Abstract
The bush administration has heard plenty of reasons why its national missile defense plans are unrealistic: that a good defense can never beat a good offense; that, even if it works, it will break the budget and deprive U.S. forces of funds needed for other purposes; that a shield could make Americans less secure if it goads Russia and China into building more spears; and that if lightly armed terrorists can penetrate U.S. security to attack the Pentagon and World Trade Center towers, couldn't a determined rogue state evade or poke through missile defenses?
But these practical considerations aside, the Bush team could also face a stiff legal challenge from Congress if the White House attempts to jettison the Anti-Ballistic Missile (ABM) Treaty to make way for missile defense. Does the White House have the right to flout or void treaties–described by Chief Justice John Marshall in 1823 as the “supreme law of the land”–without approval by one or both houses of Congress? If it takes two branches of government to make a treaty, can the White House alone terminate it? The U.S. Constitution provides no clear answers to these questions, and the courts have handed down contradictory or highly qualified rulings. But the precedents established over the past two centuries suggest that the president may not act alone to abrogate U.S. treaty obligations.
The Constitution
The Constitution assigns far more foreign relations powers to Congress than it does to the president. Article 1 grants Congress the power to lay and collect duties, provide for the common defense, regulate foreign commerce, establish rules on naturalization, regulate foreign coin, define and punish piracies and felonies committed on the high seas and offenses against the law of nations, declare war, grant letters of marque and reprisal, make rules concerning captures on land and water, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and sea forces, and provide for calling for the militia to repel invasions as well as for domestic security.
On the other hand, Article 2 assigns only three main foreign affairs powers to the president. “The President shall be Commander in Chief of the Army and Navy, and of the militia of the several States, when called into the actual service of the United States.”
Secondly, “he shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”
And thirdly, he has the power, “by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the United States,” as established by law.
The Constitution is silent on how a treaty is to be abrogated or even how a statute is to be terminated. But practice establishes that a president may not repeal a statute without the approval of Congress. By implication, treaties may not be terminated without the consent of the Senate or both houses of Congress.
The Constitution's allocation of powers reflects the founding fathers' determination to prevent the establishment of a monarchy. They probably would have opposed the emergence in recent decades of what critics call the “imperial presidency.” The White House, besides exploiting to the hilt the president's discretion to undertake military actions as commander in chief, now enters most foreign commitments by skirting the requirement to obtain the consent of two-thirds of the senators voting. It does this by making executive agreements directly with other governments or through executive-legislative agreements requiring only a majority vote in each house of Congress. Passage of the North American Free Trade Agreement followed this second route before being implemented by a public law.
Whatever the recent practice, the founding fathers did not take treaties lightly. It seems doubtful that they would have allowed a president acting alone to abrogate a treaty entered into with the approval of two-thirds of the senators voting–in this case, the ABM Treaty, which was ratified by President Richard M. Nixon in 1972 after the Senate gave its consent, 88 to 2, with no reservations or special understandings.
Precedents
The very first treaties abrogated by the United States–its 1778 alliance and commercial treaty with France–were both ended by an act of Congress in 1798, which President John Adams then signed.
In more than 50 cases of treaty termination since 1798, both the legislative and executive branches have usually played a role. In most cases, the president has acted pursuant to a joint resolution of Congress or with the consent of the Senate. For example, President James K. Polk asked Congress in the 1840s to make provision in law for ending the 1827 treaty with Great Britain regarding the Oregon Territory. Congress responded with a joint resolution authorizing U.S. withdrawal from the treaty.
Similarly, President U.S. Grant in 1876 asked Congress to determine whether to continue an extradition treaty with Britain. President William Howard Taft in 1911 asked the Senate, “as a part of the treaty-making power of this Government,” to approve his termination of the 1832 treaty of commerce and navigation with Russia.
Unilateral acts by presidents have been the exception–occurring just over a dozen times. A clear example is President Jimmy Carter's move in 1979 to end the 1954 mutual defense treaty with the Republic of China (Taiwan). When Carter ignored the “sense of Congress,” expressed in the Dole-Stone Amendment to the International Security Assistance Act of 1978–that it should be consulted before any executive action affecting the mutual security treaty with Taiwan–16 members of Congress sued the president. Three courts subsequently ruled on this matter, Goldwater v. Carter, producing four very different answers.
A district court ruled–I think correctly–that the president “alone cannot effect the repeal of a law of the land … formed by joint action of the executive and legislative branches, whether that law be a statute or a treaty.” To terminate a treaty, the court said, the president's action must be approved by two-thirds of the Senate or a majority of both houses of Congress. Therefore the district court enjoined the secretary of state from implementing the president's termination notice unless so approved.
The White House then took the case to a court of appeals, which overruled the district court. Stressing the primacy of the executive branch in foreign affairs, the appellate court argued that the president needed the flexibility to end treaties without the approval of one or both houses. Since the Constitution did not specifically require a role for Congress or the Senate in treaty termination, exclusive responsibility belonged to the president. But the court of appeals said its decision applied only to the case at hand, saying that its ruling might not apply in other situations, such as a possible withdrawal from NATO unaccompanied by de-recognition of the other signatories (as in the Taiwan case, where the United States broke the alliance and shifted recognition to mainland China).
Because neither an alliance nor de-recognition of another state is at issue in the ABM Treaty, the 1979 appellate court decision would be even less relevant to a presidential effort to kill the 1972 treaty.
Finally, the Supreme Court reviewed Goldwater v. Carter and issued its decision in December 1979. The majority opinion, written by Justice William H. Rehn-quist, did not address the merits of the case against Carter, nor did it uphold the unilateral right of the president to terminate a treaty. Rather, it said that the case presented a “nonjusticiable political question” that could never be considered by the court. The Supreme Court therefore directed the district court to dismiss the complaint against Carter.
Justice Lewis F. Powell, Jr. voted with the majority to dismiss the case but he denied that the issue in Gold-water v. Carter was basically political. He contended that the complaint was not “ripe for judicial review.” Why? Powell said that courts should not interpret a dispute between Congress and the president until each side has claimed its constitutional authority and reached an impasse. In the case at hand, just a few members of Congress claimed that Carter's action had deprived them of their role in altering the supreme law of the land. Congress as a whole had taken no official position. The Senate had taken no final vote on a draft resolution declaring its approval necessary to terminate a mutual defense treaty.
“Tell maintenance I want all the flags blowing the same way.”
Justice Powell's argument leaves the door open for one or both houses of Congress to assert their right to take part in any decision to terminate a treaty. If President Bush issued a formal statement declaring his intention to end the ABM Treaty, this could provide an occasion for one or both houses to affirm their rights. So far, however, officials in the executive branch only mumble that U.S. actions may soon “bump up against” treaty limits. A more active Congress would challenge executive actions that could erode its prerogatives.
Six years after Goldwater v. Carter, another U.S. president abrogated a treaty commitment without consulting Congress. When Nicaragua in 1984 asked the International Court of Justice (ICJ) to hear its complaints against the United States, Ronald Reagan revoked America's 1946 agreement to accept the court's jurisdiction in cases in which the other side had also accepted this obligation. When the ICJ took the case anyway and ruled against the United States in 1986, the Reagan team rejected the ruling and impugned the court's integrity. Focused on White House violations of U.S. domestic law in the Iran-contra affair, Congress paid little attention to Reagan's unilateral dismantling of a part of the international legal order.
The ABM Treaty
President Reagan also seemed ready to disregard the ABM Treaty if or when his Strategic Defense Initiative (SDI) produced a workable system. Meanwhile, his State Department produced a “broad interpretation” of the 1972 treaty to allow for tests of novel defense systems probably banned by the traditional interpretation. Senate Democrats, however, thwarted this effort. In 1987, Sens. Sam Nunn of Georgia and Carl Levin of Michigan argued that the Senate had approved the 1972 treaty after lengthy hearings in which the executive branch had put forward a narrow interpretation, stipulating what kinds of equipment, research and development, and tests were permitted. Nunn said the White House could not win Senate approval of a treaty with one set of interpretations and then revoke them later. Nunn argued that the State Department's new, broader interpretation “sends a clear message to the Senate: ‘You cannot rely on our representations as to the meaning of a treaty.’” Listening to defenses of the president's prerogatives in foreign policy, Nunn inferred that Republicans believed the president could abrogate the ABM Treaty at any time without congressional support.
When Congress attached restrictive language to the defense appropriations act, Reagan vetoed the bill. A compromise was reached: The White House assured the Senate that its weapons tests would conform with the earlier, narrow interpretation. SDI would proceed with caution and in consultation with the Senate. For its part, Congress did not specify in 1987 whether the president had the right to reinterpret a treaty.
“Somewhere down the line his military posturing turned into interpretive dance.”
Following the 1987 confrontation, however, the Senate placed more explicit restrictions on the president when it approved the Intermediate-Range Nuclear Forces Treaty in 1988 and the Conventional Forces in Europe Treaty in 1991. In each case the Senate conditioned its consent on an understanding that the original interpretation of each treaty could not be unilaterally altered by the president.
Pressured by congressional Republicans, the Clinton administration conducted more research on missile defense and obtained Russia's consent to test theater defenses that might intercept medium-range but not intercontinental missiles. Later, Clinton threatened to break the ABM Treaty if Moscow did not agree to further revisions. But Clinton was spared a confrontation with Moscow (or with Congress for scrapping a treaty) by failed missile defense tests.
When top U.S. and Soviet leaders signed the ABM treaty in 1972, did they allow for its termination? Yes. The 1972 text stipulates that the treaty “shall be of unlimited duration.” But if “extraordinary events” related to the treaty jeopardize either side's “supreme interests,” either may withdraw from the treaty after giving six months' notice. And, “Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.”
The Bush team has sometimes talked as though it may ignore even this minimal obligation to give Moscow six months' notice. In July, the State Department instructed U.S. embassies to alert other governments that U.S. missile defense preparations would likely violate the treaty within a few months. The Bush team has talked with Moscow, Beijing, and U.S. allies, but it also plows ahead–come what may–without specifying when, how, or why it intends to violate the treaty.
The White House has not informed Congress or the Kremlin what extraordinary events are jeopardizing America's supreme interests. To be sure, the “Rumsfeld commission” reported in 1998 that “a new strategic environment now gives emerging ballistic missile powers the capability … to acquire the means to strike the [United States] within about five years of a decision to acquire such a capability (10 years in the case of Iraq).” The commission warned that the United States could not depend on having “extended warning” of such deployments.
Last year, North Korea, the most advanced of these countries in rocketry, seemed close to accepting a deal with Washington that would have curtailed Pyongyang's missile and nuclear activities. Instead of continuing negotiations, in its first 100 days the Bush White House chose to insult rather than negotiate with North Korea. Washington has now renewed talks with Pyongyang, but the question remains: Might the president want an “extraordinary” event to justify breaking the ABM accord?
The Bush team's disdain for the ABM Treaty is part of a broad, unilateralist, “us first” approach to world affairs that took shape before the terrorist actions in September. This unilateralist approach defies the internationalist traditions established by Republican Presidents Theodore Roosevelt and William Howard Taft, both of whom wanted strong rules and a world body to enforce the peace. It ignores the concerns of President Dwight D. Eisenhower about the influence of a vast military-industrial complex. It ignores the insights of strategists who see arms control as a means to stability. So devoted to the cause of missile defense is the Bush team that it seems ready to drop all opposition to a nuclear weapons buildup by China, India, and perhaps Pakistan.
In 2001, as in 1979, Congress has still not formally asserted its right to a role in the process of terminating a treaty. The issue has not been explicitly joined by the Senate, by the Congress as a whole, or by the White House. But law, precedent, and logic suggest that one or both houses of Congress should demand a say on whether to repudiate a part of the “supreme law of the land.” This would provide Congress with a far deeper foundation for upholding the ABM Treaty than its right to limit funds for missile defense tests and deployment.