House Debating the Constitutionality of Presidential Termination of Treaties

CSPAN ^ | 6-6-2002 | Huck

[general_re]

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.

Well, that's sort of the problem. The Constitution doesn't really say at all what exactly you have to do to amend, modify, or repeal treaties. Thus, the courts have stepped in and given the power to amend and modify treaties to Congress, and by implication, the power to nullify treaties. Insofar as that is a power of Congress, it is at least as delegable as any other power of theirs is. IOW, if they have the power to do it, they can pass that power to someone else to exercise if they so choose. Not that that's likely to happen, of course.

[general_re]

Appointment of people to cabinet positions is not the same as creating law - it creates no additions or modifications to US law, as a treaty does. Indeed, treaties almost inevitably cause additions, modifications, or repeal of sections of the US Code, as part and parcel of abiding by them. The appointment of executive branch officers has no such attendant requirement.

The ABM treaty had the effect of changing US law. The appointment of John Ashcroft as Attorney General did not. Withdrawing from the ABM treaty will change US law once again. Firing John Ashcroft would not.

[Sandy]

Good questions, good thread. I can't imagine that the President has any authority to unilaterally render a treaty null and void. Such a contention flies in the face of the separation of powers doctrine, imo. Treaties are laws, and the President is simply not authorized to revoke laws with nothing but the stroke of his pen. My guess is that the ABM treaty is null and void due to the fact that one of the parties (USSR) no longer exists, but that's beside the point of this thread.

Have you looked at Goldwater v. Carter? President Carter unilaterally ended the 1955 Mutual Defense with Taiwan. Senator Goldwater and other members of Congress filed suit claiming that Carter's decision was unconstitutional because he hadn't gotten the consent of 2/3 of the Senate. The Supreme Court dismissed the case on various grounds, some justices saying that the case wasn't ripe for review, other justices saying that it was a political question not a legal question for the Court to decide. Bottom line, if this matter makes it to the Court, it would be a case of first impression, meaning something that the Court hasn't ruled on before.

[Huck]

This might interest you:

From federalist #77:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration.[2] The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself.

From federalist #75:

The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations,[4] point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers.[5] But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.

[hchutch]

But at the same time, there is nothing that requires Senate approval to withdraw from the treaty. This seems to place treaty withdrawl under the "executive power" provisions. Therefore, in my opinion, it makes it incumbent upon Congress (both the House and the Senate) to disapprove the decision to withdraw, via a joint resolution or by denying funds for any activity that would violate the terms of the treaty. Either of which, of course, could be vetoed, and then Congress would have to override the veto.

[general_re]

Ah, but now you're not on thin Constitutional ice any more, you've fallen right into the water and are fighting for your life ;)

What you're talking about amounts to a legislative veto, and legislative vetoes have been extremely suspect since INS v Chadha, in 1983. Congress just doesn't have the power to act in the manner you think they should.

[hchutch]

I don't see what part of either excerpt says that the President needs the Senate's permission to withdraw from a treaty. It seems to me that Congress needs to pass a resolution of some stripe that DISAPPROVES of the decision to withdraw from the Treaty.

[Huck]

IOW, if they have the power to do it, they can pass that power to someone else to exercise if they so choose.

I am not sure this is true. The Legislature is granted the power to do certain things, but it cannot change Constitutional law except by the proscribed means. IOW, the House, which is empowered to originate bills, cannot pass a bill granting that power to the President, or the Judiciary, or the Senate. That would be unconstitutional. The bar is set much higher for that sort of change. But as you say, the rule itself is unclear in this case. (Although it really appears that the President is wrong.)

And even if the President weren't wrong, I don't believe the President should have this unilateral power.

[hchutch]

Then what, pray tell, happened with the ergonomics regulations that Congress overturned via legislation? We're also not talking about the "one house" veto that INS v. Chanda overturned. We're talking both houses passing a JOINT resolution that is subject to Presidential veto or the attachment of a rider onto appropriations funding prohibiting the use of those funds for any activity that would constitute a violation of the ABM Treaty, again, an action subject to Presidential veto.

[Huck]

If you require more explicit expression, try this:

"Treaties are legislative acts.... Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process in the case of France in 1798." (Written by Jefferson when he was vice-president; reprinted in Senate Manual, S. Doc. No. 94-1, 94th Cong., 1st session, 666 and 669, 1975.)

[Huck]

That's Thomas Jefferson.

[Huck]

other justices saying that it was a political question not a legal question for the Court to decide

I didn't read the thing, but I read a little about it this morning. Apparantly, one of the justices who said it was a political question that the other branches should hash out themselves was Rhenquist. How that was a political question and Bush v Gore wasn't is beyond my limited abilities to decipher. It seems to me that a dispute between branches about the proper exercise of powers is precisely the type of thing the SCOTUS ought to rule on. Then again, it wasn't so "political" that he was unwilling to reverse the lower court ruling and remand it back to them. But that's just what I gathered.

[general_re]

It's still a legislative veto, and two-house vetoes were also ruled unconstitutional in US Senate v FTC, 463 US 1216 (1983), and Process Gas Consumers Group v Consumer Energy Council, 463 US 1216 (1983).

IOW, you want to say that Congress can move reactively to not permit a President to unilaterally withdraw the US from a treaty. That still assumes that a president can do such a thing in the first place, but consider this. Suppose Congress moves proactively, and declares in a blanket fashion that no president can ever unilaterally withdraw the US from any treaty? Could they do that, by your way of thinking?

[general_re]

Then what, pray tell, happened with the ergonomics regulations that Congress overturned via legislation?

Lest you think I'm ignoring that, the reason Congress could do that was because it delegated the authority to create such regulations in the first place. What Congress giveth, Congress can taketh away. No such delegation of authority exists, or can exist, WRT to treaties.

[hchutch]

At the same time - it's not said so in the Constitution itself. We have Jefferson's interpretation of it, but that's what you have here. It's not binding. The Constitution is, as far as I can tell, silent as to the exact method that should be used when withdrawing from a treaty.

Bush, at this point, is well within his rights to have withdrawn from the treaty unilaterally. Again, look at Goldwater v. Carter. The President appears to have a pretty free hand in foreign policy, subject to the power of the purse strings or Congress passing legislation like the War Powers Act.

[hchutch]

There was the whole debate over the Tenure of Office Act back in the late 1860s. That's what got Andrew Johnson impeached and within one vote of removal from office. A similar battle over a matter in which the Constitution was silent, namely, the removal of a Cabinet Secretary.

I'd see no issue with that, just as I see no problem with the War Powers Act under the Constitution.

[general_re]

Ahhh, crap. To be more clear, what I should say is that Congress can delegate its authority, and it can revoke that delegation, or modify it, but it can't micromanage and put its stamp on every single thing that regulatory agencies do in its name. Congress still persists in attaching legislative vetoes to everything under the sun, confident that the power of the purse will keep the executive quiet, but this treaty thing is almost inevitably going to wind up in court with the executive and legislative branches fighting it out, unlike the usual daily business.

[hchutch]

But there is nothing that mandates Congressional approval prior to the decision to withdraw from a treaty. What provision of the Constitution requires consent of the Congress (or merely the Senate, for that matter) to withdraw from a treaty?

[1rudeboy]

Why would you want the President to have this supreme power?

I'm not arguing that I want the President to have this power, I'm arguing that he has it in the first place. The Curtiss-Wright Court asserted that the President has "confidential" knowledge concerning foreign affairs that only the Executive Branch is in a position to find, and moreover, keep secret. It argued that the success of US foreign policy requires the President to have exclusive authority in such matters.

It follows that a President, engaging in foreign policy as mandated by the Constitution, should not have the Senate looking over his shoulder at every step. Let's say the US gets into a spat with country 'A.' The President threatens to pull out of treaty 'B' in an effort to compel action by A. The leader of A tells the President, "You'll never get your own Senate to go along." In other words, leader A can hold the President's foreign policy hostage in the US Senate. Again, the Curtiss Court was concerned that a President should not be hamstrung in such a fashion. In my opinion, this places the Senate in violation of the Separation of Powers doctrine, by giving it undue influence in the conduct of foreign policy.

It goes against republican principles.

I'm not so sure. Madison himself wanted Congress to be beholden to the individual constituencies it serves, and the Executive to serve the greater good. Madison would probably argue that 100 Senators serving 50 constituencies are not in the position to conduct foreign policy in the manner I stated above.

It goes against conservative principles.

I hear that a lot around here, but no one ever defines "conservative."

It goes against strict constructionist principles.

Not necessarily.

It contradicts the writings of John Jay, James Madison, and Thomas Jefferson.

Persuasive authorities all, but no less persuasive than previous conduct in such a matter. The Supreme Court would look at other writings, past Treaties that were rescinded, Congress' acquiesence in those actions, etc. You make the assumption that this issue is already settled. Yet the Senate has never reserved the power to sign-off on a recission. If it wanted to do so, it would have. That's strict constructionism for you.

And yet, you argue for it. Why?

Why not? You see the President exceeding his authority, I see a Congressional power grab. Two sides of the same coin . . . .

[general_re]

Except that now, a hundred years later, the issue has been settled - cabinet officials serve at the whim of the executive, who can remove them as he sees fit.

I'd see no issue with that, just as I see no problem with the War Powers Act under the Constitution.

You've got to be kidding me. You've got it entirely backwards, IMO - the War Powers Act wrongly takes power from the executive for Congress, and your interpretation of this treaty withdrawal thing wrongly takes power from Congress for the executive. Opinions may vary, but I'll lay good money that the courts will stick with simply extending the extant precedent regarding the status of treaties, rather than dreaming up an entirely new power for the President.

I am curious though - why do you see it as a good thing that the President should be able to do this without Congress?