Tuesday, October 29, 2019
Can California Enter into a Cap-and-Trade Agreement with Quebec?
That's the question raised in a lawsuit filed by the United States last week in the Eastern District of California. The U.S. seeks a declaration that the agreement is unconstitutional and a permanent injunction to halt its operation.
The case, U.S. v. California, tests California's cap-and-trade agreement with the provincial government of Quebec, Canada. The federal government argues that the agreement violates the Treaty Clause (prohibiting states from "enter[ing] into any Treaty, Alliance, or Confederation"), the Compact Clause (prohibiting states, without congressional consent, from "enter[ing] into any Agreement or Compact . . . with a foreign Power"), and the Foreign Commerce Clause. It also contends that the agreement impermissibly interferes with the federal government's powers over foreign affairs.
This intrusion complexifies and burdens the United States' task, as a collective of the states and territories, of negotiating competitive international agreements. Moreover, California's actions, as well as the actions of those acting in concert with it, have had the effect of enhancing the political power of that state vis-a-vis the United States. This is due not only to the effect of the Agreement itself but also stems from the fact that the Agreement could encourage other states to enter into similarly illegal arrangements.
The design of the Constitution requires that the federal government be able to speak with one voice on behalf of the United States in matters of foreign affairs. Allowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is thus anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States' ability to negotiate competitive international agreements.