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)

This memorandum by the Center for International Environmental Law (CIEL) critiques a March 25, 2004, Department of Justice (DOJ) letter which argued that mandatory notice and comment provisions in proposed implementing legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs) would unconstitutionally infringe upon the President's treaty-making powers.

• 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 POPs chemicals to the treaty. These notices would provide general information, a synopsis of domestic regulatory implications, and invite public and industry information. This information would then form part of the rulemaking record if the U.S. supported the amendment and initiated domestic regulation.
• The Department of Justice (DOJ) argued that the Executive Branch has sole authority over international negotiations, concluding that Congress cannot require the President to consult with any party while preparing to cast a vote in an international negotiation. CIEL contends this reasoning relies on a flawed syllogism and a misinterpretation of United States v. Curtiss-Wright Corp., as the court in that case did not address whether requiring public comment for a domestic rulemaking record is equivalent to negotiation.
• CIEL asserts that the DOJ's claim of a long history of objecting to statutory consultation requirements is unsupported. CIEL notes that the Trade Act of 2002 requires the President to notify and consult with Congress before initiating trade promotion negotiations, and that President Clinton did not object to requirements to consult with human rights organizations and government agencies when negotiating bilateral financial assistance agreements in 2001.
• The Bush Administration raised concerns regarding an 'international nondelegation doctrine,' suggesting that making domestic implementation contingent on international events unconstitutionally delegates legislative power to international bodies. CIEL argues this theory is 'fatally flawed' because Congress, not the international body, establishes the law and the conditions for its implementation.
• CIEL identifies several existing U.S. laws that use contingent delegations based on international decisions, arguing these prove such mechanisms are constitutionally acceptable. Examples include 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 (Codex Alimentarius Commission).

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} }