Congress commands clear constitutional authority to prohibit President Donald Trump from terminating the 1987 Intermediate-Range Nuclear Forces Treaty (INF) with Russia. But does it have the spine?
Trump recently signaled that his administration would be pulling out of the treaty, in part, he said, because the Russians have been violating it since 2014.
The Constitution’s Treaty Clause stipulates that the president “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” Alexander Hamilton explained in Federalist 75 that the president was denied plenary power over treaties because presidential venality or narcissism might compromise the national interest. Among other things, Hamilton emphasized, “An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth.”
The Constitution’s text is silent on whether Senate consent is necessary to terminate a treaty. But the reasons Senate consent is needed to enter into a treaty apply equally to treaty terminations: namely, fear of corrupt presidential motives.
The sole Supreme Court precedent here is Goldwater v. Carter (1979). Therein, President Jimmy Carter unilaterally terminated the 1955 Taiwan Defense Treaty to normalize relations with the People’s Republic of China. Senator Barry Goldwater then sued the president, alleging that Senate consent was needed for treaty termination. A Supreme Court plurality of four voted to dismiss the suit for presenting a nonjusticiable political question without reaching the merits. Concurring, Justice Lewis Powell argued that because Congress had not institutionally challenged the president’s treaty termination with an opposing resolution or statute, Senator Goldwater’s claim was not ripe. The Supreme Court has never decided whether Senate consent is necessary to terminate a treaty.
Article XV of the INF treaty provides:
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 withdraw to the other Party six months prior to withdrawal from this Treaty.
Senate ratification was necessary to make the United States a “Party” to the INF treaty. A parity of reasoning would require Senate consent to terminate the United States as a “Party.”
Without running afoul of Goldwater v. Carter, the Senate could set the stage for a judicial decision by passing a resolution declaring that Senate approval is necessary for INF treaty termination. Senate Foreign Relations Committee Chairman Bob Corker has stated that termination “would be a huge mistake.” Senator Rand Paul echoed those sentiments: “It’s a big, big mistake to flippantly get out of this historic agreement.” The two should sponsor a Senate resolution accordingly in the event President Trump decides to withdraw from the treaty with six months’ notice under Article XV.
The power of the purse, however, is the ultimate congressional trump card. Congress could approve legislation that prohibits the expenditure of any funds of the United States to deploy weapons or in any other respect contravene the INF treaty. The House passed a comparable spending measure in 1988 to prohibit President Ronald Reagan from acting contrary to the never-ratified SALT II agreement with the Soviet Union. As James Madison presciently observed in Federalist 58: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Congress will be required to take up a new spending measure for several government departments and agencies whose appropriations expire on December 7. That would be a wonderful opportunity for our elected representatives to display a little backbone by prohibiting any expenditure of funds that would run afoul of the INF treaty, a landmark nuclear arms agreement that is as much to be marveled at as imitated.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.