Presidential Power To Break American Treaties Could Face Test Over North Atlantic Alliance

Shakespeare’s Cassius asked, “Upon what meat doth this our Caesar feed that he is grown so great?” Constitutional theories are the meat that feeds today’s swollen presidency.The “unitary executive theory” is an idea percolating in America’s political and judicial debates. Its radicalism includes insistence that the president may unilaterally withdraw the nation from treaties to which the Senate has consented.Withdrawal from the North Atlantic Treaty has become topical because of the current president’s long-standing animosity toward the alliance. This has intensified because some NATO members have been uncooperative concerning the Iran war, about which they were barely consulted.Put aside the wisdom of leaving NATO — history’s most successful instrument of collective security — during the largest European war since NATO was created in 1949. Consider, though, the ramifications of this additional marginalization of Congress: postulating an inherent presidential power to withdraw from even the most consequential treaties.In “Imperial from the Beginning: The Constitution of the Original Executive,” a University of Virginia law professor, Saikrishna Bangalore Prakash, writes, “While people often speak of the Senate ‘ratifying a treaty,’ the Senate can do no such thing”:“It supplies its ‘advice and consent’ only to the making of treaties, that is, it consents to the president’s ratification of them, an act that finalizes them as international contracts and the law of the land. The Senate recognized this when it passed the following resolution for the first proposed treaty: the Senate ‘do consent to the said convention, and advise the President of the United States to ratify the same.’”But the “convention” becomes a treaty only upon Senate consent. This makes it “the supreme law of the land” (Article VI of the Constitution). Would a president unilaterally nullifying this law, which he did not unilaterally make a law, violate his duty to “take care that the laws be faithfully executed”?The NATO treaty’s Article 13 says that any party to the treaty can cease to be a party after giving one year’s notice of withdrawal. Could Congress in 1949 have conditioned its consent to the treaty by stipulating that no president could undertake an Article 13 withdrawal without its consent? If not, why not? And if Congress could have asserted its role then, why not now?Curtis Bradley of the University of Chicago Law School notes that the Constitution is silent regarding withdrawals from treaties, of which there were just seven at the Founding. Today there are thousands. Most are minor; none is as important as the NATO treaty.Modern presidents have often unilaterally withdrawn the nation from treaties. Does practice always and forever define propriety? Through the nation’s first century, Bradley says, “no president” thought the vesting of executive power in presidents “gave them the treaty termination power.” Then “presidents worked with Congress to terminate treaties.”In 2023, bipartisan congressional majorities (including Marco Rubio and 86 other senators) passed a bill that became this law: Absent a two-thirds Senate vote of concurrence (mirroring the vote to enact a treaty), or an act of Congress, “The President shall not suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty.” How would a president justify noncompliance with this law and the unilateral abrogation of another — the treaty?Presidents may unilaterally extend recognition to foreign governments, thereby establishing relations. Treaties, however, establish American obligations. The president’s primacy in foreign policy does not entail the power to exclude Congress from involvement in implementing or renouncing these obligations.Supporters of the unitary executive theory argue that the vesting of executive power in the president means a presidential monopoly of all power connected in any way to executive duties. A law professor at the University of California at Berkeley, John Yoo, brings to his advocacy of the unitary executive theory learning that is proportionate to his tenacity. He says:“The Constitution only provides for the participation of the Senate in making the treaty; therefore, everything else regarding international agreements defaults to the president.” But his brassy “therefore” cannot disguise a non sequitur.He says, “Unlike with legislation, where Congress can override a presidential veto, the Senate has no power to force the president to accept a treaty that he opposes.” But there is no such thing as a treaty the Senate opposes.Mr. Yoo says leaving NATO “would certainly be a foreign-policy disaster.” Yet his theory insists that the Constitution relegates Congress to the role of spectator at the disaster. When a theory drags its adherents into such an intellectual cul-de-sac, the theory should be relegated to the ranks of ideas that need to be reconsidered.The Washington Post

Presidential Power To Break American Treaties Could Face Test Over North Atlantic Alliance

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