withdraw certain funds
    simply by determining that such withdrawals are vital to the
    security of the United States. Similar statutory provisions
    allow the President access to special and contingency funds
    based upon nebulous findings that the use of those funds is
    important to the security of the United States or to the
    national interest.
        When given statutory transfer and reprogramming authority,
    the President has transferred--the President transfers to one
    appropriations account funds initially appropriated for another
    or may reprogram appropriated funds within a single
    appropriation account, often without specific statutory
    authority. This is yet another example of executive overreach,
    albeit it one that Congress has been complicit to some extent.
    Nevertheless, it is an issue that this Task Force should
    consider.
        And I also am thinking about the Iranian treaty agreement,
    and I expect there will be some remarks with regard to that a
    little bit later today. And I would point out that Congress has
    controlled funds with regard to war and done so effectively.
    And if one would read back through the appropriations debate
    and language that shut off all funds to support the Vietnam
    war: In the land of Vietnam and the seas adjacent to it, the
    skies over it, or the countries adjacent to it, or the skies
    over them, no funds would be used to conduct the Vietnam war.
    And it effectively, I'll say, de facto took ammunition off the
    docks at Da Nang by an act of Congress by using the
    appropriations language to shut down a war. So that's an
    example of how a President did honor the wishes of Congress,
    and we're going to want to talk today about that, but in the
    meantime, I look forward to hearing from all of our witnesses
    here today on these and many other issues.
        And I would recognize the Ranking Member, Mr. Cohen from
    Tennessee, for his opening statement.
        Mr. Cohen. Thank you, Mr. Chair. I would first like to
    submit for the record my prepared marks, which I will not refer
    to in my remarks, for entry into the record.
        Mr. King. Without objection so ordered.
        [The prepared statement of Mr. Cohen follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
                                   __________

        Mr. Cohen. Thank you. I was a little bit late today, for I
    was at the Trumpo show. And there was a gigantic crowd of
    reporters and television and protesters over at the
    Republican--wherever you all meet, at one of those places. I
    saw Vice President Issa over there. And he was walking down the
    street looking very Vice Presidential. He was ready at any
    minute to step in.
        Mr. Issa. Oh, no. You were the one in the Cadillac driving
    by.
        Mr. Cohen. I thought it was Scherzer. There were so many
    people; I thought it was something to do with Scherzer. I mean,
    he had 20 strikeouts, but I found out it was Trump. Scherzer,
    yeah, unbelievable last night. But you think you have a problem
    with executive overreach now; if he becomes President, you have
    combover, overreach. You have got all kinds of overs and no
    unders.
        Mr. Issa. Does the gentleman pretend to know something
    about hair? Is there a level of expertise being asserted here
    in Halls of Congress?
        Mr. Cohen. I have to admit I have hair envy. There's no
    question about it.
        But if you think you've got problems with President Obama,
    if there's a President Trump, Congress will hardly exist
    because it will be huge and he'll do great things and he won't
    need anybody's advice or consent because he does great things
    and he has got great people. And, you know, we will truly be
    like we are today. Here we are pretending to do government, and
    nobody's really here. And everybody's watching the show, and
    we're not the show. And it's all going to be a show.
        And you think, you know, an executive, a businessman, a
    billionaire: he's not going to care about Congress because he
    does it all. And if we suggest anything, that's he's
    overreaching his power, he'll fire us, so there will be nothing
    happening.
        But it's a wonderful story that's about to happen on the
    Republican side. It will be a story that people will look at
    for centuries. And children in Eastern Europe are going to know
    they can be born there in Eastern Europe to parents who are
    economically deprived, and they can become a model and turn out
    to be First Lady of the United States. And it's going to give
    children in Eastern Europe something to look forward to, and it
    is going to incentivize them and give them hope. And it's going
    to be a great day for America. I can see it coming.
        But as far as overreach, you're going to have overreach. It
    is going to make Obama look like the person that Mr. King would
    like to have President, somebody who is just strictly limited
    to the confines of Article--is it II? II, yeah--and doesn't do
    anything at all that infringes on Article I. So, with that, I--
    --
        Mr. Issa. Will the gentleman yield?
        Mr. Cohen. The gentleman will yield to the Vice President.
        Mr. Issa. I thank the gentleman, and I will remember that.
        Mr. Cohen. Don't tell Mr. Corker I called you Vice
    President.
        Mr. Issa. The case we're making here today hopefully plays
    right into what you just said, that if we anticipate that there
    have been or measure that there have before overreaches under
    this Administration and anticipate under the next
    Administration, then wouldn't the gentleman agree that
    legislation that specifically empowers the House to be a more
    effective balancing act over executive overreach would be
    paramount right now before the great hair revolution begins?
        Mr. Cohen. I don't disagree with you. In a lot of ways, as
    a lifetime legislator, 24 years in the State and now 10, 9-plus
    here, I agree the legislature should have more power. I
    disagreed that President Obama has overreached on climate
    change, which does exist, and/or on the Iran nuclear agreement,
    which keeps us safer from the destruction of the planet and
    mankind. And Mr. Bellinger and Mr. Goldsmith, two of the legal
    minds in the Bush administration who I have great regard for,
    concur on that, that these were authorized and appropriate. But
    I do think there are problems that have occurred in other areas
    where the executive has gone further than they should in doing
    things that were legislative prerogatives. And I think that, if
    by some chance Mr. Trump is the President, gone, it's over.
        Mr. Issa. Well, I look forward to working with the
    gentleman to pass that legislation under the current
    Administration so that all future Congresses will enjoy that
    protection against overreach that the gentleman agrees can
    occur and has occurred and that this special working group is
    all about.
        Mr. Cohen. Would this be kind of like passing a bill that
    is like putting an alarm on the government that will go off and
    let us know when somebody is trying to break the rules, and an
    alarm goes off and warns us?
        Mr. Issa. I hope it is both an alarm and an auto shutdown
    capability.
        Mr. Cohen. Auto shutdown.
        Mr. Issa. Thank you.
        Mr. Cohen. I yield back.
        Mr. King. The gentleman's time has expired.
        And the Chair now recognizes the Chairman of the full
    Committee, Mr. Goodlatte from Virginia, for his opening
    statement.
        Mr. Goodlatte. Well, thank you, Chairman King, for
    convening this third hearing of the Task Force on Executive
    Overreach. And I've been very interested to hear the dialogue
    I've just heard and especially the comments of the Ranking
    Member, because I look forward to the transition that will take
    place when we have a bipartisan effort to halt executive
    overreach, because it occurs in every Administration of both
    parties. It's occurring right now. And the point isn't whether
    you believe in a particular point of view about climate change
    or whether you believe in the necessity of doing something
    about nuclear weapons in Iran, we all agree on the need to do
    some things, not necessarily do the same things. The question
    is, under the United States Constitution, who has the authority
    to do it? And there we have a serious difference of opinion.
        I have to tell you: one of the lowest days in the time that
    I have served in Congress was the day that President Obama came
    to the House to give his State of the Union address before a
    Joint Session of the Congress, and at the end of his long
    laundry list of things that he wanted Congress to do, that
    every President has of either party--they always have a list of
    things they want done--at the end of his, he said, ``And if you
    don't do it, I will.'' By what authority under the United
    States Constitution? And the really--the reason why it was such
    a low day for me was that so many Members of your party stood
    up and gave a standing ovation to the President when he said:
    I'm going to take your power, the people's power in the elected
    Representatives of the Congress, and I'm going to use them for
    other purposes.
        Mr. Chairman, could I have order?
        Mr. King. Yes, the Committee will come to order.
        And I recognize again the gentleman from Virginia.
        Mr. Goodlatte. Thank you, Mr. Chairman. I will focus my
    remarks on the recent deal the President struck with Iran on
    its nuclear capability, a deal that primarily meets Iran's
    goals in that sanctions are lifted, nuclear research and
    development continues, and America's safety is compromised, but
    doesn't include any requirements for inspections that can
    verify compliance anytime and anywhere. Amazingly, among the
    deal's many flaws is an end to a ban prohibiting Iranians from
    many coming to the U.S. to study nuclear science and nuclear
    engineering at American universities. Knowledge obtained in the
    programs is instrumental in being able to design and build
    nuclear bombs.
        President Obama made these gutting concessions even as a
    senior State Department official testified before Congress that
    deception is part of Iran's DNA. And Iran's actions continue to
    prove that it can't be trusted.
        With that background in mind, President Obama's agreement
    with Iran is being unlawfully implemented because the
    Administration failed to provide Congress with the documents
    required under the Iran nuclear agreement Review Act of 2015.
    Under that act, the agreement materials required to be
    submitted by the President to Congress ``include any additional
    materials related thereto, including annexes, appendices,
    codicils, side agreements, implementing materials, documents
    and guidance, technical or other understandings, and any
    related agreements, whether entered into or implemented prior
    to the agreement or to be entered into or implemented in the
    future.'' Because the President has not transmitted to Congress
    various side deals related to the agreement, including side
    deals between the International Atomic Energy Agency and Iran,
    he can't have Congress' approval of the agreement as required
    by the Iran nuclear agreement Review Act, yet the President
    pushes on, unlawfully, with his doomed agreement that can't
    protect Americans from a nuclear Iran.
        President Obama is, unfortunately, no stranger to bad
    deals. Two years ago, this Administration negotiated with the
    Taliban for release of Sergeant Bowe Bergdahl, a deserter who
    awaits court-marshal. Despite having a policy of not
    negotiating with terrorists, the Administration irresponsibly
    exchanged Sergeant Bowe Bergdahl for five Taliban terrorists
    detained at Guantanamo Bay. By doing so, the Administration has
    emboldened all terrorist organizations and has created the risk
    that five terrorists will reenter the field of battle.
        Making matters even worse, the President, again, violated
    Federal law in the process, namely the Federal law requiring 30
    days' notice to Congress before the release of any terrorist
    prisoners from Guantanamo Bay. The nonpartisan Government
    Accountability Office concluded that was a violation of a
    ``clear and unambiguous law.'' The GAO has concluded the
    President's actions constituted a violation of the
    Antideficiency Act, which prohibits Federal agencies from
    spending funds in excess of or in advance of amounts that are
    legally available.
        The Constitution does not and cannot require that
    Presidents make sound decisions in office, but it does require
    that Presidents obey the law. The President is sworn to do as
    much as are we as Members of Congress.
        I look forward to hearing from today's witnesses.
        Mr. King. I thank you, Mr. Chairman.
        And the Chair would now recognize the Ranking Member of the
    full Committee, Mr. Conyers, from the rebuilding city of
    Detroit.
        Mr. Conyers. Thank you, Mr. Chairman.
        I welcome the witnesses.
        And to my colleagues, the issue of appropriate roles of the
    Congress and the President is a subject worthy of a genuinely
    substantive discussion. And I think it's a very important
    discussion that's involved in the hearing today. For instance,
    we could consider whether our Nation's current military
    operations against the Islamic State of Iraq and Syria have
    been properly authorized by Congress. I won't go into detail,
    but I'm involved in research on that subject at the present
    moment.
        Unfortunately, today's hearings may be turning into an
    attack against the current Administration. Let's start off with
    this proposition: neither the Iran nuclear agreement nor the
    Paris climate change agreement is a treaty within the meaning
    of the Constitution's Treaty Clause that requires Senate
    consent.
        The Paris climate change agreement, for example, contains
    no mandatory quantitative emission standards or reductions.
    Rather, it is a strong exhortation that parties take concrete,
    transparent, but ultimately self-directed steps to reduce
    greenhouse gas emissions. Contrary to the assertions of some,
    this agreement does not contain legally binding requirements,
    nor does it purport to grant new authority to the President to
    meet any such requirements.
        In short, it doesn't meet the traditional criteria of a
    treaty within the meaning of the Treaty Clause. And the Iran
    agreement was a set of political commitments rather than
    legally binding requirements. Thus, it also was not
    constitutionally required to be subject to Senate approval.
        In addition, both agreements are consistent with existing
    law of the United States of America. For instance, the statutes
    imposing sanctions on Iran for its nuclear weapons program also
    give the President the discretion to remove these sanctions
    should certain criteria be met. And the Paris climate agreement
    was reached pursuant to a 1992 climate change treaty that the
    Senate had already ratified. In other words, the Paris
    Agreement is consistent with the obligations created by a
    treaty that, under the Supremacy Clause, was already the law of
    the land.
        Now, as professor Vladeck correctly notes, arguments
    questioning the legality of these agreements are part of an
    ongoing attempt to paint policy disputes as constitutional
    matters. Whatever one thinks about the merits of either the
    Iran nuclear agreement or the Paris climate agreement, the
    Constitution and the historical practice make clear that the
    President was within his authority to enter into them. At any
    rate, Congress has already had the opportunity to make its
    voice heard.
        With respect to the Iran nuclear agreement, Congress had
    the chance to disapprove the agreement, but opponents of the
    agreement failed to obtain the necessary votes to prevent the
    agreement from taking effect. And as I noted and conclude, the
    Senate long ago ratified the climate change treaty pursuant to
    which the Paris Agreement was entered. So rather than sparking
    enlightened discussion, today's hearing I fear may be a string
    of partisan exercises by the Task Force, but I think it's
    important that we move on, and I thank our witnesses for
    appearing today. I look forward to hearing their testimony, and
    I thank the Chair.
        Mr. King. I thank the gentleman from Michigan for his
    opening statement. And I'll now introduce the witnesses. Our
    first witness is Eugene Kontorovich, professor of law at
    Northwestern Law School.
        Our second witness, welcoming him back again, is Stephen
    Vladeck, professor of law at American University and Washington
    College of Law.
        Our third witness is Steven Groves, leader of the Heritage
    Foundation's Freedom Project.
        We welcome you all here today and welcome your testimony.
        Each of the witnesses' written statements will be entered
    into the record in its entirety. I ask that each witness
    summarize his or her testimony in 5 minutes or less. To help
    you stay within that time, there is a timing light in front of
    you, and that light switches from green to yellow, indicating
    you have 1 minute to conclude your testimony. When the light
    turns red, it indicates it is time to wrap it up.
        Before I recognize the witnesses, it is the tradition of
    the Task Force that they be sworn in.
        So, to the witnesses, please stand and raise your right
    hand. Do you solemnly swear that the testimony that you are
    about to give will be the truth, the whole truth, and nothing
    but the truth so help you God?
        Thank you. You may be seated.
        Let the record reflect that the witnesses answered in the
    affirmative.
        I now recognize our first witness, Mr. Kontorovich. Please
    turn on your microphone before speaking, and you're recognized
    for 5 minutes, Mr. Kontorovich. Thank you.

    TESTIMONY OF EUGENE KONTOROVICH, PROFESSOR OF LAW, NORTHWESTERN
                        UNIVERSITY SCHOOL OF LAW

        Mr. Kontorovich. Thank you, Chairman King, Ranking Member
    Cohen, Ranking Member of the Committee Conyers and honorable
    Members of Committee. It is a great pleasure to be here today
    to discuss these matters with you.
        I'll state one thing for the record: I have the pleasure to
    say we are now the Northwestern Pritzker School of Law. And our
    generous donor would be happy to hear me say that, I hope. So
    the executive, nobody would dispute, has vast discretion in
    foreign affairs, discretion imparted both by the Constitution,
    which gives the executive a primary role in the conduct of
    foreign affairs because of the greater capacity of a single
    individual to enter into negotiations and conduct dealings with
    foreign countries and also because Congress on top of that
    already broad discretion, has given the executive vast leeway
    through statutes that allow for waivers and many other
    delegations of broad authority.
        However, Congress also has constitutional powers, core
    Article I powers, including the foreign commerce power,
    spending power, which can greatly affect foreign affairs. And
    when these powers are exercised in the realm of foreign
    affairs, they are no less valid and no less plenipotentiary
    because they involve diplomacy or matters involving other
    countries.
        Now, indeed, because the executive's powers in foreign
    affairs are so broad, it is hard for the executive to
    overreach. It's hard. But that makes it all the more amazing
    and all the more worrisome when the executive does indeed
    overreach. Because when one has vast power, claiming even more
    is even more problematic.
        I'm going to briefly mention two examples, two recent
    examples, of what I see as such overreach, involving two core
    Article I powers of Congress: the foreign commerce power,
    involving the Iran Sanctions Act, and the spending power,
    involving funding to certain United Nations agencies.
        As Chairman Goodlatte mentioned, the Iran Sanctions Review
    Act requires that the President transmit, as a condition for
    the sanctions relief that the act enables, that the President
    transmit the entire agreement. The language of this provision
    in the Iran Review Act is extraordinarily vast, and it looks
    like it was written by teams of redundant lawyers. And it bears
    quoting again: ``these agreements include appendices, annexes,
    codicils, side agreements, implementing materials,
    documents''--that's one broad category; the question is, is
    this a ``document?''--``guidance, technical or other
    understandings,'' and lots of other stuff.
        The question is, are the relevant materials involving
    arrangements between the International Atomic Energy Agency and
    Iran, for inspection and review of their nuclear program, is
    that a document, material, codicil, and so forth, under the
    deal? And it seems quite clear that it is. It's actually
    mentioned and incorporated by reference in the Joint
    Comprehensive Plan of Action itself, and as such, it must be
    transmitted to Congress for the review period under the act to
    begin.
        If that review period does not begin, sanctions cannot be
    lifted. It is true, as Ranking Member Conyers pointed out, that
    prior statutory sanctions had waiver provisions. But just as
    Congress can allow the President to waive, it can cabin and
    take back that waiver authority, which is exactly what happened
    in the Iran Nuclear Sanctions Review Act. As a result, the
    current lifting of some sanctions is legally problematic, and
    even more troubling is the executive's apparent desire to
    leverage this to now intimidate states into abandoning their
    lawful sanctions, which, again, the Iran Nuclear Review Act
    would prohibit.
        Now, a separate law involves Congress' exercise of its
    spending power. Congress can, through the power of the purse,
    deal with any subject involving diplomacy, involving war, as
    the Chairman mentioned. And Congress provided that when U.N.
    agencies try to take sides in the Middle East conflict and
    improperly admit the Palestinian Authority as a member state,
    despite it not meeting the international criteria for
    statehood, those agencies can't be funded by the U.S. taxpayer.
    That law is quite clear, and it applies to any U.N.-affiliated
    agency.
        One such agency, the United Nations Framework Convention on
    Climate Control, has accepted the Palestinians as members. The
    clear effect must be that they cannot receive taxpayer funding.
    The Executive seems to take the position that he will
    nonetheless send a check to this agency on the theory that the
    framework convention is a treaty. It's true it is a treaty, but
    it is also an agency created by that treaty. I think the best
    proof of that is that a treaty can't deposit a check. Only a
    U.N. agency can deposit a check. I presume the money from the
    Treasury isn't being sent to the treaty. It is being sent to
    the U.N. agency, and that's exactly what the law prohibits.
        Thank you. And I would refer the Committee to my written
    testimony for further elaboration.
        [The prepared statement of Mr. Kontorovich follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. King. Thank you, Mr. Kontorovich.
        Now I recognize the gentleman Mr. Vladeck for his
    testimony.

      TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
                  UNIVERSITY WASHINGTON COLLEGE OF LAW

        Mr. Vladeck. Great. Thank you, Chairman King, Ranking
    Member Cohen, distinguished Members of the Task Force. It's an
    honor and a privilege to be testifying before you again.
        I do fear that it has become an all too common refrain in
    contemporary American discourse for those who object to the
    wisdom of particular policy outcomes to disguise that objection
    behind claims of legitimacy; that is that the relevant
    government actor lacks the authority to effect the disputed
    policy outcome, never mind its wisdom or potentially its lack
    thereof. For example, when the Supreme Court interprets the
    Constitution in a manner some of us don't like, critics often
    object to the Court's power to even reach the contested
    interpretation in the first place rather than the merits of the
    interpretation.
        In a recent essay, my friend and George Washington law
    professor Orin Kerr described this phenomenon, which he harshly
    criticized, as the politics of delegitimization. It seems to me
    that today's hearing is a variation on the same theme,
    portraying a range of perfectly legitimate substantive
    disagreements over various of the Obama administration's
    foreign policy initiatives as arrogations of executive power
    rather than merely as exercises of executive power with which
    many of us simply disagree.
        Indeed, of all the areas in which President Obama has been
    criticized for overreaching, foreign affairs may be the context
    in which those claims run the hollowest. Not only does the
    Constitution invest the President with a wide range of inherent
    and, as the Supreme Court just reminded us in the Zivotofsky
    case, preclusive constitutional authority in the field of
    foreign affairs, but Congress has historically acquiesced by
    broadly delegating much of its own authority in this field to
    the President. Nor does the President overreach simply by
    entering into diplomatic accords without formally submitting
    the agreement to Congress. All three branches of the Federal
    Government have recognized, and shortly after the founding,
    that the President has the constitutional power to enter into
    bi- or multilateral agreements that are not treaties for
    constitutional purposes. Indeed, as the Congressional Research
    Service explained in a March 2015 report, these agreements,
    rather than treaties, have become the constitutional norm.
        With regard to the third category of these agreements, so-
    called sole executive agreements, as the Supreme Court
    explained in 2003, our cases have recognized that the President
    has the authority to make executive agreements with other
    countries requiring no ratification by the Senate or approval
    by Congress. This power hasn't been exercised since the early
    years of the Republic. Indeed, although the extent of the
    President's authority to conclude executive agreements is
    uncertain, as one recent study concluded, the courts have never
    struck down a Presidential executive agreement as being
    unconstitutional. Instead, the contemporary debate is not over
    the abstract validity of sole executive agreements but rather
    the specific criteria that separate agreements that ought--that
    separate--pardon me, agreements that ought not to be required
    in congressional involvement from those that should. To be
    frank, there are no bright lines, but by far, the two most
    important criteria for assessing whether the President should
    submit an international agreement to Congress are whether the
    agreement is inconsistent with and could not be implemented on
    the basis of existing U.S. law and whether the agreement
    establishes binding legal rules or financial commitments with
    which the United States comply. Unless the answer to both
    questions is yes, history, practice, and precedent all suggest
    that the President is acting within his constitutional
    authority when he enters into such a sole executive agreement.
        As my written testimony explains in more detail, I'm hard
    pressed, in light of these criteria, to see the argument that
    my colleagues make that President Obama was constitutionally
    required to submit to Congress either the full Iran deal or the
    Paris climate agreement for many of the reasons echoed by Jack
    Goldsmith and John Bellinger. Obviously, I would be happy to
    say more about both of these lines of analysis during the Q&A.
    But apart from the merits of these debates, it seems to me that
    the more important point is the extent to which efforts to
    portray the foreign policy of the Obama administration, as
    reflected in executive overreach, are another example of the
    phenomenon described by Professor Kerr.
        Of course, this Task Force, this Committee, and this
    Congress may think there is more political and rhetorical gain
    to be had from casting these debates on legitimacy returns. But
    I fear that such an approach has deleterious long-term
    consequences for Congress' institutional role in the formation
    and supervision of U.S. foreign policy. After all, the more
    Congress focuses its critiques on ill-conceived legitimacy
    objections, the more it suggests, however implicitly, that all
    it is capable of in the field of foreign affairs is to offer
    such authority-driven objections to these policies as opposed
    to either enacting legislation that more aggressively seeks to
    assert Congress' own foreign policy prerogatives or taking a
    more active role in stimulating and raising the national level
    of discourse over the normative desirability of these measures.
    To me, Congress should be more careful going forward to seize
    these imperatives in the foreign policy arena.
        But as Professor Goldsmith has concluded: ``I doubt
    Congress will be more careful in the future since it typically
    doesn't like and cannot organize itself to exercise the
    responsibility of an equal constitutional partner in the
    conduct of U.S. foreign relations.''
        Studying the origins and trouble and persistence of that
    institutional shortcoming is, in my view, far more worthy of
    this Task Force's time than trumped-up charges of executive
    overreach that once subjected to meaningful scrutiny smack of
    nothing more than the politics of delegitimatization.
        Thank you again for the opportunity to testify before the
    Task Force this morning, and I look forward to your questions.
        [The prepared statement of Mr. Vladeck follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. King. Thank you, Mr. Vladeck.
        The Chair would now recognize Mr. Groves for his testimony.

                 TESTIMONY OF STEVEN GROVES, LEADER OF
               THE HERITAGE FOUNDATION'S FREEDOM PROJECT

        Mr. Groves. Thank you, Mr. Chairman, for inviting me to
    testify today about executive overreach in foreign affairs.
        The debate over the proper scope of executive power in
    foreign affairs has been going on for more than 200 years. It
    arose during the 1793 George Washington Presidency when he
    declared that the U.S. would be neutral in a war between France
    and Great Britain. The Monroe Doctrine, FDR's Destroyers for
    Bases Agreement, and the Algiers Accords are just a few
    historical examples where significant questions have arisen
    regarding executive authority in the conduct of foreign
    affairs. And here we are in 2016 continuing this debate.
        In our defense, it's not really our fault. The text of the
    Constitution, though fairly specific on the distribution of
    power in the domestic sphere, is less helpful in the foreign
    affairs arena. The Constitution was written to remedy certain
    pre-constitutional disputes. And as a result, we're forced to
    strain to find textual guidance to address many of the issues
    that arise today, particularly in foreign affairs.
        There is, of course, the Commander in Chief Clause, but
    most of the executive's foreign affairs powers have developed
    through historical practice over the past two centuries. To
    make things more difficult, for better or worse, the Federal
    courts rarely intervene to clarify the limits of executive
    power in foreign affairs because such cases usually present
    nonjusticiable political questions that courts are loath to
    answer one way or the other.
        But, today, I'd like to focus on the President's actions in
    the area of treaty making and how, in my view, he has
    overreached and even abused his authority. This Task Force has
    already heard testimony regarding the President's executive
    actions regarding immigration and health care that constitute
    overreach.
        In the foreign affairs realm, the President does the same
    thing but through so-called sole executive agreements, as
    mentioned by Professor Vladek. Specifically, the President's
    decision to treat the Paris Agreement on climate change as a
    sole executive agreement was an overreach and an abuse of his
    executive authority. Never before has an international
    agreement of such import been treated as a sole executive
    agreement, not once in American history.
        The President himself stated that the Paris Agreement will
    literally save our planet. That's a quote. And yet the
    agreement somehow does not rise to the level of a treaty
    requiring the advice and consent of the Senate. The President's
    actions are an overreach for several reasons, first of which is
    that they fly in the face of a commitment made by the executive
    branch to the Senate in 1992. Back then, during the
    ratification debate on the U.N. Framework Convention on Climate
    Change, the Senate was concerned President Bush or a future
    President would negotiate follow-on agreements that had
    emissions targets and timetables but not submit those follow-on
    agreements to the Senate. The Senate, then controlled by
    Democrats, required assurances that any such follow-on
    agreement containing targets and timetables would be submitted
    for approval. President Bush agreed on behalf of the executive
    branch, and the commitment was memorialized in the framework
    convention documentation during the ratification process.
        Now, the next President, to his credit, lived up to that
    commitment. When President Clinton negotiated the Kyoto
    Protocol in 1997, he treated it as a treaty, something that
    would have to go to the Senate for advise and consent. He
    didn't attempt to circumnavigate the Senate. He didn't ignore
    the 1992 commitment. He didn't simply declare the Kyoto
    Protocol was a sole executive agreement that didn't require
    Senate approval. He stuck to the commitment because that's what
    Presidents should do.
        But President Obama is unwilling to live up to those
    commitments. And the Paris Agreement certainly contains targets
    and timetables, but the President refuses to submit it to the
    Senate. That is executive overreach. The President's actions
    also ignore the objective criteria used by the State Department
    in determining whether an international agreement is a treaty
    versus an executive agreement, the so-called Circular 175
    procedure mentioned by Chairman King. As I detail at length in
    my written testimony, when the eight factors of the C-175
    procedure are applied, it's clear that the Paris Agreement must
    be treated as a treaty. But the President has chosen to ignore
    those factors as well as the 1992 commitment to the Senate.
        Now, because of this overreach, that will not likely be
    remedied in Federal court, it is incumbent upon Congress to
    refuse to fund the implementation of the Paris Agreement until
    the people, through their elected Representatives, approve it,
    and at a minimum, this House should refuse to appropriate U.S.
    taxpayer dollars for the so-called Green Climate Fund or any
    other financial mechanism associated with the Paris Agreement
    or the U.N. Framework Convention. Congress should also continue
    to resist and disapprove of all regulations meant to implement
    the Paris Agreement such as the Clean Power Plan.
        I thank you again for inviting me to testify, and I look
    forward to any of the questions that the panel has.
        [The prepared statement of Mr. Groves follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. King. Thank you, Mr. Groves.
        I'll now recognize myself for 5 minutes.
        I would go directly to the way you culminated your
    testimony and that would be your recommendation that if
    Congress--I'll ask it this way: When there's an executive
    overreach in the case of, say, the Paris Agreement, for
    example, then it's your advice that Congress should refuse to
    fund it and use the power of the purse to restrain an overreach
    of the executive branch of government. Would it be your opinion
    that Congress do that, whether or not we agree with the policy
    that's been negotiated?
        Mr. Groves. It should be dealt with, you know, on its own
    merits. You know, if for some reason there was a President
    Trump or maybe it was President G.W. Bush who negotiated this
    Paris Agreement and treated it as a sole executive agreement, I
    would still be here testifying against it as a conservative. It
    is the principle of the matter that Congress and the Senate is
    being bypassed. Then they will come to you and ask for the
    appropriations, billions and billions of dollars a year, by the
    way, for this Green Climate Fund. So, on the principles of
    separation of powers and executive overreach, you should still
    defund this until it can be remedied, regardless of whether you
    agree or disagree with the President's views on climate change.
        Mr. King. If your recommendation is, on the basis of the
    principle of the separation of powers and the doctrine that,
    even though Congress might agree with the policy, you would say
    defund that policy and say to the President: You must come to
    us, because that's congressional authority; don't step into our
    jurisdiction.
        Mr. Groves. Correct.
        Mr. King. Mr. Vladeck, would you comment on that?
        Mr. Vladeck. Certainly, Mr. Chairman, I would not disagree
    that Congress has the power of the purse and that through the
    power of the purse Congress has the authority to express its
    views on the wisdom or lack thereof of policy initiatives in
    the executive branch. I don't think it is--I think Members of
    Congress are free to use their votes to disapprove of policies
    they don't like through the power of the purse.
        The point I would make briefly is I think it is worth
    stressing that that is a very different question than whether,
    in the absence of a no-funds provision, the executive has
    overreached simply by going the executive agreement route over
    a treaty. But, certainly, the power of the purse is I think an
    obvious and long available option for Congress to assert
    itself.
        Mr. King. On the matter of principle rather than the matter
    of policy, would it be your counsel also that Congress should
    defend its authority to use the power of the purse, even if
    they agree with the policy, but there has been an overreach?
        Mr. Vladeck. I mean, so I guess I would say it is up to the
    individual Member to decide which is more important to him or
    her, which is to say, is it more important to assert the
    institutional prerogative of Congress or to support a policy
    choice that you agree with? I think each Member is going to
    make that decision for themselves.
        Mr. King. So I'd say Mr. Groves said principle; you said
    pragmatism. And I'd turn then to Mr. Kontorovich to settle this
    dispute.
        Mr. Kontorovich. I think principle is the long-term
    solution for Congress.
        Mr. Vladeck. I'm going to be outvoted a lot today.
        Mr. Kontorovich. They are going to be in the same shoes
    again. And the important reason to take a stand--in all of
    these cases, when you are going to be defunding something, it
    is going to hurt. It is going to hurt someone. It is going to
    run afore some policy imperatives. But if Congress is unwilling
    to use this tool, it really can't expect the President to heed
    their wishes. Indeed, as we see with the continued funding of
    the United Nations Framework Convention on Climate Control,
    sometimes even defunding isn't enough to get something
    defunded. Sometimes even a no-funds provision is going to be
    ignored. So what I would advise is that Congress needs to keep
    in mind that its legislation in the end is going to be
    interpreted by the President, usually in a nonjusticiable
    context. The President will effectively be interpreting
    legislation designed to bind him. And so Congress, if anything,
    overdo it in the direction of constraining the President,
    because don't worry; the President won't be overconstrained.
    The President will loosen whatever shackles are on him until he
    has comfortable room to maneuver.
        Mr. King. Thank you, Mr. Kontorovich.
        Now I'd start back down the line again to Mr. Groves, and
    I'd phrase it this way: Even in the face of having a President
    who would out of his desire to advance an executive overreach
    policy on climate change agreement, like the Paris Agreement,
    if you have a President that you know will veto any legislation
    that uses the power of the purse to stand on principle--if
    Congress stands on principle, as you suggested, how does that
    principle stand up against a government that would be shut down
    and could not be opened up again without a concession to the
    President, given that a supermajority to override a President's
    veto would be required?
        Mr. Groves. You know, it's a dance that we've seen with
    these government shutdowns time and time again. But I would
    answer your question by referring to Congressman Cohen's
    concern that, in some time in the future, we could be faced
    with a President Trump and if Congress is intending on
    protecting its congressional prerogatives and its power of the
    purse and having principled positions when a government
    shutdown is looming, now is the time to assert those, so that
    if and when there is a President Trump, you are not accused of
    mere partisanship and you stood on principles that came out
    during this Task Force and these hearings.
        Mr. King. Thank you, Mr. Groves.
        And I would say also that in this essentially a stare down
    between the Congress and the President, as the case may be, and
    you're faced with a government shutdown, the side that prevails
    will be the side that doesn't blink. And so if the public is
    very strongly behind the Congress itself and insists that we
    defend those constitutional principles that you've articulated,
    then it could be a different result in that kind of a showdown.
    And I think that is what's been the result of the shutdown we
    had in the past; I think it was a foregone conclusion that the
    President would not blink, and it was a foregone conclusion
    that Congress would. So I have just said: Find me 217 others
    who will that sign a blood oath that they will blink after I
    do.
        Thank you. And I yield to the Ranking Member of the Task
    Force from Tennessee.
        Mr. Cohen. Thank you, Mr. Chair.
        President Trump would wink and not blink.
        Mr. Kontorovich, I really enjoyed your presentation. The
    substance was good, but the delivery, the accent, and the style
    reminded me of my dear late friend Christopher Hitchens. He
    would not have a yarmulke on, although he did have some Jewish
    heritage, but he didn't necessarily believe in all of that
    stuff. But you sound like Christopher Hitchens.
        Tell me how would you frame a statute that you think would
    solve the problem that you think exists? Because we've already
    got a Constitution that says X, Y, Z, and we have got Supreme
    Court opinions. So what's a statute going to do?
        Mr. Kontorovich. So to speak generally across the different
    contexts we have considered, a statute would have fewer wiggle
    words, be more direct, and go in the direction of overbreadth.
    Congress, when it's legislating in the area of foreign affairs,
    is very conscious, self-consciously avoiding restraining the
    executive in ways which will be awkward for him or which will
    impair our diplomacy. And that is a salutary desire, except one
    has to remember that whatever Congress does, the executive is
    also going to interpret it more in line with his foreign policy
    objectives. And the executive will have the last word, so I
    would use broader, clearer language. For, for example----
        Mr. Cohen. Broader, clearer. Doesn't broader--I thought you
    said simple and concise, more or less.
        Mr. Kontorovich. Yes, that's exactly right. So, for
    example, instead of saying ``U.N.-affiliated agencies,'' I
    would say ``U.N. agencies.'' Take out of word ``affiliated.''
    Each word is going to be used by the executive as an excuse for
    not implementing the policy of the Congress as legislated.
        Fewer waivers would also be desirable, but most
    importantly, Congress needs to back its legislation. Because in
    the examples I gave, Congress did, in fact, have very broad
    language, for example, about the required transmittal of
    documents under INARA. Congress has pretty clear defunding
    provisions regarding U.N. agencies and the Palestinian
    Authority. The question is, is Congress going to get angry
    about it when it doesn't happen? The question of funding the
    U.N. agencies and whether this is a U.N. affiliate agency or
    whether it is a U.N. treaty agency is somewhat reminiscent I
    might say, to broaden the partisan context here, of the Boland
    amendment and the question of whether the National Security
    Council was a U.S. intelligence agency for purposes of laws
    restricting funds to the contras.
        Now when Congress considered that its directives were
    violated by the President, that the President spent money
    without their authorization using statutory interpretation,
    Congress didn't just say: Well, that's--what are we going to
    do.
        Mr. Cohen. I can't remember; which President was that?
        Mr. Kontorovich. That was Ronald Reagan.
        Mr. Cohen. Oh, yeah, yeah, yeah.
        Mr. Kontorovich. So I thought you would appreciate the
    broadening of the partisan context, sir. But I would remind you
    Congress' reaction. Congress didn't say: Well, it's the
    President; it's foreign relations.
        It was a massive national question.
        Mr. Cohen. I don't know how massive it was. Certain people
    thought--other people thought Oliver North should have been
    given a Congressional Medal of Honor. There was a split of
    opinion on the whole deal.
        Mr. Kontorovich. The hearings about the funding to the
    contras I think were much more extensive than the hearings
    about the funding for the United Nations Framework Convention
    on Climate Control, though the amount of money in question was
    not too different.
        Mr. Cohen. Yes, sir.
        Mr. Groves, do you have differing opinions on how
    legislation would be framed?
        Mr. Groves. Well, right now, the C-175 procedure, if
    everyone adheres to it, does the job. As I mentioned, during
    the Clinton administration, they adhered to it, and they knew
    the Kyoto Protocol was a treaty, and that's why they never even
    bothered to submit it.
        You have to really strike a balance between codifying some
    of these procedures to make sure that these things can be
    better understood between the two branches in the future and
    stepping over the line between where the separation of powers
    are between the legislative and executive branch. But I think
    there's probably a middle ground where the current state of
    affairs with the C-175 factors and how it is decided whether to
    negotiate something as a treaty versus an executive agreement
    could be codified in a way that brings greater transparency to
    the process and we can avoid some of these disputes in the
    future, as we've had over----
        Mr. Cohen. Do you really think if we did that, that a
    President Trump would give a hoot?
        Mr. Groves. I don't know about him. I wasn't on his team. I
    think the guy that I was backing would give a hoot. I think
    that other well-meaning Democrats in the office would give a
    hoot. We have proof of it. President Clinton gave a hoot, and
    there were a number of things that he would have loved to have
    seen. He signed the Rome Statute on the International Criminal
    Court; the Convention on the Rights of the Child, a human
    rights treaty; and the Kyoto Protocol. He would have loved to
    see those things come into action, but he didn't pretend that
    they weren't treaties. He didn't pretend they were sole
    executive agreements. He adhered to his obligations.
        Mr. Cohen. My time has expired. But I'm just curious who
    you supported.
        Mr. Groves. I was on Senator Cruz' team.
        Mr. Cohen. Lying Ted. As distinguished from short this one
    and whatever that one is.
        Mr. King. The gentleman's time has expired.
        For the record, I know the whole truth to that, and that is
    not true.
        Mr. Cohen. I was just being facetious with the term.
        Mr. King. Generally, I appreciate the gentleman from
    Tennessee.
        And now I recognize the gentleman from Texas for his
    testimony, questioning.
        Mr. Gohmert. Thank you. I do appreciate the satire in
    satirically violating the rules of decorum of the House. I
    always felt it was rather satirical of somebody who had to be
    lying to say ``lying Ted'' or ``the most dishonest person he
    had ever met'' since he was the most honest man in the race.
        But let's go back to this Paris Agreement, and I
    appreciate, Mr. Kontorovich, your written testimony. You got
    into more detail that the U.N. Framework Convention on Climate
    Change accepted the Palestinian Authority as a state party. As
    you say, the move is part of the Palestinian effort to be
    declared a state. The United States does not recognize the
    Palestinian Authority as a state, and U.S. policy has
    consistently opposed such moves. Therefore, longstanding U.S.
    law requires the defunding of any U.N. organization that grants
    Palestinian Authority such status. We also--I haven't read the
    Paris Agreement, but my understanding from reading articles
    about the Paris Agreement, the original article IX required
    developing nations to transfer wealth to underdeveloped
    nations, and normally, that would require congressional action
    so--and I know there was this great facade over the Iranian
    treaty. The Corker bill amended the Constitution with a
    legislative act by requiring a treaty to only get one-third of
    the vote of the Senate in order to be effectively ratified. I
    still think the Constitution is intact in that area. It should
    have required two-thirds to ratify what is a treaty, because it
    does modify a number of other treaties like with regard to
    missiles and proliferation. So, on one hand, I appreciate the
    testimony. Clearly, if we're going to be transferring American
    wealth, with all due respect to the President's desire to
    spread the wealth, that's not something he has authority under
    the Constitution to do without congressional concurrence. And
    it also does explain why after the Kyoto accords, the
    underdeveloped nations were all claiming: If we don't get
    America on board, this agreement doesn't work. What they were
    saying was: If America doesn't sign on, then the one country
    that's going to send us checks is not going to be sending us
    checks, which is the whole reason we're part of this; we want
    to get checks from the U.S. Congress, from the U.S. Treasury.
        And so does anybody see a constitutional way of having the
    United States Treasury send money to the benefit of foreign
    countries without congressional concurrence in that? Anybody?
    Mr. Groves?
        Mr. Groves. No, there actually is no way to do that and----
        Mr. Gohmert. Constitutionally.
        Mr. Groves. Not constitutionally.
        Mr. Gohmert. Yeah. Apparently, it is going on like money
    being provided to Iran without congressional consent, but any
    other thoughts on that happening?
        Mr. Groves. Well, I mean, the House did and the Senate had
    an opportunity during the omnibus to put in language strictly--
    specifically preventing the transfer of the $3 billion to the
    Green Climate Fund that the President had pledged.
        Mr. Gohmert. Was there a need to put that in since they do
    not have authority to do that currently?
        Mr. Groves. There was a need to put that in if you wanted
    to prevent the President from reprogramming other funds from
    other climate-related international aid areas into the Green
    Climate Fund, which is what he ultimately did in order to come
    up with the $3 billion that he had pledged.
        Mr. Gohmert. Do you agree that the Senate should have taken
    a vote on the Iranian agreement as a treaty and determined
    whether or not they get two-thirds to ratify?
        Mr. Groves. Well, I would defer to Eugene on the Iran
    nuclear deal issues. We had a debate. We have had debates
    within our circles about whether the Senate can just decide on
    its own that an agreement is a treaty and we are going to take
    a vote on it. There's good arguments on both sides of that
    issue. I think I agree with you--whether the Senate can do
    that, there's good arguments. But I agree with you that the
    Corker-Cardin bill was, I think, a wrong-headed way to move
    forward because you essentially turned the two-thirds advise-
    and-consent vote into the one-third----
        Mr. Gohmert. Well, my time has expired, but I'm astounded
    that you think the Senate can call a cow a horse and then it
    becomes a horse. But thank you for your testimony.
        Mr. King. The gentleman from Texas yields back.
        And the Chair will now recognize the Ranking Member of the
    full Committee, Mr. Conyers from Michigan.
        Mr. Conyers. Thank you, Chairman.
        Professor Vladeck, is the Paris climate agreement and the
    Iran nuclear deal inconsistent with current American law?
        Mr. Vladeck. If they are, I'm not sure what those laws are.
    I mean, I've listened to my friends Professor Kontorovich and
    Mr. Groves, and, you know, I haven't heard specific American
    statutes that these agreements are inconsistent with. Professor
    Kontorovich wants to suggest that failure to transmit the IAEA
    side deal of the Iran agreement violates the INARA, the Nuclear
    Agreement Review Act. I would just refer the Task Force to Jack
    Goldsmith's 2015 blog post on why the argument is intriguing
    but not convincing.
        Mr. Conyers. What say you, Professor Kontorovich?
        Mr. Kontorovich. My friend and teacher Jack Goldsmith wrote
    that blog post before he read my testimony and the full
    presentation of my arguments.
        Mr. Vladeck. Although he refers to you specifically in the
    post.
        Mr. Kontorovich. Yes, indeed. So he read part of the
    material in the testimony but not the fully elaborated
    argument.
        Again, I think it's important to point out, INARA does not
    require the President to transmit any deal. It's not a
    violation of INARA for the President to not transmit material.
    The President can say: This material is sensitive; I don't want
    to give it over. That is entirely consistent with INARA.
        However, the consequence of that under INARA is that the
    sanctions, existing statutory sanctions, can't be lifted. It's
    not a violation. It just has consequences in terms of statutory
    sanctions. There is nothing unconstitutional about the
    President not transmitting this material. The problem is that
    the President wants to act as if the material were transmitted
    when, in fact, it was not. And I would refer the Honorable
    Members to the various statements of congressional intent made
    during the discussions of INARA, where it was quite clear that
    Members understood they wanted to see everything to exercise
    their constitutional right to review the agreement.
        Mr. Vladeck. Although that's not what the statute says. I
    mean, I think that--so the problem is that I think Professor
    Kontorovich is right that one can find legislative history
    suggesting that everything was on the table. As I think
    Professor Goldsmith's post makes clear, if you actually read
    the text of the statute, there are certainly plausible,
    reasonable interpretations of the language that actually only
    refer to agreements to which the U.S. is a party, which does
    not include the IAEA side deal with Iran.
        I'm not saying that there is an obvious answer. My point is
    that I think we would need more of a smoking gun before
    reaching the conclusion that both of my colleagues reach that
    these agreements are clearly inconsistent with existing U.S.
    law.
        Mr. Conyers. Well, let me ask you this: Has either the
    Paris climate agreement or the Iran nuclear deal created new
    legal, binding commitments with which our country must comply?
        Mr. Vladeck. So I think, I mean, my understanding of both,
    and I'm certainly happy to hear what my colleagues think, is
    that they create process commitments. They create reporting
    requirements but that the actual text of the agreements was
    carefully negotiated to avoid binding, substantive legal
    obligations entirely to avoid the U.S. constitutional law
    objections. Right, indeed, there's a great post that I cite in
    my testimony about how the word ``shall'' was changed to
    ``should'' at the last minute for the emissions cap in the
    Paris climate agreement entirely to avoid the very argument we
    are now hearing that these agreements impose mandatory
    substantive obligations on the U.S. and, therefore, must be
    submitted to Congress.
        Mr. Conyers. Professor Kontorovich, do you generally agree
    with that assessment?
        Mr. Kontorovich. Yeah. I'm not as well read in the Paris
    deal, but I do not believe the Iran deal creates binding legal
    obligations for the United States, which is going to be
    extremely important when the Administration argues that State
    laws must be preempted because of the deal, which is not
    something that can happen if it does not create binding legal
    obligations for the United States.
        Mr. Conyers. Let me raise this last question here.
    Opponents of the Administration's policy claim that the
    President has exceeded his legal and constitutional authority
    in foreign affairs, but in what ways has Congress itself
    delegated its foreign policy powers to the executive branch?
        Mr. Vladeck. Well, I think in the case of the Iran deal, I
    mean, I think it's quite clear that Congress in prior statutes
    had already delegated to the President a wide range of
    authority to figure out what the sanctions regime should look
    like, to set the terms of the sanctions, to control the timing
    of the sanctions. And so, you know, as Professor Goldsmith
    says, but for those delegations, I think we would be in a very
    different position talking about how much authority the
    President already had to conduct the Iran agreement without
    Congress.
        Mr. Conyers. Do we have agreement on that generally?
        Mr. Kontorovich. It is exactly because Congress delegated
    such broad discretion to the President that limitations on that
    discretion, subsequent walk-backs of that discretion, and ways
    of monitoring that which INARA embodies need to be strictly
    construed.
        Mr. Conyers. Professor Groves--Mr. Groves, do you agree
    with that?
        Mr. Groves. I would just speak as to the Paris Agreement.
    We have very specific things that the President didn't adhere
    to that demonstrate his overreach. The test is not whether
    there was a specific statutory law that the President has
    breached. That's a pretty high bar. What we have in the Paris
    Agreement is we have him ignoring the C-175 procedure, which
    decides what's a treaty and what's a sole executive agreement.
    We have him ignoring the 1992 commitment made by a prior
    executive to the Senate to submit future agreements with
    targets and timetables to the Senate. That is the basis for my
    opinion that President Obama has gone beyond his mandate when
    it comes the Paris Agreement.
        Mr. Conyers. Thank you, Chairman King.
        Mr. King. I thank the gentleman from Michigan.
        And now I recognize another gentleman from Michigan, Mr.
    Bishop.
        Mr. Bishop. Thank you, Mr. Chairman.
        I appreciate your testimony today. Thank you very much for
    being here today.
        Mr. Groves, one of the questions I get from my constituents
    on some of these deals and, in particular, the Iran deal is,
    how do we know whether an international agreement should be a
    treaty or an executive agreement?
        Mr. Groves. Well, it's--I wish it was set in stone, but
    it's not. I wish the U.S. Supreme Court had come down with an
    opinion laying out all of the factors, but they haven't. And
    don't know if that's their role. What we do have is there were
    disputes over this back in the 1950's. You remember things like
    the Bricker amendment. You remember things like the Case-
    Zablocki Act where the separation of these powers between
    Congress and the President were debated. And one of the things
    that came out of that debate and out of that dispute was the
    Circular 175 procedure, which gives eight factors, which I
    detail ad nauseam or at least at length in my written
    testimony, which takes a look at the final Paris Agreement and
    element by element examines it to see if it meets those eight
    elements. And it's--my opinion is that they meet all eight of
    them; not one or two, not just five or six, but all eight, I
    believe, are satisfied when you look at the extensive and
    comprehensive treatment of climate change that the Paris
    Agreement gives you.
        So my short answer would be: the C-175 procedure is our
    best test for what's a treaty.
        Mr. Bishop. So how might Congress codify or clarify the
    treaty process to ensure that the Senate does have that
    opportunity to provide advice and consent?
        Mr. Groves. Carefully. We want to be able to do so without
    breaching the separation of powers. We want to do so in a way
    that doesn't hamstring future Presidents, Republican or
    Democrat, in making sound international agreements. I think, as
    I stated earlier, if it can be done in such a way that would
    foster transparency, it would--half the job would be there. As
    it stands, the State Department does an internal procedure
    under C-175 and ultimately submits a memo to the Chairman and
    Ranking of the Senate Foreign Relations, and that's the end of
    it. Very opaque. No one, I think, outside of those Committee
    hearings gets to read those, and maybe sometimes they shouldn't
    because they might be sensitive. But when we don't have more
    transparency or more ways that both Houses can kind of examine
    these things before it's too late, I think you end up with the
    disputes that we are having here today with the Iran nuclear
    deal and with the Paris Agreement.
        Mr. Bishop. Thank you very much.
        Mr. Kontorovich, can you explain to us what the current
    legal status is of the statutory Iran sanctions?
        Mr. Kontorovich. The statutory Iran sanctions, which have
    been embodied in numerous instruments and Congress has passed
    many sets of Iran sanctions, almost invariably had provisions
    allowing the executive to waive or suspend or sunset them.
    Congress can extend, can delegate that kind of authority to the
    executive. By the same token, that which Congress giveth, it
    can taketh away or limit. In INARA, and this relates to Mr.
    Gohmert's comment, Congress did a very unusual thing and
    flipped the majority presumption for congressional action,
    which is a significant deferral to the executive. That came at
    a price. The price was until the review obligations were met by
    the President, existing sanctions which allowed for waiver
    could not, in fact, be waived. Because those requirements were
    not complied with, the previous waiver authority contained in
    legislative sanctions is now suspended. That is to say: just
    like the legislative sanctions allowed for waiver, there has
    since been new legislation, namely INARA, which the President
    signed.
        Now, one might say: Isn't it a bit much because of these
    IAEA documents to limit the President's waiver authority?
    Again, that is not an inherent waiver authority. That's a
    statutory waiver authority which can be modified by statute.
    And if the President considers it very important, he could make
    these documents available. More importantly, state sanctions
    remain on the books. Some state sanctions are specifically
    authorized in the Comprehensive Iran Sanctions and Divestment
    Act of 2011, which does not given the President authority to
    waive or suspend them, unlike other sanctions. More
    importantly, INARA provides that it's provisions do not in any
    way affect assisting sanctions for Iran for human rights and
    other things, like support of terrorism, which is what some of
    the state sanctions involve. So I would say that INARA locks in
    and protects from executive action state sanctions that aren't
    covered by CISADA, in particular those which deal with human
    rights and support of terrorism.
        Mr. Bishop. Thank you, sir.
        I yield back, Mr. Chair.
        Mr. King. The gentleman returns the time.
        The Chair would now recognize the gentleman from Ohio, Mr.
    Jordan.
        Mr. Jordan. Thank you, Mr. Chairman.
        Professor Kontorovich, good to see you again. I think the
    last time we saw you was in Israel last fall. So we appreciate
    you being here and the other witnesses as well. So let me see
    if I can get this exactly right. This Framework on the Climate
    Change treaty actually in a roundabout way is circumventing
    Federal law and allowing the State Department--not allowing,
    but they are usurping and violating the law and actually
    sending money to an organization that--well, not even an
    organization, a roundabout way they are getting money to this
    organization which recognizes the Palestinian Authority as a
    state. Straighten me out on what's exactly happening here.
        Mr. Kontorovich. Okay. So the funding restrictions in
    question block money from being given to the United Nations if
    they are--treat the Palestinian Authority in various ways as a
    member state.
        Mr. Jordan. Right.
        Mr. Kontorovich. But one of those ways is accepting them
    into the various U.N. agencies. So the funding restriction says
    the U.N. doesn't get money. It's not money to the Palestinian
    Authority.
        Mr. Jordan. Right.
        Mr. Kontorovich. It's money to the U.N. agency.
        Mr. Jordan. Got it.
        Mr. Kontorovich. There are, in the omnibus spending bill,
    various other restrictions about money going to the
    Palestinians if they join the International Criminal Court,
    again, restrictions which I think were written overly narrowly
    in a way which make them easy to avoid. But this particular
    provision is about money to the United Nations Framework
    Convention on Climate Control, and it's a great place, by the
    way, to take a stand on principle the question we were
    discussing before.
        Mr. Jordan. Sure.
        Mr. Kontorovich. We are talking about $17 million. That's
    not going to break the climate, and it's not going to break the
    Middle East peace process.
        Mr. Jordan. So where does the State Department send the
    money?
        Mr. Kontorovich. My understanding is they send it to the
    administration of the UNFCCC, which is the Secretariat, which
    gets the money and pays the bills for these U.N. agencies.
        Mr. Jordan. Because in your opening statement, you said
    there's a difference between--you can't send money to a treaty;
    you have to send it to an organization.
        Mr. Kontorovich. Right. So the United Nation's Framework
    Convention on Climate Control is a treaty which creates an
    organization. So the Administration says: Oh, this doesn't
    count as a violation of the statute because it's not an agency.
    It's a treaty.
        Mr. Jordan. Yeah.
        Mr. Kontorovich. Now, it's true it's a treaty, but it is
    also an agency, just like the United Nations' charter is a
    treaty----
        Mr. Jordan. Got it. Got it.
        Mr. Kontorovich [continuing]. Which creates an institution,
    the United Nations itself.
        Mr. Jordan. Okay. So a different subject. So you have that
    problem, I think a direct violation of the law we are seeing
    from our State Department, and then you also have this a bit
    more, in my judgment, more fundamental problem where the Iran
    agreement was not treated as a treaty, subject to the two-
    thirds requirement in the Senate for ratification. Would you
    agree with that?
        Mr. Kontorovich. So, no, I'm afraid I would not agree with
    that.
        Mr. Jordan. Okay.
        Mr. Kontorovich. Whether it's a treaty or not depends a lot
    on whether it creates obligations for the U.S., whether it
    trumps domestic law and so forth. The President has told us
    that that is not the case. I take his word on it, and I think
    the courts in the future if he would, for example, take action
    to preempt state sanctions----
        Mr. Jordan. Okay.
        Mr. Kontorovich [continuing]. Would hold him at his word.
    And I think it's important to maintain that this deal does not
    create any international or national obligations for the United
    States.
        Mr. Jordan. Okay.
        Mr. Kontorovich. That, by the way, also gives a lot more
    room to a future Administration, for example, to deal with
    potential violations by Iran under this treaty.
        Mr. Jordan. All right.
        Mr. Kontorovich. Under this arrangement.
        Mr. Jordan. So the last point I would make, Mr. Chairman,
    is we had this--it seems in my mind we've got the issue with
    the climate agreement and the dollars. You have got the issue
    on the whole Corker-Cardin arrangement and what that was and
    how it moved through Congress. I think both of those are
    concerns. But, actually, one of the other big concerns is what
    we learned this week, which is this Administration, with the
    Iran agreement, wasn't honest with the American people, wasn't
    honest with the press. So that's even, in some ways, even more
    of a fundamental problem. You cannot have people in positions,
    high positions in our government, who aren't straight with the
    American people. You can't have them doing a con job, which is,
    based on what we have heard about Mr. Rhodes, is exactly what
    they tried to do.
        Mr. Groves, would you care to comment on that in my last
    minute?
        Mr. Groves. Well, a lot of this goes back to what I've said
    about transparency. I mean, under existing procedures, when the
    State Department is going to open up a new set of negotiations
    about a new international agreement, it's under an obligation
    to go through internal processes under C-175 and notify Senate
    Foreign Relations about its intentions. What I do not know
    sitting here, is if and when that notification went to Foreign
    Relations? Was it back with the hardliners in 2009, or was it
    when Ben Rhodes', you know, spin and, you know, his--the
    picture he was painting for the press happened? That type of
    transparency is the type of thing that----
        Mr. Jordan. Is that something formal that they are supposed
    to do, the Administration is supposed to do with the Senate
    Foreign Relations and----
        Mr. Groves. Absolutely. It's all under this particular
    procedure, which arose from these types of disputes that
    happened back in the 1950's when everyone was trying to
    rebalance----
        Mr. Jordan. And do we not know if that took place or do you
    not know?
        Mr. Groves. I don't know what you guys have in your
    briefings but----
        Mr. Jordan. Well, I'm just asking in a general sense. Mr.
    Chairman, that might be something we want to check out to see
    if they did what they are supposed to do. My guess is that if
    they are willing to, you know, not communicate in an honest
    fashion, they may not have done what they were supposed to do.
        Mr. Groves. Yeah.
        Mr. Jordan. That's something we should find out.
        Mr. Groves. What I'm hearing about is--the backtrack is
    these were nongovernmental channels. These were back channels,
    and so they will probably take the view to the extent that this
    ever comes out, that it wasn't yet ripe to trigger notification
    of Senate Foreign Relations.
        Mr. Jordan. Okay. Okay. Thank you, Mr. Chairman.
        Mr. King. And I thank the gentleman from Ohio.
        And the Chair takes note of the remarks and his testimony,
    and as we compile a report, we will also review that topic.
        The Chair now recognizes the gentleman from Idaho for his 5
    minutes, Mr. Labrador.
        Mr. Labrador. Thank you, Mr. Chairman, and thank you to the
    witnesses for being here today.
        Mr. Groves, can you briefly describe the difference between
    a treaty and an executive agreement?
        Mr. Groves. Well, sure. You know, the executive agreements
    are usually narrow. They are often bilateral. They don't
    require additional congressional legislation to implement them
    or additional funding from Congress. Their provisions can
    usually be executed in a fairly brief period of time. They are
    less formal. There are just a number of things that history and
    practice has done to separate the two. Whereas treaties are
    comprehensive, lengthy, complex with lengthy periods of time,
    like the Paris Agreement is open-ended--there is no end to the
    provisions under it, including our obligations to fund the
    Green Climate Fund and other mechanisms to the tune of billions
    and billions of dollars.
        Mr. Labrador. So, in your opinion, is the Paris Agreement a
    treaty?
        Mr. Groves. I think on all fours, it's a treaty. If you
    just look at the objective factors under C-175--you look at
    historical practice, you look at the commentary of legal
    scholars, a lot smarter than I am--and apply that to the facts
    of the Paris Agreement, I think it's uncontrovertibly a treaty.
        Mr. Labrador. So can you briefly discuss Circular 175, or
    C-175, and the justifications that it gives to view the Paris
    Agreement as a treaty?
        Mr. Groves. Say again, sir?
        Mr. Labrador. Can you discuss the State Department Circular
    175, and whatever justifications it gives to treat the Paris
    Agreement as a treaty?
        Mr. Groves. Yes, under the procedure, they are supposed to
    send a memo, a comprehensive memo, to the Foreign Relations
    Committee in the Senate explaining why they are going forward
    in a particular way, why they are going forward as an executive
    agreement versus a treaty. I'm not privy to that memorandum or
    even know that it was sent or not. But I'd sure be interested
    in reading it because making the case for a comprehensive
    Earth-saving international agreement, I'd like to see how that
    got fit into a sole executive agreement format. But I'm not
    privy to that memorandum.
        Mr. Labrador. So what steps or actions can Congress take in
    the future to ensure that a treaty negotiated by any
    Administration, whether it's the Obama, or the Trump
    administration, or any other Administration, follows the proper
    course of action and is properly submitted to Congress?
        Mr. Groves. Well, we need to raise the level of the current
    state because it was just ignored by the President. If there's
    a way to codify it without breaching statute--pardon me,
    without breaching the separation of powers agreements, there
    are proposals that have been out there. There is a legal
    scholar named Oona Hathaway who has given a comprehensive
    proposal on how we might approach this issue going forward,
    especially due to the huge propagation of executive agreements
    and congressional executive agreements in lieu of treaties. So
    it's something that the Heritage Foundation and some of my
    colleagues there are exploring with the idea of proposing
    legislation in the future--probably not during an election
    year, but maybe thereafter--where both the House and Senate can
    codify, make this process more transparent, avoid these types
    of conflicts in the future because the executive branch needs
    to know how much or little support it's going to have in the
    future with a particular agreement. I think more transparency
    is the answer.
        Mr. Labrador. Maybe it might be a good idea to do it during
    an election year because we don't know who the next President
    is going to be, so maybe both parties can actually work
    together on something like this.
        Mr. Groves. Sure.
        Mr. Labrador. What recourse does Congress have right now if
    an Administration refuses to submit a treaty to Congress?
        Mr. Groves. Well, it has got a few recourses. It can hold
    hearings. It can raise the level of scrutiny on what the
    President is doing. It can show the overreach. But when push
    comes to shove, its number one tool is exercising the power of
    the purse. And in things like the Paris Agreement--I'm unsure
    about the Iran agreement--but in the Paris Agreement, it
    pledges billions, tens of billions, probably over time even
    more, billions and billions of U.S. taxpayer dollars to go and
    finance something called the Green Climate Fund, which is going
    to redistribute funds to climate-change projects all around the
    world in developing countries. Congress has the absolute power
    to stop that money. Thus far, it has chosen not to do so, but I
    hope that this--hearings like these and Task Forces like these
    continue to keep the profile high on this so that when these
    funding measures come up again in the future, we can take a
    very close look at them.
        Mr. Labrador. Okay.
        Mr. Kontorovich, I think I'm pronouncing that right, what's
    the significance of the United Nations Framework Convention on
    Climate Change accepting the Palestinian Authority as a state
    party?
        Mr. Kontorovich. The significance is that it shows that
    this agency, supposedly dedicated to climate change, has
    decided to embroil itself in Middle East politics and recognize
    as a state party an entity that does not meet the criteria of
    international statehood. They don't do this with, you know, any
    other entity, with Puntland or Kurdistan. Under U.S. law, this
    means that the U.S. cannot fund the relevant United Nations
    agency of the framework convention.
        Mr. Labrador. Does this signal then a shift or a change in
    U.S. foreign policy?
        Mr. Kontorovich. The U.S. policy has banned the use of
    funds for this since the 1990's. The fact that the
    Administration is going to probably send them a check anyway I
    think doesn't signal a shift of policy so much as what the
    Administration might perceive as wiggle room in the relevant
    statutory language. But the executive has been lobbying
    Congress to get rid of these provisions entirely. And so
    Congress has to understand: this is a negotiation with the
    executive. His policies are clear. It's clear what he wants,
    and Congress can assert itself by giving less of that, by going
    in the opposite direction, rather--so that there will be
    consequences for not complying with the law.
        Mr. Labrador. Thank you, I yield back.
        Mr. King. The gentleman from Idaho returns his time.
        This concludes today's hearing. Thanks to all of the
    witnesses and Members for participating.
        Without objection, all Members will have 5 legislative days
    to submit additional written questions for the witnesses or
    additional materials for the record. I thank the witnesses. I
    thank the Members and the staff and the audience. This hearing
    is adjourned.
        [Whereupon, at 11:35 a.m., the Task Force was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

           Prepared Statement of the Honorable Sheila Jackson Lee, a
        Representative in Congress from the State of Texas, and Member,
                         Executive Overreach Task Force
        Thank you, Mr. Chairman. Good morning and welcome to our witnesses.
        We are here today to review and ``explore'' purported claims that
    President Barack Obama's Administration has engaged in executive
    overreach in matters of foreign affairs.
        In particular, the Majority asserts that the Administration acted
    beyond its executive powers when it did not submit to Congress for
    ratification two agreements known as the Iran Nuclear Deal and the
    Paris Climate Agreement.
        During a time when our Congressional calendar days are incredibly
    valuable and limited, it is disappointing that we are here
    ``exploring'' the validity executive actions that clearly fall within
    the boundaries of well-established executive powers.
        As Members of the Judiciary Committee, we all know and acknowledge
    that the United States Constitution invests the President with inherent
    constitutional authority in foreign affairs.
        That is, pursuant to Article II, Section 2, the President's
    executive authority includes the Commander-in-Chief power, as well as
    the power to make treaties, by and with the advice and consent of the
    Senate and provided two thirds of the Senate concurs.
        Once the Senate gives consent, the treaty, pursuant to the
    Constitution's Supremacy Clause, becomes the law of the land. (U.S.
    Const. Art. VI, cl. 2).
        This inherent power was recently protected and upheld by the
    Supreme Court in Zivotofsky v. Kerry, 135 S.Ct. 2076, 2085 (2015),
    which struck down a Congressional Act that constrained the President's
    constitutional authority to recognize foreign states.
        The Zivotofsky Court further explained that courts have
    ``recognized that the President has the authority to make `executive
    agreements' with other countries, requiring no ratification by the
    Senate or approval by Congress, this power having been exercised since
    the early years of the Republic.''
        And as highlighted by Mr. Vladeck in his testimony, although ``the
    extent of the president's authority to conclude executive agreements is
    uncertain . . . the courts have never struck down a presidential
    executive agreement as unconstitutional.''
        Moreover and more broadly recognized is Congress's traditional and
    historically acquiesced delegation of discretion to the Executive in
    matters of foreign affairs.
        By the acknowledgments of the Majority's own witnesses, this
    hearing is a futile attempt to control undeniably, far-reaching powers
    that have been constitutionally rooted or delegated to the Executive
    for more than two centuries.
        Yet, President Obama has repeatedly been accused of exceeding such
    powers that are simultaneously acknowledged as being readily available
    and legally permissible.
        While, the law always limits every power it gives, one cannot
    breach boundaries that have been legally given, nor can one overreach
    limitations unbreached. (David Hume)
        Notwithstanding, the central issue of concern here today is whether
    the Obama Administration had the constitutional authority to enter into
    executive agreements without congressional assent or whether the
    commitments made under these agreements may be otherwise unlawful.
        The Majority fails to take into consideration the true nature of
    the agreements as non-legally binding.
        An international agreement is generally presumed to be legally
    binding in the absence of an express provision indicating its nonlegal
    nature.
        State Department regulations recognize that this presumption may be
    overcome when there is ``clear evidence, in the negotiating history of
    the agreement or otherwise, that the parties intended the arrangement
    to be governed by another legal system.''
        However, there is no statutory requirement that the executive
    branch notify Congress of every nonlegal agreement it enters on behalf
    of the United States.
        State Department regulations, including the Circular 175 procedure,
    also do not provide clear guidance for when or whether Congress will be
    consulted when determining whether to enter a nonlegal arrangement in
    lieu of a legally binding treaty or executive agreement.
        The primary means Congress uses to exercise oversight authority
    over such nonbinding arrangements is through its appropriations power
    or via other statutory enactments, by which it may limit or condition
    actions the United States may take in furtherance of the arrangement.
                             the iran nuclear deal
        The Iran Nuclear Agreement Review Act of 2015 (P.L. 114-17) is a
    notable exception where Congress has opted to condition U.S.
    implementation of a political commitment upon congressional
    notification and an opportunity to review the compact.
        This act was passed during negotiations that culminated in the
    Joint Comprehensive Plan of Action (JCPOA) between Iran, the United
    States, the United Kingdom, France, Russia, China, and Germany.
        Under the terms of the agreement, Iran pledged to refrain from
    taking certain activities related to the production of nuclear weapons,
    while the other parties have agreed to ease or suspend sanctions that
    had been imposed in response to Iran's nuclear program.
        The agreement does not take the form of a legally binding compact,
    but rather a political agreement which does not purport to alter their
    domestic or international legal obligations.
        The Iran Nuclear Agreement Review Act provided a mechanism for
    congressional consideration of the JCPOA prior to the Executive being
    able to exercise any existing authority to relax sanctions to implement
    the agreement's terms.
        Although the act contemplates congressional consideration of a
    joint resolution of approval or disapproval of the agreement, it does
    not purport to transform the JCPOA into binding U.S. law.
        At most, the President would be authorized (but not required) to
    implement the JCPOA in a manner consistent with existing statutory
    authorities concerning the application or waiver of sanctions.
                          the paris climate agreement
        In 1992 the Senate ratified the United Nations Framework Convention
    on Climate Change (UNFCCC) which created several legally binding treaty
    obligations upon the United States.
        The Majority fails to understand that these treaty obligations,
    however, did not create any quantitative reductions in greenhouse gases
    (GHGs) nor did they create enforceable objectives and commitments to do
    so.
        Importantly, the UNFCCC qualitatively obligates the United States
    to participate in and support international climate change discussions,
    commits the U.S. to work towards reducing its GHG emissions, and it
    signals U.S. agreement with the principal notion that climate change is
    a significant future challenge that must be addressed.
        The UNFCCC itself, however, creates no legally enforceable
    quantitative commitments to reduce GHG emissions.
        Per the UNFCCC, the 21st yearly session of the Conference of the
    Parties (COP21) met in Paris starting on November 30, 2015 and later
    adopted the Paris Agreement as well as a consensus decision intended to
    supplement and give effect to the agreement.
        The stated goal of the agreement is to ``[hold] the increase in the
    global average temperature to well below 2 degrees Celsius about pre-
    industrial levels'' and to pursue ``efforts to limit the temperature
    increase to 1.5 degrees Celsius above pre-industrial levels,
    recognizing that this would significantly reduce the risks and impacts
    of climate change.''
        The Paris Agreement and the decision together create a single
    framework through which all of the parties, including the U.S., would
    work to reduce emissions.
        Significantly, the Paris Agreement contains no quantitative
    emission reduction requirements nor does it contain any enforcement
    mechanisms or penalties for parties who fail to meet their self-
    determined NDC.
        Instead, the agreement expects individual parties to set individual
    GHG emission reduction goals based upon their global contribution and
    their technological and economic capacities.
        The transparency framework under the agreement essentially provides
    the international community with the means to review the seriousness of
    a parties' stated NDC and to hold parties publically accountable for
    failing to set an NDC which will make meaningful progress towards the
    agreement's stated goal.
        Accordingly, the Administration is not constitutionally required to
    present the Paris Agreement to the Senate for ratification as it is not
    a treaty that ``bind[s] the United States to a course of action.''
        Moreover, the Clean Air Act49 and the UNFCCC already provide
    authority for President Obama to carry out the United States' NDC
    commitments under the Paris Agreement.
        With these considerations and facts, the misguided direction of
    this hearing is undeniable.
        In fact, the Majority's own witness, Mr. Kontorovich, acknowledges
    in his concluding testimony that this hearing serves little purpose, if
    none other than to highlight that ``Congressional legislation in these
    areas is typically phrased quite narrowly and is replete with
    exceptions, waiver provisions, and so forth. [And that] much of this is
    justified by the need to provide the Executive with maneuverability in
    the fast-changing currents of world affairs.''
        As a solution, Mr. Kontorovich instructs Congress ``to write
    broader, clearer legislation in the first place''--or to legislate with
    an eye of ``tying the Executive's hands.''
        This solution indecorously encourages Congress to actually violate
    the separation of powers by creating an implausible imbalance tipped to
    Congress.
        The only hands that are tied here are those of the American public,
    as they are denied constructive and effective legislative action by
    their representational body of Congress.
        I urge my colleagues to consider this much in further consideration
    of hearings by this task force and committee.
        Thank you.

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