Congress and the treaty power: an originalist argument against unilateral presidential termination of the ABM treaty.

• Author: Sabis, Christopher C.

1. INTRODUCTION

   Despite over 200 years of American legal jurisprudence and political precedent, the vital question of how the United States can legally terminate international treaties under the Constitution remains undecided. The Constitution of the United States is silent on this issue. Historically, the executive and legislative branches have each been inconsistent at best in their approaches to treaty termination. The Supreme Court balked in 1979 when given the opportunity to settle the issue, splitting badly and issuing no majority opinion. Academics have written widely on the topic, but with diverse approaches, considerations, and conclusions.

   With this history of indecision and confusion, what proponents of legislative power might consider a worst-case scenario has unfolded. A president elected without a majority of the popular vote has pulled the United States out of a major nuclear arms control treaty that has been in force since 1972. To further complicate the scenario, the pullout occurred in the wake of the terrorist attacks of September 11, 2001. While the popularity that traditionally accompanies an American president during wartime has minimized the domestic political dissent surrounding the withdrawal, the legal questions remain.

   The purpose of this paper is to add a new perspective to the debate over the power to terminate treaties in the United States. Following this introduction, the second section of this paper will provide background and a much abbreviated policy analysis of the treaty at issue. This paper's third section will summarize the current law governing treaty withdrawal, including the seminal case of Goldwater v. Carter, (1) and illustrate why this law does not effectively support the proposition that a President can terminate a treaty without Congressional action.

   Once this analysis is completed, the fourth section of this paper provides originalist arguments for and against a legislative role in treaty termination, and a conclusion consistent with both policy considerations and intent of the Framers of the Constitution. While the majority and dissent in Goldwater v. Carter, and past academic works on the issue, have made practically every textual and policy argument feasible, this paper will analyze both direct and indirect originalist evidence from sources such as The Federalist and The Records of the Federal Convention of 1787. The paper will also put these arguments in the present context and illustrate why the policy concerns of the Framers are still relevant today. In its final section, the paper analyzes the options Congress had in addressing the termination of the ABM Treaty, and has in looking ahead to the potential termination of future treaties, and recommends a course of action based on the current legal and political climate.

   In summary, this paper argues that terminating an international treaty is too important to world stability and to the national character of the United States to leave in the hands of a single individual (or party). If the Constitution were to permit the executive branch to terminate a treaty, it would allow one individual to destroy legally binding multilateral agreements on a whim, or in a moment of intense pressure. The termination of a treaty would be no different from that of an executive agreement. Such a construction of the Constitution would also eliminate the formal dialogue and debates that provide a check against the impetuousness of the party in power. Requiring an Act of Congress to terminate a treaty makes sense on legal, historical, policy, and political levels.

2. BACKGROUND

   1. The ABM Treaty and its History

      On October 3, 1972, the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (hereinafter "ABM Treaty") went into force. (2) The parties agreed to limit themselves to two ABM deployment areas, and further agreed that these areas would be located so that they could not provide a full national defense, nor the basis for developing one. (3) The treaty went on to prescribe the possible locations for the two systems and the quantity of missiles that could be present at each one. (4) The general idea behind these limitations was to maintain the doctrine of "mutual assured destruction" and, consequently, the balance of power. (5) If one nation developed a defensive system that would render the other nation's nuclear arsenal useless, the theory held, that nation would no longer fear retaliation upon launching a first strike.

      Two provisions of the ABM Treaty are of paramount importance. The first, Article I, Paragraph 2, provides the limitation that prompted President George W. Bush's desire to withdraw. The language reads, "Each Party undertakes not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region except as provided for in Article III of this Treaty." (6)

      President Bush believes that this provision is fatal to his plans to develop a National Missile Defense system (hereinafter, NMD), an idea with its roots in the Reagan Administration's "Star Wars." (7) Further discussion of this system and the arguments for and against it follow in the next part of this section.

      The second relevant section of the ABM treaty bears on the legality of United States withdrawal. Paragraph II of Article XV reads:

      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. (8) This Article raises several questions. Does this clause give the President of the United States the legal authority to terminate the ABM Treaty unilaterally, without any action from Congress? (9) What are "extraordinary events?" What are a nation's "supreme interests?" Did the Senate, in giving its consent to a treaty with this escape clause, waive any rights it has under the Constitution to participate in the decision to withdraw from the Treaty? (10) Would such a waiver also apply to the House of Representatives? These questions are all important to the analysis of the issue of treaty termination as it applies to this particular agreement.

   2. Termination of the ABM Treaty.

      1. Facts

         On December 13, 2001, at 4:30 a.m. ET, the United States Ambassador to Moscow delivered formal word to Russia that President Bush was giving 6 months notice of United States termination of the ABM Treaty, invoking Article XV of that document. (11) While Bush did not formalize this decision until December 13, he had been considering it long before that date. (12) Secretary of State Colin Powell, throughout that year, had been in discussions with Russian President Vladimir Putin in an attempt to convince him that the termination of the ABM Treaty was in the best interests of both nations; these overtures failed. (13) "This step was not a surprise for us," President Putin reflected following Bush's announcement, "However, we consider it a mistake." (14)

         The notice of termination also came without the consent or concurrence of either house of Congress. (15) Bush maintained that the executive branch alone had the power to terminate treaties between the United States and foreign powers. However, many members of Congress expressed concern about the president's decision, (16) and some legal scholars questioned the legality of the withdrawal. (17)

      2. Policy Arguments

         While the policy arguments for and against adhering to the ABM Treaty are not determinant of the legal issues of unilateral presidential termination, they do provide a context in which to frame constitutional arguments for and against that power. (18) The fact that there are different positions on the issue provides a reason to scrutinize the methods used to make a final decision on the termination of the Treaty, since the final decision will be binding and will affect the international reputation of the United States.

         a. Arguments for Termination

         President Bush and those who support the decision to terminate the ABM Treaty argue that it is a relic; it is an anachronism from a Cold War over a decade past. (19) This belief seemed to gain validity after the attacks on the World Trade Center and the Pentagon on September 11, 2001. While these were not missile strikes, supporters of the termination argue that no one knows what methods terrorists may use in the future, and that there is a threat of a nuclear attack from "rogue states." (20) They maintain that developing nations like North Korea would not tax their economies by making weapons that the United States could destroy before they reach their targets. (21) In this way, NMD will promote nonproliferation and protect the United States from a missile attack from a rogue-state. "I have concluded," said President Bush, "the ABM Treaty hinders our government's ability to develop ways to protect our people from future terrorist or rogue-state missile attacks." (22) "It's a great move at a great time," believes Kenneth Adelman, Director of the Arms Control and Disarmament Agency under Ronald Reagan, "It shows we are sensitive to the greatest terrorist threat to the country, which is weapons of mass destruction on top of ballistic missiles." (23)

         When confronted with the fear that the destruction of the Treaty will lead to a renewed arms race, particularly with Russian and China, proponents of the missile defense system give different responses. Some maintain that the ABM Treaty did not work as an arms reduction measure even when it was timely. (24) They point to the fact that...