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When Should Really Means Shall

December 14, 2015

By: Stephen Waguespack

Lawyers love to fight about the nuances and subtle distinctions in the English language in order to achieve a specific result. Politicians do as well. 

In the last legislative session and throughout this fall’s gubernatorial campaign, politicians have argued a clear distinction between the words “tax” and “revenue.”

While most politicians go out of their way to proclaim their opposition to new “tax” increases, many find a clear distinction in their support for new “revenue” increases for government. While both proposals directly lead to money coming out of taxpayers’ pockets, the subtle nuance is a critical messaging point to articulate for those who put their name on the ballot.

One of the more famous examples of this type of legal wordsmithing is when an American attorney named Bill Clinton famously argued for a subtle, more nuanced distinction of the word “is” in order to justify his previous comments to White House aids during testimony to a grand jury.

President Clinton stated in his deposition that, “It depends on what the meaning of the word 'is' is. If the – if he – if 'is' means is and never has been, that is not – that is one thing. If it means there is none, that was a completely true statement…”

Just this week, U.S. Secretary of State John Kerry, also an attorney by trade, has shown once again the importance of fighting over the subtle, distinctive meaning of a single word.

Representatives from 195 countries convened in Paris this week to affirm an accord on climate change. This accord, driven by the United Nations, requires “rich” countries to appropriate a minimum of $100 billion per year to mitigate climate change and report on these expenditures and plans to continuously lower emissions every five years. The stated goal of this effort is to lower temperatures by two to four degrees by 2030 – an overly optimistic target when scientists vigorously debate whether taking all of these proposed actions can even make such an impact.

If the United States complies with just the low-end cost estimate of this mandate, it will require at least one trillion five hundred billion dollars in new spending over the next 15 years.

No president should have the authority to unilaterally obligate taxpayers to that level of spending on their own. Congress must have a key role in a spending mandate of this magnitude. 

As we all know, Congress has the appropriation power in the federal government, a power that is clearly articulated in Article I, Section 9, Clause 7 of the U.S. Constitution. Considering the size of the federal deficit, the escalating costs associated with entitlements and the stagnation of the American economy, Congress will want to carefully examine the details of the new climate accord and its spending mandates to ensure it is the appropriate policy for the United States. 

However, thanks to some last-minute negotiations by Secretary of State Kerry over a single word in the climate accord, Congress may not get the chance to do so.

In the few hours before the climate accord was to be signed by the participating countries, lawyers for Secretary Kerry found a single word that had to come out. In fact, the American lawyers threatened to blow up the entire agreement if this one word was not removed.

The draft said that the “rich” countries like the United States “shall” set aggressive targets for cutting their emissions beyond their current levels. Secretary Kerry’s lawyers wanted “shall” to be replaced with “should” for a very important reason:  “shall” would definitely require Congressional approval of the accord; “should” in the minds of Secretary Kerry’s lawyers does not.

Secretary Kerry and President Obama know that Congress will likely not support this agreement, so they want to find any way possible to implement it through the agencies and without Congressional involvement.

Congress will want to ask questions about how we are supposed to pay for a mandate of this magnitude. They will want to know how the administration plans to stop China from simply ignoring these mandates like they have in previous agreements. They will want to discuss the impact on the American economy that will occur by greatly restricting our current energy supply infrastructure. They will want to review the science behind the assumptions made in the document and hear testimony from competing expert opinions.

The administration wants none of that debate and oversight, which is why they demanded the last-minute word change.

The administration thinks the word “should” allows them to avoid all meddlesome questions that will just make it too difficult to spend the one trillion five hundred billion dollars needed to implement this deal. With “should” in the deal, they think they “shall” have all the authority they need to move forward.

The American worker that depends on a strong U.S. economy deserves better treatment than this. It doesn’t matter what the lawyers in that Paris ballroom think, the administration needs to bring this accord to Congress for approval before attempting to unilaterally implement it through federal agencies.

That IS the right thing to do…no matter how you define “is.”