New Book on Historical Gloss and Foreign Affairs, Part III

Terminating treaties and executive agreements.

This is the third of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last post, I discussed the rise of executive agreements. In this post, I consider how the United States terminates and withdraws from treaties and executive agreements.

The Constitution specifies a process for making treaties (requiring the advice and consent of two-thirds of the Senate) but it does not mention anything about terminating or withdrawing from them. Yet the United States must have the same ability as other nations to get out of its treaty commitments—for example, when the other party is breaching the treaty or when circumstances have changed such that the treaty relationship no longer makes sense.

Many modern treaties in fact have withdrawal provisions, allowing parties to leave the treaty after giving notice, and surely the United States has a right to invoke those provisions.

But how is this to be done? Must the President go back to two-thirds of the Senate and get its permission before withdrawing? The history on this subject is complicated, as I documented in a 2014 article.

When presidents wanted to terminate treaties in the nineteenth century, then generally sought Congress's or the Senate's approval. That started to change in the early twentieth century, and then unilateral presidential terminations started becoming the norm in the Franklin Roosevelt administration in the 1930s and 1940s.

This shift was relatively uncontroversial until President Jimmy Carter acted to terminate a mutual defense treaty with Taiwan in the 1970s, as part of his decision to recognize mainland China. A few members of Congress sued him, arguing that he lacked the authority to act by himself.

The Taiwan treaty termination case went all the way up to the Supreme Court. But the Court held in Goldwater v. Carter that the case was not justiciable, with a plurality of Justices concluding that it involved a political question. Since then, presidents have terminated dozens of treaties unilaterally, usually without constitutional controversy.

The executive branch claims, reasonably in my view, that there is enough practice that it constitutes historical gloss in support of a presidential termination authority. A 2018 Office of Legal Counsel memorandum reasons, for example, that "In view of the historical examples of presidential action, combined with what has usually been congressional acquiescence, there can no longer be serious doubt that the President may terminate a treaty in accordance with its terms."

This is also the view of the Restatement (Fourth) of the Foreign Relations Law of the United States (2018), which contends that, "According to established practice, the President has the authority to act on behalf of the United States in suspending or terminating U.S. treaty commitments and in withdrawing the United States from treaties." (Full disclosure: I was one of the Reporters who worked on the Restatement.)

What about executive agreements, which (as I discussed in my last post) are made based on either majority congressional approval (congressional-executive agreements) or the President's independent authority (sole executive agreements).

There has never been any real question that presidents can withdraw from sole executive agreements, given that they can enter into these agreements without congressional approval. And modern historical practice, spanning many presidential administrations, appears to support a unilateral presidential authority to withdraw from congressional-executive agreements as well. Citing my scholarship, the Justice Department's Office of Legal Counsel (OLC) has concluded that this is the case.

Importantly, though, the power to terminate a congressional-executive agreement does not give the President the power to terminate legislation that implements that agreement, since it is well settled that only Congress can repeal legislation.

This does not necessarily mean, however, that a statute implementing an agreement will continue to operate after the agreement is terminated. If Congress has expressly or implicitly made the operation of the statute conditional on the continued operation of the agreement (which it has done for some of the legislation implementing trade agreements, for example), the statute will cease to have effect upon termination.

As I discuss in the book, from the perspective of historical gloss, the president's power of treaty termination is best viewed as a concurrent power, falling within Justice Jackson's intermediate "zone of twilight" category from Youngstown. As such, it should be subject to limitation through statute or through reservations attached by the Senate when it gives its advice and consent to treaties. OLC has in recent years advocated a contrary view, which I criticize in the book.

As I conclude at the end of Chapter 5:

As a matter of practice, it seems settled that the President today can act unilaterally in terminating U.S. treaty commitments, at least to the extent that international law allows for such termination. This is how most treaty terminations are now accomplished, and most of them generate little constitutional controversy. This practice is bipartisan and longstanding.

The modern practice, it bears emphasizing, reflects a change in constitutional understandings. Historical practice through at least the late nineteenth century reflected an understanding that congressional or senatorial approval was constitutionally required for the termination of U.S. treaties. Not only was Congress or the Senate almost always involved in treaty terminations but presidents generally acted as if they needed such involvement. The chief debate was simply over whether the full Congress or merely the Senate should be involved in treaty terminations, and historical practice was viewed as relevant to that debate.

Very likely the change in treaty-termination practice was driven in part by other changes—such as the increased role of the United States in the world—that were contributing to the enhancement of executive authority across a wide range of issues. Both the growth in treaty making in general and the increasingly widespread inclusion of unilateral withdrawal clauses in treaties probably also were factors. But lawyers, including those within the State Department as well as legal scholars, also appear to have played a role in assessing and influencing the relationship between the constitutional practice and constitutional understandings. While its role was less direct, the Supreme Court also may have helped facilitate the shift, through its increasingly deferential posture towards the executive branch starting in the 1930s.