THE TERMINATION DEBATE:
Can President Bush End The Abm Treaty Without Congressional Approval?

By JOHN DEAN

Friday, Aug. 31, 2001

President Bush has told the Russians that he intends to terminate the Anti-Ballistic Missile (ABM) Treaty, a bilateral agreement between the United States and the former USSR, signed by President Nixon in 1972 with the advice and consent of the Senate. The ABM Treaty conflicts with Bush's plans to develop, test, and deploy an anti-missile system.

The Constitution gives the power to make treaties to the President, who must act with the advice and consent of the Senate. However, it is silent on who has the power to end treaties. Treaties, like statutes, are the law of the land.

Can Bush end the ABM treaty without the consent of Congress? This question has provoked a growing debate among constitutional scholars.

The Debate's Underlying Issues

This is hardly a new debate. Rather, the vague treaty clause of the Constitution has provoked debate in every presidency since George Washington's. The Founders gave little guidance on the treaty power, except to make clear that they did not want the individual states entering into foreign treaties, as they had under the Articles of Confederation.

Since the Reagan presidency, the treaty termination discussions have focused on the ABM Treaty. Reagan, who was the first President to call for an anti-missile defense system ("Star Wars"), simply ignored the Treaty. The justification? Reagan's lawyers claimed that "research" was not included under the ABM Treaty, and that was all they were doing. When that research failed to show the viability of this extremely expensive system, it went on the back burner.

In 1998, Secretary of Defense Donald Rumsfeld, who had earlier headed a bipartisan commission to study our defenses, reported that the basis for the ABM Treaty — the mutually assured destruction (MAD) theory that had seemed workable before the USSR crumbled — was no longer viable.

MAD assumed that if neither side developed defensive systems, then both sides were safe, because a first strike would produce an immediate counterstrike, with each side destroying the other. But now there is no single USSR, with the ability to destroy the United States. Instead, there are four states that once constituted the USSR, and what was previously the USSR's nuclear arsenal of missiles is spread around them.

Moreover, these four states, according to Rumsfeld's commission, do not pose the preeminent nuclear threat to the U.S. Instead, our greatest threat is posed by rogue countries like North Korea, Iraq, and Iran — which will soon have the capacity, if not the disposition, to fire nuclear missiles at select targets in the United States.

Placing aside the question of the wisdom, or lack thereof, of developing and deploying such an unknown but expensive system, the manner in which Bush is proceeding has raised the fundamental question about his authority to act unilaterally, and without Congressional approval. It directly raises the matter of the scope of Presidential power under the Constitution.

The Constitutional Scholars Disagree

Constitutional scholars' views on treaty termination generally divide into two schools of thought. One school believes the President can only terminate a treaty with the blessings of the Congress — in particular, the Senate, which has joint treaty-making powers with the President under the Constitution. The other school believes that the President, as the nation's chief executive charged with conducting its foreign affairs, has exclusive power to terminate treaties.

Yale constitutional law professor Bruce Ackerman sounded the alarm in a recent New York Times OpEd piece. Calling attention to the seriousness of Bush's action, Professor Ackerman wrote, "If President Bush is allowed to terminate the ABM treaty, what is to stop future Presidents from unilaterally taking America out of NATO or the United Nations?"

Professor Ackerman finds Bush's unilateral actions undemocratic. Accordingly, he has called on Congress to adopt "a joint resolution declaring that Mr. Bush cannot terminate treaty obligations on his own. And if the President proceeds unilaterally, Congress should take further steps to defend its role in foreign policy." One further step would be to go to court, as Senator Barry Goldwater did when President Carter unilaterally ended our defense treaty with the Republic of China (Taiwan), in order to recognize the People's Republic of China (Communist China).

Scholars on the other side of the debate include University of Chicago law professor Jack Goldsmith and University of California, Berkeley, law professor John Yoo, who together wrote for The American Lawyer on the subject. Goldsmith and Yoo note that "most foreign relations authorities agree the President has the power to unilaterally terminate an agreement."

They point out, as well, that "in Goldwater v. Carter, the D.C. Circuit upheld the President's unilateral power to terminate treaties." The U.S. Supreme Court later held that the federal courts have no jurisdiction over this issue, pursuant to the "political question" doctrine, which reserves certain subjects particularly within the competence of the political branches for those branches alone.

Professors Goldsmith and Yoo also cite section 326 of the Restatement (Third) of Foreign Relations Law of the United States, which states that the President has the power to interpret treaties. Although they did not cite it, they might well also have included section 339 of the Restatement, which states that the President has the power "to suspend or terminate" any United States treaty. The Restatement is not itself binding law, but it is used by lawyers as an excellent guide to lawyers' consensus as to what the law is.

So where are we? Extremely competent constitutional scholars are on opposite sides of this question. Who's right?

While I certainly don't have the credentials of these eminent scholars, I'm not unfamiliar with this body of law. It's an area every White House counsel gets into. Often the government's lawyers in the State Department — men and women with years of experience with these issues — will directly disagree with the views of lawyers in the Office of Legal Counsel at the Department of Justice. When that occurs, the White House counsel typically gets involved.

The truth is that this question, like many, has neither a right nor a wrong answer. There is law and precedent on both sides. Professors Ackerman, Goldsmith, and Yoo have positioned themselves, in this instance, as advocates, not analysts.

A decade ago, Kenneth Randall, then a professor and Dean at the University of Alabama, wrote an excellent analysis of "The Treaty Power" for the Ohio State Law Journal. His scrutiny of termination authority is most helpful, for he finds three constitutional basis have been relied upon, or rejected, by the scholars and commentators who have addressed the termination authority of the President: the "sole organ," "supremacy clause," and "removal" arguments.

The "Sole Organ" Argument

It was Chief Justice John Marshall, in a speech, who first described the President as the "sole organ of the nation in its external relations, and its sole representative with foreign nations." This language was later relied on by the Supreme Court when, in United States v. Curtiss-Wright Export Corp., it upheld a joint Congressional resolution authorizing the President to prohibit the sale of arms to certain countries.

In ruling that President Carter could act unilaterally in Goldwater v. Carter, the D.C. Circuit relied on this "oft-repeated language" to justify its decision. And reliance on this language is the basis for the principal argument made by those who believe the President can act without Congress.

Closer examination, however, shows that this "oft-repeated language" of the President as the sole organ has nothing to do with treaties. To the contrary, if the President were the sole organ for making treaties, why then does the Constitution require the President to receive the advice and consent of the Senate? The answer is that he is not, in fact, the sole organ for making treaties.

The decision to give the treaty-making power to the President occurred very late in the Constitutional Convention. The Founders had originally contemplated that this power would be a function of the legislative branch. Accordingly, those asserting the Congress's role in terminating treaties cite Federalist No. 75, which states: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise … 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 … [the] President." So much for the "sole organ" claim.

The Supremacy Clause Argument

A more limited, but related argument is that since the President can only make a treaty with the advice and consent of the Senate, he must procure the same advice and consent to end a treaty.

Those claiming that the President has unilateral power to terminate brush aside the Supremacy Clause. They say it is addressed to the courts alone, and that its purpose was to make sure treaties were superior to state laws. And they dismiss treating treaties as the equivalent to federal statutes as little more than sophistry. Treaties are international agreements, not domestic laws, they point out, and few treaties have any domestic implications. Equating the two simply because they are both forms of federal law and thus supreme over state law, they argue, is mere sophistry.

The Removal Argument

Finally, those asserting the President's unilateral treaty termination power note that the same clause that gives the President the power to make treaties with the advice and consent of the Senate — Article II, Section 2, Clause 2 — also empowers the President to appoint ambassadors and "all other Officers of the United States" with the advice and consent of the Senate. Yet a President can unilaterally remove ambassadors and other such appointed officials, without the Senate's advice and consent — as a number of Supreme Court rulings have confirmed.

For instance, when the Congress enacted a provision that the President could not unilaterally remove postmasters, President Wilson simply ignored it and removed an Oregon postmaster. In 1926, in Myers v. United States, the Court ruled that Congress's requirement to get consent to remove was unconstitutional. Today, the President regularly exercises the power to remove executive branch officials. Long ago the Senate realized it had no authority to have its nose in this executive branch business.

Those rejecting the President's unilateral treaty termination authority, however, point to a later ruling by the High Court in the 1934 decision in Humphrey's Executor v. United States. In Humphrey, the Court prohibited President Franklin Roosevelt's unilateral removal, without cause, of a member of the Federal Trade Commission. The Court found that because the FTC commissioner's duties were neither political nor executive, the President could not unilaterally remove him.

Those who believe the President cannot act unilaterally argue that Myers was significantly limited by Humphrey. They also argue, more fundamentally, that even if Myers had not been limited, it still would not be relevant. Unilaterally terminating a treaty and unilaterally removing a federal officer, they suggest, are very different.

Treaties involve our nation's relations with other nations, while federal officers are merely subordinate employees of the executive branch. As one constitutional commentator put it: "Who would [equate] termination of the North Atlantic Alliance to firing a member of the Cabinet?"

Historical Precedents Resolve Nothing

Certainly, early Presidents believed they needed the consent of Congress to abrogate treaties. Thus, they sought either a Congressional resolution, or the consent of the Senate, to do so. For example, the first United States treaties to be terminated — treaties with France relating to alliances and commerce — were ended by Act of Congress in 1789.

A very typical procedure for ending a treaty is the President requests the Congress to adopt a joint resolution, or requests that the Senate give its consent. In 1876, President Grant went to Congress to terminate an extradition treaty with Great Britain. In contrast, President Taft in 1911 sought only the consent of the Senate, not that of the House, to terminate a treaty with Russia relating to navigation and trade.

President Lincoln was the first President to unilaterally terminate a treaty. He did so in 1865 — although the Congress quickly followed with its approval. The first President to act unilaterally in ending a treaty, without even belated Congressional approval, was President McKinley, who in 1899 terminated a treaty with Switzerland that was inconsistent with a later federal statute. Aside from these examples, there is considerable controversy over which other treaties were terminated by unilateral action of the President.

The Resolution Will Be Political

Intellectually, those who argue the President must act with either the consent of the full Congress, or at minimum that of the Senate, have the stronger argument. But intellectual arguments have not resolved this matter in the past, nor will they in the future.

A President determined to act without Congress clearly can do so. The composition of the Supreme Court has changed significantly since its 1979 ruling declining jurisdiction over this question in Goldwater v. Carter. Yet today's partisan Court, after issuing the pro-Bush decision in Bush v. Gore, is unlikely to overrule Goldwater to deny President Bush the power to unilaterally terminate the ABM.

Should President Bush decide to walk out of NATO or the United Nations without Congressional approval, however, the Court might well consider the matter. The subtext of Bush v. Gore may well be the Court's wish to avert disaster by preventing the 2000 Presidential election from going to the Congress. If that is true, the Court then might step in again to prevent the disaster of Bush, or another President, unilaterally changing our relationship with the rest of the world.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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