Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution sets forth a definite procedure by which the President has the power to make treaties with the advice and consent of the Senate, but it is silent on who has the power to terminate them and how this power should be exercised.1 The United States terminated a treaty under the Constitution for the first time in 1798. On the eve of possible hostilities with France, Congress passed, and President John Adams signed, legislation stating that four U.S. treaties with France “shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.” 2 When he was Vice-President, Thomas Jefferson referred to the episode as support for the notion that only an “act of the legislature” can terminate a treaty.3 But commentators have since come to view the 1798 statute as a historical anomaly because it is the only instance in which Congress purported to terminate a treaty directly through legislation without relying on the President to provide a notice of termination to the foreign government.4 Moreover, because the 1798 statute was part of a series of congressional measures authorizing limited hostilities against the French Republic, some view the statute as an exercise of Congress’s war powers rather than precedent for a permanent congressional power to terminate treaties.5

During the nineteenth century, government practice treated the power to terminate treaties as shared between the Legislative and Executive Branches.6 Congress often authorized7 or instructed8 the President to provide notice of treaty termination to foreign governments during this time. On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty.9 Presidents often complied with the Legislative Branch’s authorization or direction,10 although they sometimes resisted attempts to compel termination of specific articles in treaties when the treaties did not authorize partial termination.11 On other occasions, Congress or the Senate approved the President’s termination after-the-fact, when the Executive Branch had already provided notice of termination to the foreign government.12

At the turn of the twentieth century, a new form of treaty termination emerged: unilateral termination by the President without approval by the Legislative Branch. This method first occurred in 1899, when the McKinley Administration terminated certain articles in a commercial treaty with Switzerland,13 and then again in 1927, when the Coolidge Administration withdrew the United States from a convention to prevent smuggling with Mexico.14 During the Franklin Roosevelt Administration and World War II, unilateral presidential termination increased markedly.15 Although Congress at times enacted legislation authorizing or instructing the President to terminate treaties during the twentieth century,16

, § 4, 107 Stat. 1503, 1505; Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, § 202(b), 90 Stat. 331, 340–41 (authorizing the Secretary of State to renegotiate certain fishing treaties and expressing the “sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of enactment” ). unilateral presidential termination became the norm.17

Some scholars and Members of Congress have challenged the President’s assertion of unilateral authority to terminate treaties under the rationale that treaty termination is analogous to the termination of federal statutes.18 Because domestic statutes may be terminated only through the same process in which they were enacted19 —i.e., through a majority vote in both houses and with the signature of the President or a veto override—these observers contend that treaties likewise must be terminated through a procedure that resembles their making and that includes the Legislative Branch.20 On the other hand, treaties do not share every feature of federal statutes. Whereas statutes can be enacted over the President’s veto, treaties can never be concluded without the President’s final act of ratification.21 Moreover, some argue that, just as the President has some unilateral authority to remove Executive Officers who were appointed with senatorial consent,22 the President may unilaterally terminate treaties made with the Senate’s advice and consent.23

The President’s exercise of treaty termination authority has not generated opposition from the Legislative Branch in most cases, but there have been occasions in which Members of Congress sought to block unilateral presidential action. In 1978, a group of Members filed suit in Goldwater v. Carter24 seeking to prevent President Jimmy Carter from terminating a mutual defense treaty with the government of Taiwan25 as part of the United States’ recognition of the government of mainland China.26 A divided Supreme Court ultimately ruled that the litigation should be dismissed, but it did so without reaching the merits of the constitutional question and with no majority opinion.27 Citing a lack of clear guidance in the Constitution’s text and a reluctance “to settle a dispute between coequal branches of our Government each of which has resources available to protect and assert its interests[,]” four Justices concluded that the case presented a nonjusticiable political question.28 This four-Justice opinion, written by Justice William Rehnquist, has proven influential since Goldwater, and federal district courts have invoked the political question doctrine as a basis to dismiss challenges to unilateral treaty terminations by President Ronald Reagan29 and President George W. Bush.30

Regardless of whether constitutional disputes over treaty termination are resolved in federal courts or through the political process, the power of treaty termination may depend on the specific features of the treaty at issue.31 For example, if termination of a particular treaty implicates the exercise of independent executive powers—such as the power to recognize foreign governments32 —the President perhaps may have a stronger claim to unilateral authority.33 On the other hand, if the Senate were to condition its advice and consent to a treaty on a requirement that termination only occur with the approval of the Legislative Branch, some commentators argue that the President would be bound by that condition.34 Finally, when Congress has passed legislation implementing a treaty into domestic law of the United States, the President likely lacks the authority to terminate the domestic effect of that legislation without going through the full legislative process for repeal of the statute.35

A party’s breach of treaty obligations also can affect termination and withdrawal. Under international law, a party may suspend or terminate a treaty if another party materially breaches its obligations.36 The Supreme Court has appeared to recognize that, at least in the absence of direction from Congress, the President has the power to deem a treaty that has been breached by a foreign nation void and therefore no longer binding.37 The Court also has stated that Congress possesses the power to breach and abrogate a treaty by passing later-in-time legislation that conflicts with U.S. treaty obligations.38

When considering all elements of the treaty-making process, the treaty power remains an area in which all three branches of government shape constitutional practice and influence foreign relations. The Judicial Branch determines treaties’ effect on domestic law and enforces self-executing treaty provisions in U.S. courts.39 Presidents claim authority to negotiate with foreign countries, ratify treaties approved by the Senate, interpret treaties’ terms outside the context of domestic litigation, and terminate the United States’ treaty commitments.40 The Senate maintains its authority to provide (or withhold) consent to treaties proposed by the President, and it shapes treaties’ scope and meaning through its power to condition consent on reservations, understandings, and declarations.41 Congress also plays a role when it enacts legislation implementing treaties’ requirements into U.S. statutes.42 While unresolved questions about the treaty power have persisted since the Constitution was written, treaty-making remains a unique and dynamic part of American constitutional law and practice.

Footnotes

1

See, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (plurality opinion) ( “[W]hile the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty.” ).

2

Act of July 7, 1798, ch. 67, 1 Stat. 578 (An Act To Declare the Treaties Heretofore Concluded with France, No Longer Obligatory on the United States).

3

See Thomas Jefferson, A Manual of Parliamentary Practice 52 (Samuel Harrison Smith ed., 1801) ( “Treaties being declared, equally with the laws of the U[nited] States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.” ).

4

See, e.g., Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 789 (2014) [hereinafter Bradley, Historical Gloss]; Restatement (Fourth) of Foreign Relations Law § 313, reporters’ n.2 (2018) [hereinafter Fourth Restatement]; Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 207 (2001).

5

See S. Rep. No. 34-97, at 5 (1856) (Senate Foreign Relations Committee describing the 1798 treaty abrogation statute as a “rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress alone, and under any circumstances, the power to annul a treaty.” ). Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington, J.) (treating the 1798 statute as one in a bundle of congressional acts declaring a limited “public war” on the French Republic).

6

For analysis of nineteenth century understanding and practice related to treaty termination, see Bradley, Historical Gloss, supra note 4, at 788–801; Samuel B. Crandall, Treaties, Their Making and Enforcement 423–66 (2d ed. 1916).

7

See, e.g., Joint Resolution of April 27, 1846 Concerning the Oregon Territory, 9 Stat. 109 (providing that the President “is hereby authorized, at his discretion, to give to the government of Great Britain the notice required by” a convention allowing for joint occupancy of parts of the Oregon Territory); Joint Resolution of June 17, 1874, 18 Stat. 287 (authorizing the President to give notice of termination of a Treaty of Commerce with Belgium).

8

See, e.g., Joint Resolution of January 18, 1865, 13 Stat. 566 ( “Resolved . . . That notice be given of the termination of the Reciprocity Treaty . . . and the President of the United States is hereby charged with the communication of such notice to the government of the United Kingdom.” ); Joint Resolution of March 3, 1883, 22 Stat. 641 ( “[T]he President . . . hereby is directed to give notice to the Government of Her Britannic Majesty that the provisions of each and every of the articles aforesaid will terminate . . . on the expiration of two years next after the time of giving such notice.” ).

9

In 1855, the Senate authorized President Franklin Pierce to terminate a Friendship, Commerce, and Navigation Treaty with Denmark, and the President subsequently relied on the Senate’s action in carrying out the termination. Franklin Pierce, Third Annual Message (Dec. 31, 1855) in 7 A Compilation of the Messages and Papers of the Presidents 2860, 2867 (James D. Richardson ed., 1897) ( “In pursuance of the authority conferred by a resolution of the Senate of the United States passed on the 3d of March last, notice was given to Denmark” that the United States would “terminate the [treaty] at the expiration of one year from the date of notice for that purpose.” ).

10

For example, after Congress enacted a joint resolution calling for the termination of the Oregon Territory Treaty, supra note 7, the Secretary of State informed the U.S. Ambassador to Great Britain that “Congress have spoken their will upon the subject, in their joint resolution; and to this it is his (the President’s) and your duty to conform.” S. Doc. No. 29-489, at 15 (1846). As required by the Joint Resolution of January 18, 1865, see supra note 8, the Andrew Johnson Administration terminated an 1854 treaty with Great Britain concerning trade with Canada. Letter from William H. Seward, U.S. Sec’y of State to Charles Francis Adams, Minister to the U.K. (Jan. 18, 1865) in Papers Relating to Foreign Affairs, pt. 1, at 93 (1866).

11

See, e.g., Rutherford B. Hayes, Veto of the Chinese Immigration Bill, H.R. Exec. Doc. No. 45-102, at 5 (1879) (disputing that Congress can direct the abrogation of specific articles in a treaty, but accepting that the “authority of Congress to terminate a treaty with a foreign power, by expressing the will of the nation no longer to adhere to it, is . . . free from controversy under our Constitution ” ).

12

See, e.g., Joint Resolution to Terminate the Treaty of 1817 Regulating the Naval Force on the Lakes, 13 Stat. 568 (1865) ( “[T]he notice given by the President of the United States to [the] government of Great Britain and Ireland to terminate the treaty . . . is hereby adopted and ratified as if the same had been authorized by Congress.” ); Joint Resolution of Dec. 21, 1911, 37 Stat. 627 (1911) (stating that President Taft’s notice of termination of a treaty with Russia was “adopted and ratified” ).

13

See Letter from John Hay, U.S. Sec’y of State to Ambassador Leishman (Mar. 8, 1899) in Papers Relating to the Foreign Relations of the United States 753–54 (1901).

14

See Letter from Frank B. Kellogg, U.S. Sec’y of State to Ambassador Sheffield (Mar. 21, 1927) in 3 Papers Relating to the Foreign Relations of the United States, 1927, at 230, 230–31 (1942).

15

See Bradley, Historical Gloss, supra note 4, at 807–09; Authority to Withdraw from the North American Free Trade Agreement, 42 Op. O.L.C. slip op. at 11 (Oct. 17, 2018); Fourth Restatement, supra note 4, § 303 reporters’ n.3.

16

See, e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, § 313, 100 Stat. 1086, 1104 (mandating that “[t]he Secretary of State shall terminate immediately” a tax treaty and protocol with South Africa), repealed by South African Democratic Transition Support Act of 1993, Pub. L. No.

103-149

, § 4, 107 Stat. 1503, 1505; Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, § 202(b), 90 Stat. 331, 340–41 (authorizing the Secretary of State to renegotiate certain fishing treaties and expressing the “sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of enactment” ).

17

See Bradley, Historical Gloss, supra note 4, at 807–15.

18

See, e.g., Barry M. Goldwater, Treaty Termination is a Shared Power, 65 A.B.A. J. 198, 199–200 (1979).

19

See, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998) ( “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” ); INS v. Chadha, 462 U.S. 919, 954 (1983) ( “[R]epeal of statutes, no less than enactment, must conform with Art. I.” ).

20

See, e.g., David Gray Adler, The Constitution and the Termination of Treaties 89–110 (1986).

21

For discussion of the federal law-making process, see ArtI.S7.C2.1 Overview of Presidential Approval or Veto of Bills.

22

For further discussion of the presidential power to remove officers, see ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers.

23

See, e.g., Adler, supra note 21, at 94; Kristen E. Eichensehr, Treaty Termination and the Separation of Powers, 53 Va. J. Int’l L. 247, 269 (2013).

24

444 U.S. 996.

25

Mutual Defense Treaty Between the United States of America and the Republic of China, Dec. 2, 1954, 6 U.S.T. 433.

26

For background on Goldwater, see Victoria Marie Kraft, The U.S. Constitution and Foreign Policy: Terminating the Taiwan Treaty 1–52 (1991).

27

See Goldwater, 444 U.S. at 996 (vacating with instructions to dismiss with no majority opinion).

28

See id. at 1002–05 (Rehnquist, J., concurring joined by Stewart & Stevens, JJ. & Burger, C.J.). Justice Lewis Powell also voted for dismissal, but did so based on the ground that the case was not ripe for judicial review until the Senate passed a resolution disapproving of the President’s termination. See id. at 998 (Powell, J., concurring). Justice William Brennan would have held that President Carter possessed the power to terminate the Mutual Defense Treaty with Taiwan, but his opinion centered on the President’s power over recognition of foreign governments, and not because he believed the President possessed a general, constitutional power to terminate treaties. See id.. at 1006–07 (Brennan, J., dissenting). For discussion of Goldwater in the context of the political question doctrine, see ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question.

29

In 1986, a federal district court dismissed a group of private plaintiffs’ suit seeking to prevent President Reagan from unilaterally terminating a Treaty of Friendship, Commerce, and Navigation with Nicaragua. See Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1198–99 (D. Mass. 1986), aff’d on other grounds, 814 F.2d 1 (1st Cir. 1987).

30

In 2002, the United States District Court for the District of Columbia dismissed as nonjusticable a challenge brought by 32 Members of Congress to President George W. Bush’s termination of the Anti-Ballistic Missile Treaty with Russia. See Kucinich v. Bush, 236 F. Supp. 2d 1, 14–17 (D.D.C. 2002).

31

See, e.g., Goldwater, 444 U.S. at 1003 ( “[D]ifferent termination procedures may be appropriate for different treaties.” ); Curtis Bradley, International Law in the U.S. Legal System 71 (2d ed. 2015) [hereinafter Bradley, U.S. Legal System] ( “It is possible that the President has the authority to terminate treaties in some situations but not others.” ).

32

See ArtII.S3.2.3 Modern Doctrine on Receiving Ambassadors and Public Ministers.

33

Compare, e.g., Bradley, U.S. Legal System, supra note 31, at 71 ( “[E]ven if the President does not have the authority to terminate treaties in all instances, the president may be able to terminate a treaty when the termination is related to the exercise of some other presidential power, such as the recognition of a foreign government.” ), with Goldwater, supra note 18, at 199 (arguing that separation of powers principles call for joint termination of treaties).

34

See Fourth Restatement, supra note 4, § 313, reporters’ n.6 ( “If treaty termination is a concurrent, rather than exclusive, power, it is possible that it could be limited by the Senate in its advice and consent to a particular treaty, and possibly also by Congress through statute.” ); Michael J. Glennon, Constitutional Diplomacy 156 (1990) ( “Where the Senate specifies a procedure for termination, the President is compelled constitutionally to adhere to that procedure.” ). But see Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. slip op. at 10 (Sept. 22, 2020) (contending that treaty withdrawal is an exclusive presidential power that cannot be regulated by the Legislative Branch).

35

See Julian Ku & John Yoo, Bond, The Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties, 90 Notre Dame L. Rev. 1607, 1628 (2015) ( “A President’s termination of a treaty will dissolve the formal legal obligation, but the policy of the United States will still continue because he cannot repeal the implementing legislation.” ); John Setear, The President’s Rational Choice of a Treaty’s Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. Legal Stud. S5, S15 n.20 (2002) ( “If only legislation can repeal legislation, then the formal status of implementing legislation does not change merely because the president takes some action, namely, terminating the treaty that the legislation implements.” ).

36

Vienna Convention on the Law of Treaties art. 2, Apr. 24, 1970, 1155 U.N.T.S. 331. Although the United States has not ratified the Vienna Convention on the Law of Treaties, U.S. officials have stated that its provisions concerning treaty termination and withdrawal reflect customary international law. See Fourth Restatement, supra note 4, § 303 reporters’ n.1 (collecting statements).

37

See Charlton v. Kelly, 229 U.S. 447, 473–76 (1913) (concluding that, because the “Executive Department . . . elected to waive any right to free itself” from its obligations under an extradition treaty, the Supreme Court must enforce the treaty even if had been breached and made voidable.).

38

See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) ( “It has been adjudged that Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.” ). See also ArtII.S2.C2.1.7 Legal Effect of Treaties on Prior Acts of Congress (discussing the last-in-time rule).

39

See ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties–ArtII.S2.C2.1.6 Interpreting Treaties.

40

See ArtII.S2.C2.1.2 Historical Background on Treaty-Making Power–ArtII.S2.C2.1.6 Interpreting Treaties.

41

See ArtII.S2.C2.1.2 Historical Background on Treaty-Making Power–ArtII.S2.C2.1.6 Interpreting Treaties.

42

See ArtII.S2.C2.1.5 Congressional Implementation of Treaties.