At The American Conservative, Senator Rand Paul: The President Can Terminate Treaties Alone. From the introduction:
When faced with questions relating to America’s role in the world, we would be wise to heed the advice of the Founders. George Washington urged distance from the “frequent controversies” of Europe. Thomas Jefferson pursued a course of “peace, commerce, and honest friendship with all nations, entangling alliances with none.”
Recently, the Senate Foreign Relations Committee favorably reported a resolution that would reject those words of wisdom. Offered by Senator Tim Kaine (D-Virginia), the resolution would require the concurrence of two-thirds of the Senate or an Act of Congress to agree to any attempt to withdraw the United States from the North Atlantic Treaty Organization (NATO) alliance.
Such a resolution would contravene historical precedence and is likely unconstitutional.
While the Constitution provides a role for both the president and the Senate when entering a treaty, it is silent regarding how to exit a treaty. But that silence says more than some would acknowledge. In what may be considered an example of the common sense of the Constitution, our system requires deliberation before entering alliances while allowing for quick withdrawal should international agreements later prove ruinous to the nation.
Such an occasion occurred very early in our history as an independent nation. In 1793, President Washington and his cabinet endorsed the view that the president’s executive power included the ability to unilaterally terminate our treaty with France. Withdrawal from our treaty obligations permitted the United States to maintain neutrality in a war between France and Great Britain at a time when our republic could ill afford involvement in foreign military adventures.
I agree — and not just because he cites me. (He does, though: “Similarly, as legal scholars Saikrishna Prakash and Michael Ramsey argue, the president’s executive power includes a general power over foreign affairs, and where the Constitution does not allocate specific foreign affairs powers to Congress or the Senate, those powers reside with the president. In other words, treaty termination is an exercise of the executive power of the president over foreign affairs.”)
I think it’s actually a bit more complicated. As Professor Prakash and I wrote in the linked article, the President has power to withdraw from a treaty according to its terms as part of the President’s executive power in foreign affairs. That doesn’t necessarily mean Congress can’t limit that power, as in the resolution Senator Paul mentions. That might depend on whether the President’s withdrawal power is exclusive, which it might not be. But, as an initial matter, the question is whether Congress has an enumerated power to limit the President’s withdrawal power.
I think Congress has no such power, at least as applied to NATO. In particular, while I think Congress has power to implement treaties through its necessary and proper power (see here and here), I don’t think limiting the President’s withdrawal power is necessary and proper to implementing the treaty power (at least not if the President is withdrawing pursuant to the treaty’s term).
So in the end I think Senator Paul is right. (And thanks for the cite.)
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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