[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
         
         
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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:]
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    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:]
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                               __________
                               
    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:]
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                               __________
                               
    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:]
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                               __________
    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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