10

Since the controversial withdraw from the Paris agreement, California has taken it upon themselves to sign an agreement with China to continue green technology development.

The Logan Act of 1799 states

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This agreement between California and China

  1. aims to influence the conduct of China with respects to economy and green initiative
  2. aims to defeat the measures that the US government has put forth with our withdrawl from the Paris agreement.

California is overtly driving opposition against the United States government's agenda in an act of defiance with a foreign power.

Is the agreement illegal with regards to the Logan Act?

Edit: The history of the law and where it stems from seems pretty similar.

The Logan Act was basically a response to an effort by a Philadelphia Quaker named George Logan to try to negotiate directly with the French government. This was a big scandal at the time in foreign affairs because Logan—a Democratic-Republican—was trying to thwart the policy of the Federalists, who controlled both houses of Congress and the White House.

— Steve Vladeck of the University of Texas School of Law[4]

Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan's activities in France:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan's conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government's position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan's last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan's actions were not the primary cause of the Directory's actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.[5]

Governor Jerry Brown flew to Beijing and signed a document in an act of defiance against the policy agenda set forth by the US Government.

  • 1
    law.se seems a better place for this. – user9389 Jun 7 '17 at 18:21
  • 4
    I'm voting to close this question as off-topic because the premise is fundamentally wrong, China and California have not signed an agreement , no law has been violated and the question itself is a false premise. Also the title question can't be is this legal? then answer it yourself as this is illegal. Should he go to jail? It reads like your trying to score a political point and not ask a genuine question. – SleepingGod Jun 7 '17 at 18:25
  • 4
    @SleepingGod I think the underlying question is valid so I've updated the question to ask about the legality and changed the prompt for opinions at the end. – JonK Jun 7 '17 at 18:40
  • 1
    It's related not duplicate. The reason we comment in things like this is it appears as linked in the right hand side of the screen so users wishing to learn more about the topic have easy access. – SleepingGod Jun 7 '17 at 18:48
  • 4
    @Mods Edited to remove personal beliefs. Question does involve governments and polices, thus falling with in the scope, contrary to the vote to put on hold. – Lanet Rino Jun 7 '17 at 19:26
2

The Logan Act is over 200 years old. A lot of things have changed since then. The Atlantic noted, in the Michael Flynn scandal, that the Logan Act has never been successfully enforced

The Logan Act is a 1799 law that calls for the fine or imprisonment of private citizens who attempt to intervene without authorization in disputes or controversies between the United States and foreign governments. It has never been used to successfully prosecute any American citizen.

And this direct quote later on

I think part of why it has lain dormant for all this time is a combination of disuse and subsequent intervening developments. There weren’t that many examples into the 19th century of other George Logans doing similar things, and by the time private foreign policy became an issue once more in the 20th century, we had a far-more-powerful First Amendment that was very skeptical of content-based restrictions on speech. We had a modern vagueness doctrine that disfavors criminal statutes where it’s not necessarily what clear what exactly they prohibit. The Supreme Court has basically relegated content-based restrictions, or restrictions on what a person can say, to the dustbin of permissible legislation because it equates them with censorship.

With regards to both points you cite, I think they're overstated

  1. aims to influence the conduct of China with respects to economy and green initiative
  2. aims to defeat the measures that the US government has put forth with our withdrawl from the Paris agreement.

The Paris Agreement could be summed up as countries agreeing to set their own metrics and then achieving them (emphasis mine)

Here’s how the game works: The negotiating framework established at a 2014 conference in Lima, Peru, requires each country to submit a plan to reduce greenhouse-gas emissions, called an “Intended Nationally Determined Contribution” (INDC). Each submission is at the discretion of the individual country; there is no objective standard it must meet or emissions reduction it must achieve.

Beyond that, it’s nearly impossible even to evaluate or compare them. Developing countries actually blocked a requirement that the plans use a common format and metrics, so an INDC need not even mention emissions levels. Or a country can propose to reduce emissions off a self-defined “business-as-usual” trajectory, essentially deciding how much it wants to emit and then declaring it an “improvement” from the alternative. To prevent such submissions from being challenged, a group of developing countries led by China and India has rejected “any obligatory review mechanism for increasing individual efforts of developing countries.” And lest pressure nevertheless build on the intransigent, no developing country except Mexico submitted an INDC by the initial deadline of March 31—and most either submitted no plan or submitted one only as the final September 30 cut-off approached.

The real goal appears to be getting positive press coverage touting the "met goals". Since the goals were set by the countries themselves, meeting them can be effortless and win you lots of praise.

So what did Jerry Brown actually negotiate? I rather liked Panda's summary

The "We Are Still In" campaign is more of a statement than an agreement for concrete action or cooperation. From the press release that they issued, it's basically to "declare that we (they) will continue to support climate action to meet the Paris Agreement"

From the Memorandum itself

Cooperation between the Participants will be based on a mutual understanding of shared issues and concerns of the governments and citizens of California and the People’s Republic of China as they relate to research, innovation, and commercialization of clean technologies.

So the Cal-China deal, more or less, involves a state working out a trade deal with China that happened to include environmental goals for California. California has set a Paris-style goal for themselves and China will keep the ones they've set for themselves. I'm not sure anything really changes with regards to China's Paris policies, but they didn't mean much to begin with.

TL;DR Brown asked China to keep on doing what they were already doing under a symbolic policy negotiated by President Obama. Doesn't seem likely to run afoul of the Logan Act.

  • Laws don't expire unless there is an included expiration date. The Constitution is over 200 years old. – Drunk Cynic Jun 15 '17 at 14:33
  • 1
    @DrunkCynic No, but interpretations of laws do. It seems unlikely that SCOTUS would uphold a Logan Act conviction against someone who was merely negotiating how another country would help your state meet its own environmental goals. Remember, Trump withdrew the US from the Paris Agreement. He didn't tell anyone they couldn't encourage countries to continue participating. – Machavity Jun 15 '17 at 14:40
  • If interpretations of laws change, then how are individuals to ever trust that the actions they are taking are legal? If interpretations change, what is perfectly legal today could be illegal tomorrow. Words mean what was written, when it was written. If the interpretation, or in actuality the laws intended result, needs to be changed, amend or repeal/replace the law. – Drunk Cynic Jun 15 '17 at 16:35
  • @DrunkCynic Over 200 years I would expect some change. The point in the article was that limiting Logan's speech was perfectly acceptable in 1799, but in 2017 it's much murkier. The law is so broad you could prosecute an American who visited London and yelled at the PM to resign. – Machavity Jun 15 '17 at 17:03
2

No, it does not seem to violate the Logan Act.

  1. States negotiate understandings with foreign governments all the time. They are perfectly valid as long as they do not circumvent existing US laws, usually to facilitate markets for state industries and/or to encourage foreign investment in their state. To the degree that these do not bind the US federal government or other states, and that they are not circumventing restrictions on dealing with those countries, they do not violate the Logan Act.

State of Washington: Trade Missions

  1. Does California telling China that they are going to abide by state standards that are higher than federal standards bind the Federal government to do the same? No.

  2. Does California choosing to restrict CO2 within their state circumvent US policy? Unless you are claiming that Trump, by withdrawing from the voluntary Paris standards, is requiring that states emit more CO2 (are you claiming that?), then, no, they are not circumventing US policy.

Generally speaking, most US laws set federal minimums, unless they specifically restrict states from setting higher standards. Federal minimum wage can legally be exceeded and required by states, individually. Minimum amount of paid and unpaid leave that must be allowed under Family Medical Leave Act standards can be exceeded by minimum state requirements.

Forbes: States with a higher minimum wage than federal

State Family and Medical Leave Laws

Since the agreement outlined in the question does not bind any other states or the federal government, does not conduct US foreign policy contrary to US policy, and does not engage in any kind of prohibited contact or activities, it would not appear to circumvent the Logan Act. Governor Brown is legally authorized to act on behalf of his state, alone, in this way.

State of California:California signs accord with China for green technology

protected by Community Jun 7 '17 at 19:01

Thank you for your interest in this question. Because it has attracted low-quality or spam answers that had to be removed, posting an answer now requires 10 reputation on this site (the association bonus does not count).

Would you like to answer one of these unanswered questions instead?

Not the answer you're looking for? Browse other questions tagged or ask your own question.