Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs)

The Center for International Environmental Law (CIEL) argues that the Bush Administration's claims regarding the unconstitutionality of notice and comment provisions in S. 1486 have no basis in U.S. law. The DOJ asserted that requiring the Executive Branch to consult with stakeholders during international negotiations violates the separation of powers. CIEL counters that such provisions do not dictate negotiation outcomes and that Congress has the authority to regulate the domestic acquisition of information. Furthermore, CIEL rejects the 'international nondelegation doctrine' invoked by the Administration, noting that U.S. law frequently contains contingent delegations based on international decisions, such as in the Clean Air Act and the Chemical Weapons Convention Implementation Act.

• The proposed notice and comment provisions in S. 1486 (the POPs, LRTAP POPs, and PIC Implementation Act of 2003) would require the EPA to publish Federal Register notices at three stages of the international process for adding chemicals to the Stockholm Convention, inviting public information and industry data to build a potential domestic rulemaking record.
• The Department of Justice (DOJ) argues that the Executive Branch has sole authority over international negotiations and that Congress cannot constitutionally require the President to consult with any party while preparing to vote in such negotiations.
• CIEL contends that the DOJ's reliance on United States v. Curtiss-Wright Corp. is flawed because the case did not address whether requiring public comment for a domestic rulemaking record is equivalent to conducting an international negotiation.
• CIEL argues that the domestic regulation of toxic chemicals falls under the enumerated powers of Congress to regulate commerce with foreign nations, meaning a mandate for the EPA to acquire information does not violate the separation of powers.
• Analysis of signing statements from Presidents Clinton and Bush suggests that while both objected to being told how to vote in international fora, only President Bush objected to statutory requirements to consult with human rights groups or Congress.
• The Bush Administration's 'international nondelegation doctrine'—the idea that making domestic law contingent on an international event unconstitutionally delegates legislative power—is rejected by CIEL as legally unfounded.
• CIEL identifies several existing U.S. laws that use contingent delegations based on international body decisions, including the Clean Air Act (Montreal Protocol), the Tariff Act (NAFTA), the Chemical Weapons Convention Implementation Act, the Comprehensive Drug Abuse Prevention and Control Act of 1970, and the Federal Food, Drug, and Cosmetic Act.

APA

Wiser, G. (2004). Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs). Center for International Environmental Law. https://www.ciel.org/news/ciel-confirms-that-bush-administrations-claims-on-constitutionality-of-proposed-stockholm-convention-legislation-have-no-basis-in-u-s-law/

Chicago

Wiser, Glenn. Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs). Center for International Environmental Law, 2004. https://www.ciel.org/news/ciel-confirms-that-bush-administrations-claims-on-constitutionality-of-proposed-stockholm-convention-legislation-have-no-basis-in-u-s-law/.

Wikipedia

{{cite report |last1=Wiser |first1=Glenn |title=Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs) |publisher=Center for International Environmental Law |date=1 April 2004 |url=https://www.ciel.org/news/ciel-confirms-that-bush-administrations-claims-on-constitutionality-of-proposed-stockholm-convention-legislation-have-no-basis-in-u-s-law/ |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{wiser2004analysis, author = {Wiser, Glenn}, title = {{Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs)}}, institution = {Center for International Environmental Law}, year = {2004}, month = apr, url = {https://www.ciel.org/news/ciel-confirms-that-bush-administrations-claims-on-constitutionality-of-proposed-stockholm-convention-legislation-have-no-basis-in-u-s-law/}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }