House Debating the Constitutionality of Presidential Termination of Treaties

In terms of backing out of a treaty, especially one with an "out" clause like the ABM Treaty, it seems to me the President has the authority to do so

The "out clause" is irrelevant. No one is arguing whether or not the ABM treaty provides for withdrawal of one or other of the parties. It does. But the ABM treaty in no way provides for the manner in which the United States makes its decisions regarding the treaty. That is left to the sovereignty of the United States to decide. The question then, is not if the United States may withdraw, but how the government, according to its own supreme law, may withdraw.

Well, then a resolution of disapproval should be forthcoming from a Senator or member of the House, subject to a Presidential veto. The same way laws are made.

It has an escape clause

That's a weak argument. The so-called escape clause merely stipulates the conditions under which the United States may withdraw. If your position is that the President may unilaterally act on behalf of the United States, regardless of the Constitution, then you desire a King. Else, show me in the so-called escape clause where it says the President needn't get consent from Congress.

Well, then a resolution of disapproval should be forthcoming from a Senator or member of the House, subject to a Presidential veto. The same way laws are made.

Someone in the House presented a resolution, which was disposed of by the GOP majority. As long as Presidential abuse of power serves the party interest, it appears to be sufferable to the members of Congress. But by your model, a President may violate the Constitution whenever he chooses, and if the Congress passes a resolution calling him to task for it, he may veto it. That's crazy!

What I meant is that the argument goes that since Senate consent(2/3) is required to ratify a treaty, it can be inferred that consent(2/3) is required for withdrawal. That is, I take it, your position. It may be the right one.

It is. ;)

Seriously, then I just misread your post. That is my contention. Senate ratification is required to enable a treaty, and Senate consent should be required to withdraw from a treaty - unless, as mlo suggests, the treaty or any attendant legislation makes it clear that it can be nullified by the executive alone. This would be a proper and acceptable delegation of authority by the legislative to the executive, IMO, in that case. Or, I suppose we could imagine a blanket delegation of the authority to withdraw from treaties, but that seems unlikely.

I am not sure how that fits with the fact that, once enacted, treaties are law.

They are law, but not of the same sort as ordinary statute law. The process of creating treaty law differs from statutory law, and so does the process of removing treaty law. The Constitution is also law, but it requires yet another process to add provisions, or to remove provisions. This just means that the provisions of the Constitution and law from treaties are both a different sort of law than statute, and are treated differently.

See #39. It seems you have some heavyweights on your side.

It probably should have occurred to me (duh), but there's plenty of case law on this already. Try Reid v Covert, 354 US 1 (1957), Whitney v US, 124 US 90 (1888), Botiller v Dominguez, 130 US 238 (1889), Clark v Allen, 331 US 503 (1947), Moser v US, 341 US 41 (1951) and on and on and on.

The position of the courts has always been that a treaty is on a par with statutory law, and therefore treaties may be amended or modified at any time by simple legislative action. Congress may always pass a regular old law that nullifies some part of a treaty at will. By extension, one would expect that the Congress could nullify a treaty entirely by the simple passage of legislation to that effect. That would seem to require bicameral action, and a presidential signature, the same as any other legislation, but it would not require a supermajority.

I'll go with SCOTUS's take on this. The Congress of the United States, by simple legislation, may amend (or repeal) any treaty, in part or in whole. The President may not unilaterally withdraw from treaties any more than he may unilaterally nullify statutory law that has already been passed and codified into law.

Interesting question. But one can argue that if the Senate intended itself to be the only branch authorized to rescind a particular treaty, then it should have inserted language into the rescission clause specifying as much. If the treaty was ratified, then the Senate "consented" to the rescission clause as written.

No crazier than having a committee of 535 trying to set foreign policy at times. I think there was a Supreme Court case about this in the 1930s, and they ruled that in matters of foreign policy, the President has plenipotentiary powers.

I see the President has the power to make the treaties, and the Senate can modify or reject them, either by a voto or by not voting. OTOH, I think that Congress needs to ACT to reject a President's decision to withdraw from a treaty, especially when there is the provision involving withdrawl.

You've convinced me (Jay, Madison, and Jefferson helped). So, you want to call the President, or shall I?

If the treaty was ratified, then the Senate "consented" to the rescission clause as written.

If by rescission clause you mean the treaty terms for withdrawal, it is totally irelevant. It makes no stipulation as to how the United States decides to withdraw or not. That is an issue of our own sovereign government. It only stipulates the obligations of one party to the other.

But then if it is an "issue of our sovereign government," then the Senate should have inserted language indicating as much into the rescission clause. Do you see where I'm going with this? It's merely an argument for the President's power to rescind.

The only fly in the ointment I could see would be if either the terms of the treaty specified that notice from the President alone of withdrawal from the treaty would be acceptable under the terms of the treaty (and thus Senate ratification would constitute an implied delegation of the authority to withdraw), or if Congress passed legislation delegating the authority to withdraw from treaties to the executive, either in a single case, or as a blanket delegation. Since neither of those is the case here, Bush is wrong on this issue, and interestingly, so is Henry Hyde - the House would obviously play a role in ending treaties via legislation.

The withdrawal clause

Article XV

1. This Treaty shall be of unlimited duration.

2. Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty 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.

Article XVI

1. This Treaty shall be subject to ratification in accordance with the constitutional procedures of each Party. The Treaty shall enter into force on the day of the exchange of instruments of ratification.

2. This Treaty shall be registered pursuant to Article 102 of the Charter of the United Nations.

DONE at Moscow on May 26, 1972, in two copies, each in the English and Russian languages, both texts being equally authentic.
FOR THE UNITED STATES OF AMERICA:
RICHARD NIXON
President of the United States of America
FOR THE UNION OF SOVIET SOCIALIST REPUBLICS:
L. I. BREZHNEV
General Secretary of the Central Committee of the CPSU

No Constitutional arguement by Sen. Levin

FOR IMMEDIATE RELEASE:
December 13, 2001 CONTACT: Press Office
http://levin.senate.gov
202-224-6221

Levin Statement on President Bush's Decision
to Unilaterally Withdraw From the ABM Treaty

for indent &
between paragraphs------>

WASHINGTON – Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, made the following statement today regarding President Bush's decision to unilaterally withdraw from the Anti-Ballistic Missile Treaty.

Ensuring the security and safety of the American people, especially from weapons of mass destruction, must remain our first defense priority. If I believed that withdrawing unilaterally from the Anti-Ballistic Missile Treaty would enhance our national security, I would support doing so. However, the President's announcement that the United States will unilaterally withdraw from the ABM Treaty is a serious mistake for our national security. It is not necessary and it is not wise.

Unilateral withdrawal is not necessary because the ABM Treaty is not a significant constraint on testing at this time. Indeed, until a few months ago, the Ballistic Missile Defense Organization (BMDO) was proceeding with research, development and testing that was entirely consistent with the treaty. This approach recognized that the United States can develop and test national missile defenses and stay in the treaty. However, the administration then added new tests that would conflict with the treaty – even though these tests are of marginal value.

Unilateral withdrawal is not wise because it focuses on the least likely threats to our security rather than the most likely threats. The Joint Chiefs of Staff believe that ballistic missiles are the least likely means of delivering a weapon of mass destruction to the United States. The more likely threat comes from a nuclear, biological or chemical weapon being delivered to the United States in a plane, truck, ship or a suitcase, which would be more reliable, less costly, harder to detect and have no "return address" against which to easily retaliate. We need to focus on the most likely threats to our security before accelerating the spending of billions of dollars for defenses against the least likely threats.

Unilateral withdrawal is not wise because it needlessly strains our growing relationship with Russia, a partner in the new war on terrorism. The President's decision also seems to be a violation of his campaign pledge at the Citadel in September 1999, that, if elected, he would "offer Russia the necessary amendments to the Anti-Ballistic Missile Treaty." From newspaper accounts it appears that the administration did not offer amendments to the Russians that would allow us to proceed with the new tests that the administration added. Instead, something much broader was proposed by the administration and not necessarily in the form of amendments. In other words, rather than proceeding with tests permissible under the ABM Treaty or reaching agreement with Russia on amendments to allow for further testing and maintaining the right to withdraw at a later time, the administration has decided at this time to unilaterally withdraw. This is not the way to treat an important nation with which we seek a new relationship based on mutual cooperation. It is fair to ask: What specific amendments to the ABM Treaty were proposed to the Russians by the President as he promised?

Unilateral withdrawal is not wise because it risks upsetting strategic stability. It risks a dangerous action-reaction cycle in offensive and defensive technologies that would leave America less secure. Even though the missile defense system being pursued by the administration is limited, the technologies that would be created as part of this limited system could quickly lead to a much larger program that could – in Russian eyes – undermine their nuclear deterrent. This could prompt Russia to take the destabilizing step of putting multiple warheads on missiles, so-called MIRVed missiles. This could lead China to rapidly increase their nuclear program. It could also lead China or other countries to devise countermeasures and decoys that they could then sell.

Finally, the President's decision to withdraw unilaterally from the ABM Treaty is not wise because it risks undermining our relationships with allies, partners and other nations just when the world is united in a common fight against terrorism. As this multilateral effort clearly demonstrates, our security is enhanced when we make common cause with other nations in pursuit of common goals. In both the short-term and the long-term, our security is diminished when we forge ahead unilaterally regardless of the impact on the security of other nations.

The Armed Services Committee will hold hearings on the administration's decision in the weeks and months ahead.
# # #

And another prespective

The President's Power to Terminate the ABM Treaty

By: Michael D. Ramsey, Professor of Law, University of San Diego Law School. Professor Ramsey teaches Constitutional Law and Foreign Affairs Law. A more extensive version of these thoughts appears in Saikrishna B. Prakash & Michael D. Ramsey, "The Executive Power over Foreign Affairs," 111 Yale Law Journal 231 (2001).

President Bush has signaled his intent to withdraw from the treaty between the United States and Russia (formerly the Soviet Union) limiting anti-ballistic missile defense systems, commonly known as the ABM Treaty. This raises an important constitutional issue as to whether the President may terminate a treaty on his own authority, or whether he must seek the approval of Congress (or, perhaps, of the Senate). Although that may appear a close question upon first consideration, a careful reading of the Constitution reveals a clear answer: the President’s constitutional power in foreign affairs includes the power to terminate treaties.
At the outset, it should be clear that the U.S. has the right to withdraw from the ABM Treaty under some circumstances. The Treaty itself provides, in Article XV, that each party has the right to withdraw from the treaty “if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.” Withdrawal is effected by the withdrawing party giving six-months notice to the other party, together with a statement of the extraordinary events leading to the withdrawal. Moreover, international law recognizes that a party may withdraw from treaty obligations in the event of substantially changed circumstances. It does not seem a great stretch to say that the emergence of terrorist groups such as al-Qaeda dedicated to the mass murder of American civilians, and the impending proliferation of nuclear weapons to these groups and to governments in sympathy with them, qualify as changed circumstances and extraordinary events jeopardizing our supreme interests. Thus it is likely that international law and the plain language of the treaty permit the U.S. to withdraw. The constitutional question, however, is which branch of the U.S. government has the power to make that decision.
The Constitution specifies that the President makes treaties on behalf of the U.S., subject to the consent of two-thirds of the Senate, but on its face says nothing about who can terminate treaties. Nonetheless, the Constitution’s text does provide an answer.
The key language is Article II, Section 1, which says that the President has the “executive Power” of the United States. To the framers of the Constitution, this power had two important components, both relevant to the question of treaty termination. First, the most familiar aspect of executive power is the power to “execute” the laws – that is, to enforce them or carry them into effect. Under Article VI of the Constitution, treaties function as laws, and, as the framers recognized, they are part of the “laws” that the executive executes. One element of “executing” a law (or treaty) is deciding when it does not apply, or no longer applies, on the basis of its own terms. Accordingly, when the President decides that a treaty should no longer apply, he is executing the treaty – in the case of the ABM Treaty, he is executing Article XV of the treaty, which provides when and how the treaty may be terminated.
The second important aspect of the President’s executive power relates to foreign affairs. Prior to the drafting of the Constitution, influential theorists of the structure of government – such as Locke, Montesquieu and Blackstone – described “executive power” as including the management of a nation’s foreign affairs. The framers, of course, read the works of these theorists with care, and we may easily conclude that they were familiar with the foreign affairs aspects of “executive power” and intended to incorporate them into the President’s power in Article II, Section 1. And indeed, from the very beginning of constitutional government, the President has been recognized as the constitutional representative of the U.S. with respect to foreign governments and foreign affairs. Thomas Jefferson, George Washington’s Secretary of State, wrote in 1790 that “the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department [that is, the President], except as to such portions of it as are specially submitted to the senate.” On this basis, Washington quickly assumed power over U.S. ambassadors, diplomatic correspondence and foreign policy, and all subsequent Presidents have followed his example.
Of course, the President does not have power over all aspects of foreign affairs by virtue of the “executive power.” The framers did not wish to rest all foreign affairs powers in the hands of a single person, and so the text of the Constitution specifically allocates some powers elsewhere: Congress has the power to declare war, to issue letters of marque and reprisal, and to regulate foreign commerce, while the Senate has a shared voice in ambassadorial appointments and in the ratification of treaties. But many foreign affairs powers are not mentioned specifically in the text, and that is because they remain part of the President’s executive power over foreign affairs. As Jefferson indicated, allocations of foreign affairs power to other branches are exceptions to the general executive power over foreign affairs, and where no exception is made, the power remains with the President. This explains why the President is universally thought to have power over diplomacy and foreign policy, even though those matters are not mentioned in so many words in the Constitution.
This analysis shows that treaty termination is a power of the President. Plainly terminating treaties was part of the executive power over foreign affairs envisioned by Locke, Blackstone and Montesquieu. Although the framers allocated some executive foreign affairs powers to other branches in the Constitution’s text, they did not mention treaty termination, so that power stayed with the President.
In short, the President has two substantial constitutional claims to the power to terminate treaties, based on his Article II, Section 1 possession of the “executive power.” He has the power to execute the laws (including treaties), and deciding that a treaty no longer applies in accordance with its terms is an aspect of treaty-execution. Further, he is charged with the general management of the nation’s foreign affairs, since that was understood by the framers to be part of the executive power. Either would be a sufficient basis for the President’s action; together, they should satisfy the sternest critic.
It is also hard to see any argument based on the Constitution’s text that would require involvement of Congress or the Senate. With respect to Congress, no part of the Constitution gives Congress any direct role in the treaty process. One might argue that treaties function as laws in the U.S. legal system, and just as the President cannot repeal a law without Congress’ approval, he also cannot “repeal” a treaty. However, this argument ignores what is actually happening in the case of the ABM Treaty. The President is not asserting a right to ignore or “repeal” the Treaty; rather, he is giving notice of U.S. withdrawal in accordance with Article XV of the Treaty. The President is acting in full accordance with the Treaty’s terms. The correct analogy is to a statute that, for example, gives trade concessions to a foreign country, so long as that country gives reciprocal concessions to the U.S. If such a law were in place and the relevant foreign nation ceased to give reciprocal trade concessions to the U.S., plainly the President could declare that the trade concessions allowed by the U.S. statute were no longer operative. He would not need the approval of Congress, because all he would be doing is implementing the statute in accordance with its terms, not violating or repealing it.
A somewhat stronger claim might be made that the President must consult the Senate before withdrawing from the treaty. The Constitution requires approval of two-thirds of the Senate for the President to make a treaty. Perhaps one might argue that by implication a similar process is required to withdraw from a treaty. However, this is not the way the Constitution works in the closely analogous area of appointments. The appointment of ambassadors and other executive officers (such as the Attorney General) requires nomination by the President and approval (confirmation) by the Senate, much as treaties must be proposed by the President and approved by the Senate. But the President may remove ambassadors and executive officers without the approval of the Senate. (In contrast, where the Constitution wished to limit the President’s removal power, in the case of judges, it does so explicitly).
This process makes sense in terms of the understanding of “executive power” discussed earlier. Appointing and removing ambassadors and other executive officers is a traditional executive function, and ordinarily would be encompassed within the President’s executive power. The framers, wishing to enhance the checks and balances upon the President, gave the Senate a role in appointments. However, they made no mention of any Senate role in removal of executive officers. Therefore, that power remained part of the President’s “executive power.” Similarly, the traditional executive power included power over treaties. To enhance checks and balances, the framers gave the Senate a role in treaty making. But because they did not give the Senate a role in treaty termination, that power remained with the President as part of his executive power.
As a result, the Senate’s claim to a role in treaty termination is actually quite weak. The constitutional treatment of appointments shows that Senate participation in approving a presidential action does not imply Senate participation in undoing that action. And aside from the Senate’s role in approving the making of treaties, there is no constitutional language that, even by implication, could suggest any role for the Senate in terminating them.
Finally, as a practical matter, this is not a radical assertion of presidential power. As noted, Presidents since George Washington have exercised substantial power in foreign affairs, controlling the diplomacy and foreign policy of the nation in an exercise of their executive power. In modern times, to cite two leading examples, Franklin Roosevelt terminated the Treaty of Friendship with Japan in 1939, in the course of the deteriorating relationship between the two countries that eventually lead to war, and President Carter terminated the mutual defense treaty with Taiwan in 1979, upon U.S. recognition of the Beijing government. As a result, President Bush’s constitutional power to withdraw the U.S. from the ABM Treaty should not be doubted. It is well within his power to implement treaties and exercise the executive’s power over foreign affairs.

2001 The Federalist Society

Opinions, opinions.....

But then if it is an "issue of our sovereign government," then the Senate should have inserted language indicating as much into the rescission clause.

Why? Article 1 of the Constitution is not amendable by international treaty. There is no need to stipulate to the USSR how we conduct our business. It's not their concern, just as they didn't stipulate to us how they would arrive at their decisions. The powers of the President derive from the Constitution.

I am curious. Why would you want the President to have this supreme power? It goes against republican principles. It goes against conservative principles. It goes against strict constructionist principles. It contradicts the writings of John Jay, James Madison, and Thomas Jefferson. And yet, you argue for it. Why?

The only fly in the ointment I could see would be if either the terms of the treaty specified that notice from the President alone of withdrawal from the treaty would be acceptable under the terms of the treaty

I wonder if that would even be constitutional. If the Constitution requires Senate consent to withdrawal, you can't change that by a mere 2/3 Senate vote.

So the Federalist Society has sunk to citing the actions of FDR as precedent? The end truly does justify the means.

But there is a point. The President does NOT need the approval of the Senate to fire a Cabinet officer. It seems to me that withdrawing from a treaty, since the Constitution does not require Senate approval of such a decision, also falls into the same category.

The good professor's argument here is shot full of holes. The main problem is that the logic sucks. Consider this bit:

Thus it is likely that international law and the plain language of the treaty permit the U.S. to withdraw. The constitutional question, however, is which branch of the U.S. government has the power to make that decision.

Quite right. But then he goes on to say this:

One might argue that treaties function as laws in the U.S. legal system, and just as the President cannot repeal a law without Congress? approval, he also cannot ?repeal? a treaty. However, this argument ignores what is actually happening in the case of the ABM Treaty. The President is not asserting a right to ignore or ?repeal? the Treaty; rather, he is giving notice of U.S. withdrawal in accordance with Article XV of the Treaty. The President is acting in full accordance with the Treaty?s terms.

But the professor is simply begging the question here, by assuming to be true that which he has yet to show to be true - that the executive has such powers in the first place. This notion that he is abiding by the terms of the treaty by exercising the right to withdraw assumes a priori that it's his decision to make. Well, that's what we're all arguing about, and it's not nearly as clear as the professor would have you believe.

Senate consent is required to make the treaty, just as the Senate is required to confirm nominees before they move into the offices (with the exception of recess appointments). I readily concede those points.

There is nothing, though, that requires the Senate's consent to withdraw from a treaty or to fire a Cabinet officer.

The President's Power to Terminate the ABM Treaty
By: Michael D. Ramsey, Professor of Law, University of San Diego Law School. Professor Ramsey teaches Constitutional Law and Foreign Affairs Law. A more extensive version of these thoughts appears in Saikrishna B. Prakash & Michael D. Ramsey, "The Executive Power over Foreign Affairs," 111 Yale Law Journal 231 (2001). President Bush has signaled his intent to withdraw from the treaty between the United States and Russia (formerly the Soviet Union) limiting anti-ballistic missile defense systems, commonly known as the ABM Treaty. This raises an important constitutional issue as to whether the President may terminate a treaty on his own authority, or whether he must seek the approval of Congress (or, perhaps, of the Senate). Although that may appear a close question upon first consideration, a careful reading of the Constitution reveals a clear answer: the President’s constitutional power in foreign affairs includes the power to terminate treaties. At the outset, it should be clear that the U.S. has the right to withdraw from the ABM Treaty under some circumstances. The Treaty itself provides, in Article XV, that each party has the right to withdraw from the treaty “if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.” Withdrawal is effected by the withdrawing party giving six-months notice to the other party, together with a statement of the extraordinary events leading to the withdrawal. Moreover, international law recognizes that a party may withdraw from treaty obligations in the event of substantially changed circumstances. It does not seem a great stretch to say that the emergence of terrorist groups such as al-Qaeda dedicated to the mass murder of American civilians, and the impending proliferation of nuclear weapons to these groups and to governments in sympathy with them, qualify as changed circumstances and extraordinary events jeopardizing our supreme interests. Thus it is likely that international law and the plain language of the treaty permit the U.S. to withdraw. The constitutional question, however, is which branch of the U.S. government has the power to make that decision. The Constitution specifies that the President makes treaties on behalf of the U.S., subject to the consent of two-thirds of the Senate, but on its face says nothing about who can terminate treaties. Nonetheless, the Constitution’s text does provide an answer. The key language is Article II, Section 1, which says that the President has the “executive Power” of the United States. To the framers of the Constitution, this power had two important components, both relevant to the question of treaty termination. First, the most familiar aspect of executive power is the power to “execute” the laws – that is, to enforce them or carry them into effect. Under Article VI of the Constitution, treaties function as laws, and, as the framers recognized, they are part of the “laws” that the executive executes. One element of “executing” a law (or treaty) is deciding when it does not apply, or no longer applies, on the basis of its own terms. Accordingly, when the President decides that a treaty should no longer apply, he is executing the treaty – in the case of the ABM Treaty, he is executing Article XV of the treaty, which provides when and how the treaty may be terminated. The second important aspect of the President’s executive power relates to foreign affairs. Prior to the drafting of the Constitution, influential theorists of the structure of government – such as Locke, Montesquieu and Blackstone – described “executive power” as including the management of a nation’s foreign affairs. The framers, of course, read the works of these theorists with care, and we may easily conclude that they were familiar with the foreign affairs aspects of “executive power” and intended to incorporate them into the President’s power in Article II, Section 1. And indeed, from the very beginning of constitutional government, the President has been recognized as the constitutional representative of the U.S. with respect to foreign governments and foreign affairs. Thomas Jefferson, George Washington’s Secretary of State, wrote in 1790 that “the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department [that is, the President], except as to such portions of it as are specially submitted to the senate.” On this basis, Washington quickly assumed power over U.S. ambassadors, diplomatic correspondence and foreign policy, and all subsequent Presidents have followed his example. Of course, the President does not have power over all aspects of foreign affairs by virtue of the “executive power.” The framers did not wish to rest all foreign affairs powers in the hands of a single person, and so the text of the Constitution specifically allocates some powers elsewhere: Congress has the power to declare war, to issue letters of marque and reprisal, and to regulate foreign commerce, while the Senate has a shared voice in ambassadorial appointments and in the ratification of treaties. But many foreign affairs powers are not mentioned specifically in the text, and that is because they remain part of the President’s executive power over foreign affairs. As Jefferson indicated, allocations of foreign affairs power to other branches are exceptions to the general executive power over foreign affairs, and where no exception is made, the power remains with the President. This explains why the President is universally thought to have power over diplomacy and foreign policy, even though those matters are not mentioned in so many words in the Constitution. This analysis shows that treaty termination is a power of the President. Plainly terminating treaties was part of the executive power over foreign affairs envisioned by Locke, Blackstone and Montesquieu. Although the framers allocated some executive foreign affairs powers to other branches in the Constitution’s text, they did not mention treaty termination, so that power stayed with the President. In short, the President has two substantial constitutional claims to the power to terminate treaties, based on his Article II, Section 1 possession of the “executive power.” He has the power to execute the laws (including treaties), and deciding that a treaty no longer applies in accordance with its terms is an aspect of treaty-execution. Further, he is charged with the general management of the nation’s foreign affairs, since that was understood by the framers to be part of the executive power. Either would be a sufficient basis for the President’s action; together, they should satisfy the sternest critic. It is also hard to see any argument based on the Constitution’s text that would require involvement of Congress or the Senate. With respect to Congress, no part of the Constitution gives Congress any direct role in the treaty process. One might argue that treaties function as laws in the U.S. legal system, and just as the President cannot repeal a law without Congress’ approval, he also cannot “repeal” a treaty. However, this argument ignores what is actually happening in the case of the ABM Treaty. The President is not asserting a right to ignore or “repeal” the Treaty; rather, he is giving notice of U.S. withdrawal in accordance with Article XV of the Treaty. The President is acting in full accordance with the Treaty’s terms. The correct analogy is to a statute that, for example, gives trade concessions to a foreign country, so long as that country gives reciprocal concessions to the U.S. If such a law were in place and the relevant foreign nation ceased to give reciprocal trade concessions to the U.S., plainly the President could declare that the trade concessions allowed by the U.S. statute were no longer operative. He would not need the approval of Congress, because all he would be doing is implementing the statute in accordance with its terms, not violating or repealing it. A somewhat stronger claim might be made that the President must consult the Senate before withdrawing from the treaty. The Constitution requires approval of two-thirds of the Senate for the President to make a treaty. Perhaps one might argue that by implication a similar process is required to withdraw from a treaty. However, this is not the way the Constitution works in the closely analogous area of appointments. The appointment of ambassadors and other executive officers (such as the Attorney General) requires nomination by the President and approval (confirmation) by the Senate, much as treaties must be proposed by the President and approved by the Senate. But the President may remove ambassadors and executive officers without the approval of the Senate. (In contrast, where the Constitution wished to limit the President’s removal power, in the case of judges, it does so explicitly). This process makes sense in terms of the understanding of “executive power” discussed earlier. Appointing and removing ambassadors and other executive officers is a traditional executive function, and ordinarily would be encompassed within the President’s executive power. The framers, wishing to enhance the checks and balances upon the President, gave the Senate a role in appointments. However, they made no mention of any Senate role in removal of executive officers. Therefore, that power remained part of the President’s “executive power.” Similarly, the traditional executive power included power over treaties. To enhance checks and balances, the framers gave the Senate a role in treaty making. But because they did not give the Senate a role in treaty termination, that power remained with the President as part of his executive power. As a result, the Senate’s claim to a role in treaty termination is actually quite weak. The constitutional treatment of appointments shows that Senate participation in approving a presidential action does not imply Senate participation in undoing that action. And aside from the Senate’s role in approving the making of treaties, there is no constitutional language that, even by implication, could suggest any role for the Senate in terminating them. Finally, as a practical matter, this is not a radical assertion of presidential power. As noted, Presidents since George Washington have exercised substantial power in foreign affairs, controlling the diplomacy and foreign policy of the nation in an exercise of their executive power. In modern times, to cite two leading examples, Franklin Roosevelt terminated the Treaty of Friendship with Japan in 1939, in the course of the deteriorating relationship between the two countries that eventually lead to war, and President Carter terminated the mutual defense treaty with Taiwan in 1979, upon U.S. recognition of the Beijing government. As a result, President Bush’s constitutional power to withdraw the U.S. from the ABM Treaty should not be doubted. It is well within his power to implement treaties and exercise the executive’s power over foreign affairs.


2001 The Federalist Society

Levin Statement on President Bush's Decision to Unilaterally Withdraw From the ABM Treaty

Levin Statement on President Bush's Decision
to Unilaterally Withdraw From the ABM Treaty