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Climate Security and Presidential Constitutional Responsibility

SouthPorticoBy Bishop Garrison, Policy Fellow

In my recent essay for the UC Hastings Constitutional Law Quarterly, as well as a follow-on piece for Inkstick Media, I discussed why under the constitution the president has a responsibility to confront climate change. Climate change is having a true effect on the world, reshaping how we live and operate. Decades ago, the national security community identified climate change as a threat to our safety and operations. Recently, the Department of Defense reaffirmed its belief in this threat. If national security experts have identified this issue over years of study and debate, then the President of the United States has an affirmative duty under the constitution to protect against it. This analysis is taking from my essay.

Commander in Chief Clause and the Take Care Clause

The national security apparatus of this country has long held the view that climate change and its effect on the environment is a threat to military operations and national security. It follows, then, that the president, from a legal and apolitical position, has an established constitutional duty under Article II, Section 2, and Article II, Section 3—the Commander in Chief Clause and Take Care Clause respectfully—to ensure that policies are in place and laws are followed in combating climate change and ensuring American climate security. The president has a constitutional obligation to Congress see that any law regarding climate change is properly enforced within the range of his or her power.

The Constitutional Role of Congressional Oversight

Congress has the constitutional duty of oversight to ensure that the president upholds his or her obligations. The Tax and Spending Clause and the Appropriation Clause ensure that Congress has the power to oversee the lawful duties of the executive and its representatives. Through the Necessary and Proper Clause, Congress has the sole power to make laws and see to their proper execution.

Furthermore, the Supremacy Clause requires that the president adhere to the terms provided by any officially signed and ratified treaty that has been implemented domestically by federal legislation. There may be a colorable argument that treaties that have been signed require the president to continue to act in good faith by doing all he or she can to have the Senate pass a resolution to ratify the treaty and have Congress pass implementing legislation. Failure to do so violates the spirit of the president’s authority under the Supremacy Clause, the spirit of the treaty, and is likely to hurt American foreign relations and the country’s prominence in the international community. Both factors affect the nation’s interests abroad as relationships are key to economic interests in other countries as well as the assets necessary to achieve future outcomes. Overall, these constitutional powers are designed to ensure that the president adheres to his or her own responsibilities while acting within the limits of the office’s powers. It follows, then, that given the importance associated with the destructive nature of climate change, Congress should do all it can to ensure the president confronts the danger.

Climate change is very real and threatens our safety, our interests and those of our allies abroad. It is paramount that the president and his duly appointed representatives address this threat immediately before additional permanent damage is done. It is not simply an obligation or a novel policy perspective, but the legal responsibility of the chief executive of this country.

1 Comment

  1. Dr. Vlad Fomin says:

    The long-term practice of ensuring climate security – showed that activities under the Kyoto Protocol and the Paris climate agreements are futile. The US president is right, legally ignoring the documents mentioned. However, in my opinion, the point he has set is not sufficient: decisive measures must be taken. At least – in two spaces of climate conditions that ensure the country’s security: in peacetime and – in the preparation and conduct of hostilities.
    For peacetime, it is sufficient to stabilize the climate in the Northern Hemisphere of the Earth, establishing the main reasons that provided the climatic conditions of the beginning of the XVIII century and to organize their impact on the climate at the present time. At a minimum, humanity will receive three centuries of stable climate.
    When conducting military operations – it may be sufficient to have a negative impact on the enemy’s local territories (lower layers of the atmosphere), where anti-aircraft (anti-missile) defense complexes or launching pads of attack vehicles are located.
    I believe that the solution of these problems (the implementation of appropriate technologies … at the right time) will largely ensure the country’s security. It’s up to the President.

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