House Debating the Constitutionality of Presidential Termination of Treaties

CSPAN ^ | 6-6-2002 | Huck

[Huck]

A Congressman from Ohio has introduced a resolution expressing that the President should respect Congressional prerogative in cancelling treaties. Congressman Hyde is objecting, saying that the House has no Constitutional role in treaty making or treaty breaking. Rep. Nadler and Rep. Jackson-Lee have chimed in arguing for the powers of Congress. Specifically at issue is President Bush's announced intention to withdraw--without the consent of the Senate or House--from the ABM Treaty of 1972.

Obviously, this is politically motivated. Those who want to see the US withdraw from the treaty argue that the President has the power to do so. Those who are opposed to the withdrawal argue that he cannot do so without the consent of the Congress. All of which led me to wonder: What is the correct Constitutional answer on this question?

Historically, treaties have been terminated by all the possible combinations, and arguments exist for each mode, which I will post at the bottom of this post, but can be summed up as follows:

1. The President can withdraw without consent from the Senate or House, exercising his power over foerign relations.

2. The Constitution says all treaties are the "supreme law of the land." Since only Congress can repeal laws, the President does not have the power to terminate a treaty.

3. Since the Constitution requires consent of the Senate to make treaties, it can be inferred that the Senate must consent to a termination of a treaty.

The Democrats today are asserting #2, the GOP #1. The Chair has ruled in favor of Rep. Hyde, the Dems have appealled, and the GOP has made a motion to "lay the appeal on the table"(parlamentary-speak for "fuggeddaboutit"). They are currently voting.

I thought some of the other history buffs or process geeks might find this question interesting. Now, I will post the synopsis of the arguments of this question, and a link:

US Gov Printing office

Termination of Treaties by Notice.--Typically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties?\351\ Reasonable

[[Page 488]] arguments may be made locating the power in the President alone, in the President-and-Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is as well required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.

\351\The matter was most extensively canvassed in the debate with respect to President Carter's termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979). On the issue generally, see Restatement, Foreign Relations, op. cit., n.262, Sec. 339; CRS Study, 158-167; L. Henkin, op. cit., n.315, 167-171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties--The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger, The President's Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577 (1980). ---------------------------------------------------------------------------

Definitive resolution of this argument appears remotely possible. Historical practice provides support for all three arguments, and the judicial branch seems unlikely to essay any answer.

While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a public law, many instances may be cited of congressional actions mandating terminations by notice of the President or changing the legal environment so that the President is required to terminate. The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846,\352\ when by joint resolution Congress authorized the President at his discretion to notify the British government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only through action of Congress.\353\ Subsequently, Congress has often passed resolutions denouncing treaties or treaty provisions, which by their own terms were terminable on notice, and Presidents have usually, though not invariably, carried out such resolutions.\354\ By the La Follette-

[[Page 489]] Furuseth Seaman's Act,\355\ President Wilson was directed, ``within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties,'' and the required notice was given.\356\ When, however, by section 34 of the Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, with which the Act was not in conflict but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he ``did not deem the direction contained in section 34 . . . an exercise of any constitutional power possessed by Congress.''\357\ The same attitude toward section 34 was continued by Presidents Harding and Coolidge.\358\

\352\Compare the different views of the 1846 action in Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 160-162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), and in Taiwan, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 300 (memorandum of Senator Goldwater). \353\S. Crandall, op. cit., n.264, 458-459. \354\Id., 459-462; Q. Wright, op. cit., n.302, 258. \355\38 Stat. 1164 (1915). \356\S. Crandall, op. cit., n.264, 460. See Van der Weyde v. Ocean Transp. Co., 297 U. S. 114 (1936). \357\41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 Am. J. Int'l. L. 33 (1921). In 1879, Congress passed a resolution requiring the President to abrogate a treaty with China, but President Hayes vetoed it, partly on the ground that Congress as an entity had no role to play in ending treaties, only the President with the advice and consent of the Senate. 9 J. Richardson, op. cit., n.42, 4466, 4470-4471. For the views of President Taft on the matter in context, see W. Taft, The Presidency, Its Duties, Its Powers, Its Opportunities and Its Limitations (New York: 1916), 112- 113. \358\Since this time, very few instances appear in which Congress has requested or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be Sec. 313 of the Anti-Apartheid Act of 1986, which required the Secretary of State to terminate immediately, in accordance with its terms, the tax treaty and protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L. 99-440, 100 Stat. 3515, 22 U.S.C. Sec. 5063. ---------------------------------------------------------------------------

Very few precedents exist in which the President terminated a treaty after obtaining the approval of the Senate alone. The first occurred in 1854-1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark.\359\ When the validity of this action was questioned in the Senate, the Committee on Foreign Relations reported that the procedure was correct, that prior full-Congress actions were incorrect, and that the right to terminate resides in the treaty-making authorities, the President and the Senate.\360\

\359\5 J. Richardson, op. cit., n.42, 279, 334. \360\S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7. The other instance was President Wilson's request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 Cong. Rec. 1793-1794 (1921). See CRS Study, op. cit., n.262, 161-162.

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[[Page 490]]

Examples of treaty terminations in which the President acted alone are much disputed with respect both to facts and to the underlying legal circumstances.\361\ Apparently, President Lincoln was the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action.\362\ The first such action by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an 1850 treaty with Switzerland, but the action may be explainable as the treaty being inconsistent with a subsequently enacted law.\363\ Other such renunciations by the President acting on his own have been similarly explained, and similarly the explanations have been controverted. While the Department of State, in setting forth legal justification for President Carter's notice of termination of the treaty with Taiwan, cited many examples of the President acting alone, many of these are ambiguous and may be explained away by, i.e., conflicts with later statutes, changed circumstances, or the like.\364\

\361\Compare, e.g., Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), with Taiwan, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 300-307 (memorandum of Senator Goldwater). See CRS Study, op. cit., n.262, 164-166. \362\13 Stat. 568 (1865). \363\The treaty, see 11 C. Bevans, Treaties and Other International Agreements of the United States of America (Washington: 1970), 894, was probably at odds with the Tariff Act of 1897. 30 Stat. 151. \364\Compare the views expressed in the Hansell and Goldwater memoranda, op. cit., n.361. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld, The Power of Congress and the President in International Relations, 25 Calif. L. Rev. 643, 658-665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 Minn. L. Rev. 879 (1958). ---------------------------------------------------------------------------

No such ambiguity accompanied President Carter's action on the Taiwan treaty,\365\ and a somewhat lengthy Senate debate was provoked. In the end, the Senate on a preliminary vote approved a ``sense of the Senate'' resolution claiming for itself a consenting role in the termination of treaties, but no final vote was ever taken and the Senate thus did not place itself in conflict with the President.\366\ However, several Members of Congress went to court to contest the termination, apparently the first time a judicial resolu

[[Page 491]] tion of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.\367\ While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.\368\

\365\Note that the President terminated the treaty in the face of an expression of the sense of Congress that prior consultation between President and Congress should occur. 92 Stat. 730, 746 (1978). \366\Originally, S. Res. 15 had disapproved presidential action alone, but it was amended and reported by the Foreign Relations Committee to recognize at least 14 bases of presidential termination. S. Rept. No. 119, 96th Congress, 1st sess. (1979). In turn, this resolution was amended to state the described sense of the Senate view, but the matter was never brought to final action. See 125 Cong. Rec. 13672, 13696, 13711, 15209, 15859 (1979). \367\Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because of the political question doctrine, id., 1002, but one other Justice in the majority and one in dissent rejected this analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine. \368\Cf. Baker v. Carr, 369 U.S. 186, 211-213, 217 (1962). ---------------------------------------------------------------------------

[Huck]

Maybe I am crazy, but I find this fascinating. Say what you will about Jerry Nadler debating Constitutional limitations of power, it does show that despite what people say, the Constitution does still matter. Incidentally, the neo-rebs might be interested to know who the first President was to terminate a treaty without the consent of Congress: You get one guess.

[Huck]

Does this interest you at all? Incidentally, upon a cursory examination, and having listened to the debate, I find the GOP argument weak. It is clear to me that both sides are biased by their attitude towards the ABM treaty. However, it seems to me the most compelling argument, and perhaps the most republican, is that the Constitution does say that treaties are laws, and the power to repeal laws resides in both</> houses of Congress combined.

[Real Cynic No More]

"Incidentally, the neo-rebs might be interested to know who the first President was to terminate a treaty without the consent of Congress."

Unless I am mistaken, the treaty was never ratified. If so, the treaty was not in effect from a legal standpoint anyway, but was only a voluntary issue. So the president terminating it gives the Senate no standing.

Are these libs conceding that the President may make a treaty enforceable if they never ratified it???

Congress does so many things like this, leaving the ball up in the air, then tries to take credit: such as not declaring wars when they have an obligation to do so.

[mlo]

The ABM treaty was ratified, but it contains an escape clause which Bush used. Since the treaty is the law of the land the escape clause it contained was law too, and Bush needed no further authority, as long as he followed the procedure the treaty outlined.

[Lurking Libertarian]

Unless I am mistaken, the treaty was never ratified.

No, you're thinking of the International Criminal Court treaty, which was signed but never ratified. This is about the 1972 ABM Treaty, which was ratified by the Senate.

[hchutch]

If this is a guy from Ohio, I bet it's Kucinich (spelling may be off). A REALLY left-wing Democrat. Knocked off Martin Hoke in `96.

[Huck]

The ABM treaty was ratified, but it contains an escape clause which Bush used. Since the treaty is the law of the land the escape clause it contained was law too, and Bush needed no further authority, as long as he followed the procedure the treaty outlined.

Here is the so-called "escape clause", from the ABM Treaty:

. Each Party shall, in exercising its national sovereignty, have the right to withdraw from thisTreaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.

So, who are the parties to the treaty? Is it your contention that President Bush is a party to the treaty? If so, you are mistaken. Look at the first sentence of the actual treaty:

The United States of America and the Union of Soviet Socialist Republics, hereinafter referred to as the Parties,

In fact, wasn't it the argument of many conservatives that one of the parties, the USSR, no longer exists, and therefore, the treaty is null and void? Or is Vladimir Putin the other party? You can't have it both ways. It seems to me, though I don't know if it is anywhere in writing, that the US has continued the treaty with Russia, as if it were the other party. IMO, the argument that the disolution of the USSR nullified the treaty has some merit. At least I am not aware of the counterargument. But you simply can't argue that the treaty provides for the President of the US to withdraw on his own. It doesn't.

[Huck]

That's who it was. While they will lose this argument due to numbers, it seems to me---hard to believe I know---the lefties were correct in their argument. It just goes to show that in politics, the ends justify the means.

[bloggerjohn]

USSR or Russia, I will invoke the hallowed principle that the treaty follows the nukes ;')

[conservatism_IS_compassion]

I guess I glaze over pretty easily when a writer has two hands--"on the one hand", but "on the other hand."

It seems scary, and in a real sense illogical, but when I see the term "supreme law of the land" I think, "Constitution." Clearly nobody intended, let us hope, that the president and the Senate alone could modify the First Amendment (for example) without so much as a by-your-leave from the States. But that's what pops into my head.

OTOH it would seem that if a treaty is in fact a "law" it would be backed by Congress as well as the president. Yet the House has no role in treaty making, and the president is alone responsible for foreign policy unless a treaty is to be ratified. But what is a treaty with the US, if a new president can on his word alone abrogate it six months after the signing/ratification? Some "supreme law"!!

This whole issue is quite similar to the war powers issue: it's gotten to the point where presidents who feel like fighting--or, say, bombarding asperin factories--just do it. The role of the Congress is much attenuated. But if the Congress did ever declare war, what role would it have in terminating that emergency state?

Worst of all, of course, is the nonsequeteur known as the 17^th Amendment, which converted the Senate from representatives of the States to representatives of the people of the states. The whole rationale of the Senate was, after all, to represent the State governments; now it's just a funny way of districting a second house of the legislature. And, since no State may be deprived of its equal representation in the Senate without its consent, it really required unanimous consent of the states to properly ratify that amendment.

Which gets me onto one of my hobby horses, the fact that the Senate would do its job better if it conducted its business electronically from the respective State capitols . . . and then you wouldn't need seperate elections for Senators; each State could be represented by its own Governor.

Then if a president were impeached he would be judged by a jury of his peers--and if a judge were nominated or impeached, that judge's respect for the States' prerogatives would be taken into consideration much as it was before the states allowed the 17^th Amendment to be implemented.

There really should be some change in the Constitution (or at the very least a landmark Supreme Court precedent) to reflect the lessons we should have learned from the machinations of x42 . . .

[hchutch]

I disagree. I think that the execution of foreign policy is left to the Executive Branch for the most part, IMHO.

[Huck]

Regarding the dissolution of the USSR, I found this blurb from BBC News:

Following the 1991 dissolution of the Soviet Union, Belarus, Kazakhstan, Russia and Ukraine ratified the treaty and took on its obligations.

The Heritage Foundation chimes in here:

THE ABM TREATY WITH RUSSIA: THE TREATY THAT NEVER WAS

A much better argument, and interesting to read, but not related to the question of how treaties may be terminated under the Constitution. I believe, based on my reading of the arguments, that Congress should do it.

[Huck]

I think that the execution of foreign policy is left to the Executive Branch for the most part, IMHO.

But you won't find that in writing. It is an "implied" power, whereas the power to make treaties is specifically limited, and the status of treaties as "law" is explicitly expressed.

[Huck]

The Supremacy clause is pretty clear:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Treaties, therefore, are laws. That's the first part of the argument. Next we go to the "necessary and proper" clause in Article One: The Legislative Powers:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

So what power does the President have to make treaties?

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;

That's all. If memory serves me, President Bush professes to be a strict constructionist. Not in this case, he isn't.

[hchutch]

The President can take a foreign policy action. If Congress does not like it, they can pass a law or Joint Resolution prohibiting such actions, subject to the President's veto.

[Huck]

The President can take a foreign policy action.

Can you show me what Constitutional power you are referring to? I can't find it.

[Huck]

This whole issue is quite similar to the war powers issue: it's gotten to the point where presidents who feel like fighting--or, say, bombarding asperin factories--just do it.

I think this is one of those "foreign policy actions" hchutch is granting to the Presidential power.

[general_re]

I'm with you - I've never found the Article II/Curtiss-Wright argument to be particularly persuasive. It seems clear to me that if the making of a treaty requires Senate approval, then Senate repeal ought to be a component of withdrawing from treaties. The executive does not have the power to unilaterally withdraw the US from treaties, IMO.