Congressional and Supreme Court Restraints on Treaty Termination Carried Out at the President's 'Lowest Ebb' of Authority

• Author: Shervin Taheran
• Position: J.D. Graduate from the Georgetown University Law Center
• Pages: 553-588

Congressional and Supreme Court Restraints on

Treaty Termination Carried Out at the President’s

“Lowest Ebb” of Authority

Shervin Taheran*

In a world that is ever more compressed and interdependent, it is essential the

congressional role in foreign affairs be understood and respected. For it is

Congress that makes laws, and in countless ways its laws will and should

shape the Nation’s course. The Executive is not free from the ordinary controls

and checks of Congress merely because foreign affairs are at issue.. . It is not

for the President alone to determine the whole content of the Nation’s foreign

policy.

1

INTRODUCTION

Can a U.S. President withdraw from a treaty ratified with the advice and con-

sent of the Senate in the face of congressional opposition to withdrawal? Does a

President maintain exclusive authority on the process and procedures of treaty

termination? Consider the following hypothetical scenario, based upon recent

events.

Assume the year is 2026, and the President of the United States claims that the

United States is tired of being taken advantage of by North Atlantic Treaty

Organization (NATO) partners.

2

See Michael Crowley, Allies and Former U.S. Officials Fear Trump Could Seek NATO Exit in a

Second Term, N.Y. TIMES (Sept. 3, 2020), https://perma.cc/PKZ9-PAJL.

NATO allies have been unwilling to increase

their defense spending up to the level demanded by the United States: 25% of

each country’s Gross Domestic Product (GDP). The United States declares that

this refusal is a “material breach” of the alliance’s underlying accord (the North

Atlantic Treaty) and is cause for the termination of U.S. participation in the mu-

tual defense agreement.

3

Members of Congress point out that there is no evidence

to show that failing to meet the high U.S. demand is a material breach. Without

paying any heed to the bipartisan uproar in Congress, the President announces

that the United States will seek to end its commitment to NATO by providing a

* Shervin Taheran is a 2023 J.D. Graduate from the Georgetown University Law Center. She has

previously worked in the executive branch and Congress prior to and during law school. The opinions in

this article are exclusively her own. She would like to thank her professors James Zirkle and David

Stewart for their comments and advice on earlier drafts of this article. She would also like to thank the

entire JNLSP board and staff for their hard work and feedback throughout the editing process. This

article was originally written in the spring of 2021, and some discussions and points may reflect that.

© 2023, Shervin Taheran.

1. Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015).

2.

3. See generally North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. The treaty itself

does not specify that a reason needs to be provided for ending participation. Id. at art. 13.

553

notice of denunciation and ceasing participation after the one-year period speci-

fied by the treaty.

4

Members of Congress point to passed legislation prohibiting the use of funds

by the President to announce a denunciation of NATO.

5

The executive branch

responds that such legislation and mandates are inconsistent with “the President’s

exclusive constitutional authorities as Commander in Chief and as the sole repre-

sentative of the Nation in foreign affairs.”

6

The Congress and the President have

now fallen into a clear instance of the President functioning at the office’s “lowest

ebb” in the face of contested constitutional authority to take action. Is there any

recourse for Congress to stop or even limit the treaty termination where the

President has asserted an “exclusive” authority to do so?

7

See Curtis Bradley & Jack Goldsmith, Constitutional Issues Relating to the NATO Support Act,

LAWFARE BLOG (Jan. 28, 2019), https://perma.cc/9QTB-4WAL (arguing that while Presidents may

unilaterally withdraw from treaties in the face of congressional silence, “his authority to do so would be

much less certain if Congress were to bar such withdrawal, whether in the NATO Support Act or other

legislation.”). Bradley and Goldsmith also contend that a treaty withdrawal after the passing of

legislation such as the NATO Support Act might “substantially increase the likelihood that courts would

adjudicate the merits of a presidential treaty termination.” Id.

While the NATO example is hypothetical, there is a not-too-far-off parallel to

recent events. The Donald Trump administration alone withdrew from at least 12

major international agreements, of which five were Article II ratified treaties.

8

Oona Hathaway, International Agreements (Part I): President Donald Trump’s Rejection of

International Law, JUST SEC. (Oct. 2, 2020), https://perma.cc/N27J-75C8.

The Trump administration was politically able to terminate Article II treaties as if

they were non-binding political agreements. Such terminations highlight three

key theoretical issues. First, the debate on treaty termination powers and

Congress’s ability to impose limits on that power vividly demonstrate important

separation of powers tensions between the President and Congress in the field of

foreign affairs. Second, when the President and Congress reach a constitutional

impasse on treaty termination, institutional and individual stakeholders may want

to argue that Congress could turn to the Supreme Court as a potential arbiter

between the branches, even though the Supreme Court appears to have ruled

already on the issue of treaty termination. Finally, the practical policy conse-

quences of an exclusive presidential treaty termination power which disables

any congressional action upon future terminations are important enough to be

highlighted and considered as a functional form of constitutional interpretation

to explain why the President should not have an exclusive treaty termination

authority in all cases.

4. Id. at art. 13 (noting “any Party may cease to be a Party one year after its notice of denunciation

has been given to the Government of the United States of America”).

5. See National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1242, 133

Stat. 1656 (2019) [hereinafter FY2020 NDAA] (including Sec. 1242, a provision which prohibited the

use of funds to suspend, terminate, or provide notice of denunciation of the North Atlantic Treaty).

6. Similar language was released in the FY2020 NDAA presidential signing statement in response to

provisions on the Open Skies Treaty and North Atlantic Treaty. Presidential Statement on Signing

the National Defense Authorization Act for Fiscal Year 2020, 2019 Daily Comp. Pres. Doc.

DCPD201900880 (Dec. 20, 2019) [hereinafter 2019 Presidential Statement].

7.

8.

554 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 13:553

Analysis has been done on how Congress should pass legislation or creatively

reassert its authority on treaty terminations, especially when controversial unilat-

eral treaty terminations by the President occur.

9

See, e.g., Kristen Eichensehr, Treaty Termination and the Separation of Powers, 53 VA. J. INT’L L.

247, 281 (2013) (arguing that Congress can impose a “for cause ” restriction on the President’s treaty

termination power based on an analogy to the Appointments Clause and removal power); Cormac

Broeg, Leaving the Twilight Zone: A Congressional Check on Treaty Termination, UNI. NEB. L. REV.

(Nov. 15, 2020), https://perma.cc/SA34-VDAR. See also Curtis Bradley, Jack Goldsmith, & Oona

Hathaway, Congress Mandates Sweeping Transparency Reforms for International Agreements, JUST

SECURITY (Dec. 23, 2022), https://perma.cc/A9SV-ESVJ.

As some scholars have noted,

there may be no one exact way for Congress to limit the President’s ability to ter-

minate treaties.

10

The way that Congress can or should impose limits may depend

upon substantive factors, such as treaty topic, or on procedural matters, such as

the extent of express congressional limitations during the advice and consent pro-

cess, or whether any limitations are passed as law after entry-into-force.

11

See Amirfar & Singh, supra note 10, at 443. See also Art.II.S2.C2.1.10 Breach and Termination

of Treaties, in Constitution Annotated, LIBR. OF CONG., https://perma.cc/2NQW-C42P (“Regardless of

whether constitutional disputes over treaty termination are resolved in federal courts or through the

political process, the power of treaty termination may depend on the specific features of the treaty at

issue.”).

However, not many scholars have focused on what would theoretically happen

after the Congress acts to impose restrictions or oversight mechanisms on treaty

termination but yet the President still refuses to comply with duly-enacted legal

requirements.

12

See Interpretation and Termination of Treaties as International Compacts, JUSTIA, https://perma.

cc/8FWG-46EG (noting that “[d]efinitive resolution of this argument appears only remotely possible.

Historical practice provides support for all three arguments and the judicial branch seems unlikely to

essay any answer”).

In such legal or political stalemates, one recourse for Congress

could be to pursue judicial review and resolution by the Supreme Court.

This article aims to fill in the gap in recent research by focusing not on recom-

mended congressional actions, but on the legal analysis of the relevant law and

practice, with an emphasis on Supreme Court doctrine.

13

Would the Supreme

Court be going against legal precedent if it heard a treaty termination case after

Goldwater v. Carter?

14

By focusing on the Supreme Court analysis, this article

aims to still encourage Congress to act (and spend the time and political capital in

9.

10. Catherine Amirfar & Ashika Singh, The Trump Administration and the “Unmaking” of

International Agreements, 59 HARV. INT’L L.J. 443, 451 (2018) (“[T]he President’s power to withdraw

from international agreements exists on a continuum, like any other presidential power pursuant to the

Youngstown framework.”). See, e.g., Harold Hongju Koh, Presidential Power to Terminate

International Agreements, 128 YALE L.J. F. 432, 436 (2018), (arguing for a “mirror principle” where the

degree of legislative approval to exit treaties must parallel the degree of legislative approval needed to

enter it). See also, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (Powell, J., concurring)

(“[D]ifferent termination procedures may be appropriate for different treaties.”).

11.

12.

13. Note that this article will be focusing on withdrawal from Article II treaties specifically, not

congressional-executive agreements, sole executive agreements, or political agreements.

14. In Goldwater v. Carter, 444 U.S. 996 (1979), the Supreme Court dismissed a case where

Members of Congress sued the executive branch for withdrawing from a U.S.-Taiwan mutual defense

treaty without congressional authorization. This case and its implications are discussed further in the

article. See discussion infra Section III.C.

2023] RESTRAINTS ON TREATY TERMINATION 555