The Endless Fantasy of American Power
Neither Trump Nor Biden Aims to Demilitarize Foreign Policy
The novel coronavirus pandemic might be the ultimate international problem. It is mobile, indifferent to national borders, and capable of menacing every nation until it can menace none. But instead of embracing international cooperation, the administration of U.S. President Donald Trump has leaned into its “America first” foreign policy, turning its back on U.S. allies and exiting some of the United States’ longest-standing treaty relationships.
On May 21, Secretary of State Mike Pompeo announced that the United States would begin the six-month process of withdrawing from the Open Skies Treaty, a Cold War legacy that promotes military transparency by facilitating mutual surveillance overflights among NATO members and former Warsaw Pact countries. Then on July 6, the Trump administration announced that the United States was terminating its relationship with the World Health Organization by withdrawing from the organization’s foundational agreement, the WHO Constitution.
These are not the first treaty relationships Trump has jettisoned. Over the last three and a half years, he has exited or threatened to exit a long list of international treaties, ranging from the Intermediate-Range Nuclear Forces Treaty (from which the United States withdrew in August 2019) to the North Atlantic Treaty that created NATO (from which Trump has repeatedly suggested he would like to withdraw). But the Open Skies Treaty and the WHO Constitution are the first two treaties that the president has sought to exit on terms that appear to be in tension with the wishes of Congress.
In December 2019, Congress enacted a statutory provision directing the president to give four months’ notice before initiating a withdrawal from the Open Skies Treaty—a requirement that Pompeo ignored without explanation. And the 1948 law that first authorized U.S. membership in the WHO reserved the United States’ right to withdraw only after giving one year of advance notice and meeting all financial obligations for the current fiscal year. The Trump administration has suggested that it will comply with the first condition, but its suspension of U.S. contributions to the WHO suggests that it may not intend to comply with the second.
To the extent that the Trump administration is defying Congress as it seeks to withdraw from these two treaties, it is on shaky constitutional ground. Most legal scholars agree that the president can exit treaties without congressional authorization, so long as it is done in a manner that is consistent with international law. But where Congress has enacted clear statutory limits on executive action, no such legal consensus exists. And although the Supreme Court has never ruled directly on this issue, its approach to similar questions of unclear constitutional authority strongly suggests that Congress can enact legislation to prevent the president from unilaterally withdrawing from treaties. Given that this president has shown he is willing to withdraw from international agreements even over the objections of Congress and the broader public, it is time for Congress to use this authority to install even stronger protections for the United States’ treaties.
The Constitution is clear about how the United States can enter treaties: with the advice and consent of two-thirds of the Senate. Whereas the president negotiates treaties, it is Senate ratification that makes them eligible to become part of “the supreme law of the land.” Congress often passes legislation to implement treaties domestically—or to supersede the effects of treaties through subsequent statutes. Congress also routinely authorizes the United States to enter into international agreements through legislation, a widely accepted practice that confirms the legislature’s central role in managing U.S. treaty relationships.
But the Constitution never says explicitly how the United States should leave a treaty. Many framers viewed Congress and the president as sharing authority over treaties, as Alexander Hamilton argued in The Federalist Papers, no. 75. Thomas Jefferson went so far as to suggest that “an act of the legislature alone can declare [treaties] infringed and rescinded,” denying any presidential role in treaty exit whatsoever. In the text of the Constitution, however, the framers left the matter unsettled.
In practice, most presidents throughout history have involved Congress in the process of exiting treaties. Until the twentieth century, in fact, nearly every treaty withdrawal or termination involved some congressional action. Only modern presidents have claimed the authority to withdraw from treaties unilaterally. And only Trump has sought to do so in the face of contrary legislation.
The Supreme Court has never taken up the question of whether the president can scrap treaties in defiance of Congress, but it has provided guidance on how to resolve other instances of unclear constitutional authority. As Justice Robert Jackson noted in his concurrence in the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, presidential powers fluctuate depending on their “disjunction or conjunction with those of Congress.” Although the president’s powers are greatest when he acts with the “express or implied authorization of Congress,” he may also be able to act unilaterally in cases of congressional “indifference or quiescence.” But when the president takes actions that are “incompatible” with the will of Congress, his authority is at its “lowest ebb,” meaning that he may act only when the Constitution gives him the exclusive authority to do so.
Prior presidents have almost never acted when their powers were at this “lowest ebb.” The Supreme Court has encountered a similar question only once before, in 2015, when it decided whether Congress could statutorily compel the president to recognize Jerusalem as part of Israel. The Court concluded that Congress could not—on the grounds that the president’s constitutional authority over recognition is exclusive. But given the text and structure of the Constitution, the historical practice of treaty withdrawal, and Congress’s central role in managing treaty relations, it is unlikely that the Court would reach a similar conclusion about exiting treaties. This leaves Trump with a far weaker case for claiming the constitutional authority to withdraw from treaties over Congress’s objections. At a minimum, Congress should therefore demand an explanation of the legal basis for the president’s actions—something his administration has yet to provide.
If pressed, the Trump administration might argue that the existing provisions do not expressly prohibit treaty withdrawal if their conditions are not met—or that they unconstitutionally infringe on the president’s exclusive constitutional powers. Whatever his precise arguments, Trump’s willingness to defy Congress is likely informed by an even more hardheaded calculation: that even if his legal arguments are wrong, no one is likely to stop him. Although members of Congress and other plaintiffs have brought lawsuits challenging prior treaty withdrawals, the courts have consistently ruled against them—often without even reaching the legal merits. In some cases, the courts found that the plaintiffs were not directly affected and thus lacked the legal standing necessary to sue. In others, they concluded that congressional opposition wasn’t clear-cut enough to warrant reaching the difficult constitutional questions at play—or that those questions were political in nature and thus not subject to judicial resolution. In each case, the result has been the same: the president has been able to proceed unimpeded.
But Congress doesn’t have to take this lying down. It has its own constitutional powers, which it can use not only to limit the president’s authority to exit treaties but to help make those limits enforceable by the courts. The most important step is for Congress to enact clear and unequivocal statutory prohibitions on treaty exit when any conditions it imposes are not met. This sets the legislature’s constitutional authority squarely against that of the president and limits opportunities for the executive branch and the courts to interpret such statutes in ways that avoid the underlying constitutional conflict. Recent case law suggests that the courts are obligated to weigh in when the president unequivocally acts contrary to a statute, regardless of the political questions such intervention might raise. Congress could also try to bolster its own authority by tying those limitations to appropriations, invoking its power over the purse. And it could enact legislation authorizing private plaintiffs—or even itself—to challenge any attempt at withdrawal in the courts, improving the case for standing.
Lawmakers have already put forward proposals along these lines. Some would prohibit withdrawal from specific treaties of particular importance, such as the North Atlantic Treaty. Others would more broadly regulate the president’s authority to withdraw from, terminate, or suspend treaties altogether. Regardless of which approach it chooses, Congress will need to balance these statutory limits—practically and perhaps constitutionally—with the executive branch’s need to manage U.S. foreign policy. As a result, such legislation may need to leave the president enough discretion to adapt U.S. treaty obligations to changes in circumstance, even if it bars him from pursuing permanent adjustments without congressional input.
Of course, a president might well disregard new limits of this kind. And although the case for congressional authority over treaty exit is strong, relevant precedents are few and far between. As a result, if the dispute ends up before the courts, Congress is not certain to prevail. But the clearer Congress is about its desire to remain in a given treaty, the harder it will be for the president to withdraw from that treaty. An unequivocal statutory limit not only signals that the president should expect steep political costs if he acts unilaterally; it creates a major legal risk. As Associate Justice Brett Kavanaugh, Trump’s most recent addition to the Supreme Court, once wrote, “Few claims are as likely to provoke a skeptical, if not hostile, reaction from the courts . . . as a claim that the President has a right . . . to violate an express federal statute.” That threat alone may be enough to deter the president from defying Congress’s wishes.
The Age of Contagion Demands More Internationalism, Not Less