New Book on Historical Gloss and Foreign Affairs, Part III
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.
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