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CRS Reports & Analysis
Legal Sidebar
Constitutional Limits on States' Efforts to Uphold the
Paris Agreement
06/27/2017
Following President Trump's June 1 announcement that the United States will withdraw from the Paris AgrQ-ent-an
international pact intended to address climate change over the coming century-some American citiend t have
promised to pursue the Agreement's goals even after U.S. withdrawal. But with c ni tion I limi on the power of
states to make legally binding treaties and compacts with foreign nations (discussed below), and num rua Supreme
L d opinions stating that the federal government has superior power over the states in the field of foreign affairs, a
commen1ators have raised the question: does the Constitution allow state and local governments to uphold the Paris
Agreement? This Sidebar addresses two potential limits on state and local action on this matter: Artid 1 Seaion 10 of
the Constitution and foreign affairs i.
What Actions have State and Local Governments Taken with Respect to the Paris Agreement?
Since the President's June 1 announcement, a multitude of states and Iocli i have formed ali and issued
decarations expressing their support for the Paris Agreement. In addition, California and China recently signed a
nonbinding Memorandum of Lutnrstan in (MOU) pledging to cooperate and share information on a number of
climate-related topics. (Similar MOIJs had been signed before the withdrawal.) On June 6, the Governor of Hawaii
signed two bills that his office e as supporting the Paris Agreement: Hawaii Snat, Bill 559 requires the State to
expand strategies to reduce greenhouse gas emissions, and Hawaii Bil 1578 creates a carbon farming task
force. Well before the Paris Agreement came into existence, a had enacted some form ofl intended
to address climate change, and some had engaged in Linernation&l or in rtt climate initiatives. But the express
statement of purpose in Hawaii's latest leit support[ing] the goals of the Paris Agreement [r]egardless of
federal action-may be a distinguishing feature.
Limits on States' Power to Enter into Legally Binding Pacts with Foreign Nations
In the context of states' efforts to enter into legally binding pacts with foreign nations, two clauses in Arlicle 1 Stion
10 of h Cni n place limits on states' power. Clause 1 provides that No State shall enter into any Treaty,
Alliance, or Confederation; and Clause 3 (commonly known as the Cc t-Cpausi) provides that No State shall,
without the Consent of Congress... enter into any Agreement or Compact with another State, or with a foreign
Power[.] Whereas Clause 1 appears to create an unqualifi rohi ition on any Treaty, Alliance, or Confederation,
the Compact Clause conditionally allows states to make Agreements or Compacts with foreign nations provided they
receive congressional consent.
In practice, the interpretation of Article I, Section 10 is more varied and complex than its text suggests. In an 1840
Supreme Court decision, Holmes v. ,_etnison, four Justices concluded there is an essential distinction between the types
of relationships that are categorically prohibited by Clause 1 versus those that must be approved under the Compact
Clause. But the ,Jennison Court did not reach a majority opinion, and there is no definitive judicial dcision or scholarly
consensus on how to differentiate between the treaties, alliances, confederations, and compacts addressed in Article I,
Section 10.](ViewImageLocal?handle=hein.crs/crsmthmbcrf0001&div=1&collection=&method=preview&ext=.png&size=3)