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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 

( 

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

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

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., 

Wisconsin 

DARRELL E. ISSA, California 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

RON DeSANTIS, Florida 

KEN BUCK, Colorado 

MIKE BISHOP, Michigan 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

CEDRIC RICHMOND, Louisiana 

SCOTT PETERS, California 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

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 

(1) 

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 
2 

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 
3 

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 execu-
11 

tive 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 
12 

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 
13 

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 
14 

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 
15 

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 Pales-
16 

tinian 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 sep-
34 

arate—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 
44 

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. 
57 

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. 
58 

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 Con-
59 

gress’ 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. 
60 

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? 
61 

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 wrongheaded 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 state-
62 

ments 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. 
63 

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 
64 

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. 
65 

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 
66 

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? 
67 

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 openended—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 
68 

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 em-
69 

broil 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.] 

(71) 

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. 
72 

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. 
73 

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. 

Æ