April 04, 2004
President Bush has signaled his intent to withdraw from the treaty between the United States and Russia (formerly the Soviet Union) limiting anti-ballistic missile defense systems, commonly known as the ABM Treaty. This raises an important constitutional issue as to whether the President may terminate a treaty on his own authority, or whether he must seek the approval of Congress (or, perhaps, of the Senate). Although that may appear a close question upon first consideration, a careful reading of the Constitution reveals a clear answer: the President’s constitutional power in foreign affairs includes the power to terminate treaties.
At the outset, it should be clear that the U.S. has the right to withdraw from the ABM Treaty under some circumstances. The Treaty itself provides, in Article XV, that each party has the right to withdraw from the treaty “if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.” Withdrawal is effected by the withdrawing party giving six-months notice to the other party, together with a statement of the extraordinary events leading to the withdrawal. Moreover, international law recognizes that a party may withdraw from treaty obligations in the event of substantially changed circumstances. It does not seem a great stretch to say that the emergence of terrorist groups such as al-Qaeda dedicated to the mass murder of American civilians, and the impending proliferation of nuclear weapons to these groups and to governments in sympathy with them, qualify as changed circumstances and extraordinary events jeopardizing our supreme interests. Thus it is likely that international law and the plain language of the treaty permit the U.S. to withdraw. The constitutional question, however, is which branch of the U.S. government has the power to make that decision.
The Constitution specifies that the President makes treaties on behalf of the U.S., subject to the consent of two-thirds of the Senate, but on its face says nothing about who can terminate treaties. Nonetheless, the Constitution’s text does provide an answer.
The key language is Article II, Section 1, which says that the President has the “executive Power” of the United States. To the framers of the Constitution, this power had two important components, both relevant to the question of treaty termination. First, the most familiar aspect of executive power is the power to “execute” the laws – that is, to enforce them or carry them into effect. Under Article VI of the Constitution, treaties function as laws, and, as the framers recognized, they are part of the “laws” that the executive executes. One element of “executing” a law (or treaty) is deciding when it does not apply, or no longer applies, on the basis of its own terms. Accordingly, when the President decides that a treaty should no longer apply, he is executing the treaty – in the case of the ABM Treaty, he is executing Article XV of the treaty, which provides when and how the treaty may be terminated.
The second important aspect of the President’s executive power relates to foreign affairs. Prior to the drafting of the Constitution, influential theorists of the structure of government – such as Locke, Montesquieu and Blackstone – described “executive power” as including the management of a nation’s foreign affairs. The framers, of course, read the works of these theorists with care, and we may easily conclude that they were familiar with the foreign affairs aspects of “executive power” and intended to incorporate them into the President’s power in Article II, Section 1. And indeed, from the very beginning of constitutional government, the President has been recognized as the constitutional representative of the U.S. with respect to foreign governments and foreign affairs. Thomas Jefferson, George Washington’s Secretary of State, wrote in 1790 that “the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department [that is, the President], except as to such portions of it as are specially submitted to the senate.” On this basis, Washington quickly assumed power over U.S. ambassadors, diplomatic correspondence and foreign policy, and all subsequent Presidents have followed his example.
Of course, the President does not have power over all aspects of foreign affairs by virtue of the “executive power.” The framers did not wish to rest all foreign affairs powers in the hands of a single person, and so the text of the Constitution specifically allocates some powers elsewhere: Congress has the power to declare war, to issue letters of marque and reprisal, and to regulate foreign commerce, while the Senate has a shared voice in ambassadorial appointments and in the ratification of treaties. But many foreign affairs powers are not mentioned specifically in the text, and that is because they remain part of the President’s executive power over foreign affairs. As Jefferson indicated, allocations of foreign affairs power to other branches are exceptions to the general executive power over foreign affairs, and where no exception is made, the power remains with the President. This explains why the President is universally thought to have power over diplomacy and foreign policy, even though those matters are not mentioned in so many words in the Constitution.
This analysis shows that treaty termination is a power of the President. Plainly terminating treaties was part of the executive power over foreign affairs envisioned by Locke, Blackstone and Montesquieu. Although the framers allocated some executive foreign affairs powers to other branches in the Constitution’s text, they did not mention treaty termination, so that power stayed with the President.
In short, the President has two substantial constitutional claims to the power to terminate treaties, based on his Article II, Section 1 possession of the “executive power.” He has the power to execute the laws (including treaties), and deciding that a treaty no longer applies in accordance with its terms is an aspect of treaty-execution. Further, he is charged with the general management of the nation’s foreign affairs, since that was understood by the framers to be part of the executive power. Either would be a sufficient basis for the President’s action; together, they should satisfy the sternest critic.
It is also hard to see any argument based on the Constitution’s text that would require involvement of Congress or the Senate. With respect to Congress, no part of the Constitution gives Congress any direct role in the treaty process. One might argue that treaties function as laws in the U.S. legal system, and just as the President cannot repeal a law without Congress’ approval, he also cannot “repeal” a treaty. However, this argument ignores what is actually happening in the case of the ABM Treaty. The President is not asserting a right to ignore or “repeal” the Treaty; rather, he is giving notice of U.S. withdrawal in accordance with Article XV of the Treaty. The President is acting in full accordance with the Treaty’s terms. The correct analogy is to a statute that, for example, gives trade concessions to a foreign country, so long as that country gives reciprocal concessions to the U.S. If such a law were in place and the relevant foreign nation ceased to give reciprocal trade concessions to the U.S., plainly the President could declare that the trade concessions allowed by the U.S. statute were no longer operative. He would not need the approval of Congress, because all he would be doing is implementing the statute in accordance with its terms, not violating or repealing it.
A somewhat stronger claim might be made that the President must consult the Senate before withdrawing from the treaty. The Constitution requires approval of two-thirds of the Senate for the President to make a treaty. Perhaps one might argue that by implication a similar process is required to withdraw from a treaty. However, this is not the way the Constitution works in the closely analogous area of appointments. The appointment of ambassadors and other executive officers (such as the Attorney General) requires nomination by the President and approval (confirmation) by the Senate, much as treaties must be proposed by the President and approved by the Senate. But the President may remove ambassadors and executive officers without the approval of the Senate. (In contrast, where the Constitution wished to limit the President’s removal power, in the case of judges, it does so explicitly).
This process makes sense in terms of the understanding of “executive power” discussed earlier. Appointing and removing ambassadors and other executive officers is a traditional executive function, and ordinarily would be encompassed within the President’s executive power. The framers, wishing to enhance the checks and balances upon the President, gave the Senate a role in appointments. However, they made no mention of any Senate role in removal of executive officers. Therefore, that power remained part of the President’s “executive power.” Similarly, the traditional executive power included power over treaties. To enhance checks and balances, the framers gave the Senate a role in treaty making. But because they did not give the Senate a role in treaty termination, that power remained with the President as part of his executive power.
As a result, the Senate’s claim to a role in treaty termination is actually quite weak. The constitutional treatment of appointments shows that Senate participation in approving a presidential action does not imply Senate participation in undoing that action. And aside from the Senate’s role in approving the making of treaties, there is no constitutional language that, even by implication, could suggest any role for the Senate in terminating them.
Finally, as a practical matter, this is not a radical assertion of presidential power. As noted, Presidents since George Washington have exercised substantial power in foreign affairs, controlling the diplomacy and foreign policy of the nation in an exercise of their executive power. In modern times, to cite two leading examples, Franklin Roosevelt terminated the Treaty of Friendship with Japan in 1939, in the course of the deteriorating relationship between the two countries that eventually lead to war, and President Carter terminated the mutual defense treaty with Taiwan in 1979, upon U.S. recognition of the Beijing government. As a result, President Bush’s constitutional power to withdraw the U.S. from the ABM Treaty should not be doubted. It is well within his power to implement treaties and exercise the executive’s power over foreign affairs.
By: Michael D. Ramsey, Professor of Law, University of San Diego Law School. Professor Ramsey teaches Constitutional Law and Foreign Affairs Law. A more extensive version of these thoughts appears in Saikrishna B. Prakash & Michael D. Ramsey, "The Executive Power over Foreign Affairs," 111 Yale Law Journal 231 (2001).