The President Can Terminate Treaties Alone
Historic practice and a consistent reading of the executive power confirm that the Founders assigned withdrawal solely to the president.
When faced with questions relating to America’s role in the world, we would be wise to heed the advice of the Founders. George Washington urged distance from the “frequent controversies” of Europe. Thomas Jefferson pursued a course of “peace, commerce, and honest friendship with all nations, entangling alliances with none.”
Recently, the Senate Foreign Relations Committee favorably reported a resolution that would reject those words of wisdom. Offered by Senator Tim Kaine (D-Virginia), the resolution would require the concurrence of two-thirds of the Senate or an Act of Congress to agree to any attempt to withdraw the United States from the North Atlantic Treaty Organization (NATO) alliance.
Such a resolution would contravene historical precedence and is likely unconstitutional.
While the Constitution provides a role for both the president and the Senate when entering a treaty, it is silent regarding how to exit a treaty. But that silence says more than some would acknowledge. In what may be considered an example of the common sense of the Constitution, our system requires deliberation before entering alliances while allowing for quick withdrawal should international agreements later prove ruinous to the nation.
Such an occasion occurred very early in our history as an independent nation. In 1793, President Washington and his cabinet endorsed the view that the president’s executive power included the ability to unilaterally terminate our treaty with France. Withdrawal from our treaty obligations permitted the United States to maintain neutrality in a war between France and Great Britain at a time when our republic could ill afford involvement in foreign military adventures.
The Senate’s advice and consent role in making treaties was intended to ensure that American interests are protected by preventing one person from entering into an unwise agreement in the first place. As James Wilson pointed out, “neither the President nor the Senate solely, can complete a treaty, they are checks upon each other, and are so balanced as to produce security to the people.”
The power to enter treaties is found in Article II, which vests the president with the “executive power.” Unlike a legislative body, the president can act with one voice and speed, precisely the qualities needed to negotiate a treaty.
But just as we must pay careful attention to the text of the Constitution, so too must we take notice of its silence. As the Supreme Court pointed out in United States v. Curtiss-Wright, “the powers of external sovereignty did not depend upon the affirmative grants of the Constitution.”
In other words, the executive power to make international agreements would exist regardless of whether that authority was expressly mentioned in the Constitution. The explicit mention of the Senate and its advice and consent function serves as an exception to what would otherwise be an exclusive executive power. Since the Constitution does not expressly make a similar exception for treaty termination, withdrawal remains an executive power of the president.
The relation of the Senate to the executive is similar in another place in the Constitution: the Appointments Clause. In 1926, the Supreme Court settled the long-standing question of whether a president may remove executive officers without the approval of the Senate. Andrew Johnson was impeached for violating the Tenure in Office Act, which forbade the president to remove executive-branch officials without the consent of the Senate. But, decades later in the case of Myers v. United States, the Supreme Court found that the executive power includes, in the absence of express words, a presidential power to unilaterally remove executive officers.
The Supreme Court’s analysis of the appointment and removal power in Myers is analogous to the treaty-making power. In Myers, the Supreme Court noted that, in the Constitution, “the executive power was given in general terms…and was limited by direct expressions where limitation was needed, and the fact that no express limit was placed on the power of removal by the Executive was convincing indication that none was intended.” The Court also stated that the advice and consent role of the Senate regarding appointments is meant “to prevent the filling of offices with bad or incompetent men.” Further, the Myers Court held that the purpose of advice and consent was not prompted by any desire to limit removals.
In sum, the Supreme Court found that “the power of removal is incident to the power of appointment, not to the power of advising and consenting to appointments” and that the executive is entrusted with the exclusive power of removal.
Similarly, as legal scholars Saikrishna Prakash and Michael Ramsey argue, the president’s executive power includes a general power over foreign affairs, and where the Constitution does not allocate specific foreign affairs powers to Congress or the Senate, those powers reside with the president.
In other words, treaty termination is an exercise of the executive power of the president over foreign affairs.
Although this was not always the case, unilateral presidential treaty withdrawal is now a reasonably settled matter of historical practice. Treaty termination is not all that rare, and out of the over 100 treaty terminations during the 20th and 21st centuries, almost all were effectuated by presidents who acted alone.
When Congress attempted to constrain the president’s authority to terminate treaties, it failed. The most prominent example arose when President Carter decided to withdraw the United States from a mutual defense treaty with Taiwan. Members of Congress, led by Senator Barry Goldwater, challenged Carter’s action in court but lost in the D.C. Circuit, which held that “the President’s authority…is at its zenith when the Senate has consented to a treaty that expressly provides for termination on one year’s notice, and the President’s action is giving the notice of termination.”
Although the Supreme Court has not definitively ruled on the question, we are left with the reality that when presidents exercise their executive power to withdraw from treaties, Congress is typically unable to mount a serious challenge.
While we may not have a Supreme Court ruling directly on point, historic practice and a consistent reading of the executive power would confirm what the Founders provided: The president may unilaterally withdraw the United States from treaties.
Senator Kaine’s resolution seeks to amend the Constitution by mere statute. Enactment of the resolution would endorse the perpetuation of current American commitments, even if they become disastrous to American interests.
This is not just a matter of theory. Liz Cheney offered an amendment that would have placed limitations on the presidential ability to withdraw from Afghanistan. Typically, Congress has shied away from micromanaging war decisions. Senator Kaine’s resolution will micromanage diplomacy.
All Americans, and particularly those who serve in the Senate, should heed the advice of Washington and Jefferson and preserve the freedom to pursue American national interests.
Rand Paul serves as the junior United States senator from Kentucky.