Leaving the Twilight Zone

A Congressional Check on Treaty Termination

By Cormac H. Broeg*

Abstract: This essay argues that Congress can —by a statute expressing the will of both houses— protect a treaty from presidential termination. Under this framework, when Congress expressly states its opposition to the termination of a particular treaty, it moves the president’s order to terminate the treaty into this third category where the president can rely only upon enumerated powers. In Goldwater v. Carter, the Supreme Court found a challenge to presidential treaty termination non-justiciable without forming a majority opinion, However, a statutory protection of a treaty creates a different dispute which fails to implicate any of the political question factors articulated by the Court in Baker v. Carr. While, neither of the competing analogies employed by scholars in discussing the termination power are persuasive, the treaty power’s inseparability from issues of war and peace suggest that the framers would not have vested the authority to terminate a treaty in a single individual. The framing generation’s fear of executive corruptibility and desire that the new republic would be a reliable diplomatic partner permeate their justifications for the treaty ratification process; the irreconcilability of these concerns with a plenary termination power strongly suggest that Congress can insulate treaties from a president acting unilaterally

I.         INTRODUCTION

In January 17, 2019 three days after the New York Times reported that President Trump had discussed withdrawing the United States from the North Atlantic Treaty Organization,[1] a bipartisan band of eight Senators introduced a joint resolution stating, “The President shall not suspend, terminate, or withdraw the United States from the North Atlantic Treaty . . . except by and with the advice and consent of the Senate, provided that two thirds of the Senators present concur, or pursuant to an Act of Congress.”[2] Why is this legislation, which reported out of the Senate Foreign Relations Committee eleven months later, needed to prevent a president unilaterally withdrawing from a treaty which has served as a core pillar of American foreign policy for seventy years?

Under the prevailing understanding of the treaty power pronounced in the Constitution, the president can unilaterally withdraw the United States from a treaty.[3] When the question of this practice’s legality reached the Supreme Court in Goldwater v. Carter, it found the question non-justiciable without a majority agreeing about the reason for that justiciability.[4] This Article will not examine whether a president can terminate a treaty in the absence of a clear expression of congressional will, the specific situation addressed by the Court in Goldwater. Instead, this Article will address whether Congress can—by a statute expressing the will of both its houses—protect a treaty from presidential termination.

II.         BACKGROUND

a.     The History of Treaty Termination

The Constitution does not provide a treaty termination mechanism, but the framing generation regarded statutes as at least an appropriate means for terminating treaties.[5] The debates at the Constitutional Convention and state ratifying conventions provide no discussion of the treaty termination power.[6] While John Jay and Alexander Hamilton wrote Federalists 64 and 75 in defense of the Constitution’s treaty ratification process, neither provided a direct answer about how a ratification might be undone.[7] However the framing generation did address the issue of treaty termination in the first decade of the new constitutional system. In 1798, the United States terminated its 1778 treaty of alliance with France through statutory process.[8] On July 7, 1798 as Congress considered war against France, both houses of Congress passed a bill to terminate the treaty which President Adams then signed into law.[9] The United States Supreme Court has also recognized statutes as effective instruments for treaty termination.[10]

Throughout the nineteenth century, Congress passed and presidents signed joint resolutions authorizing—and sometimes even directing—the president to terminate treaties.[11] While presidents acknowledged this congressional authority over treaty termination, they disputed congressional authority to abrogate parts of treaties, rather than modify them outright.[12] When President Pierce wanted to terminate a commercial treaty with Denmark in 1855, he first sought Senate authorization to do so and then stated that he was acting within the authority granted to him by that resolution.[13] When nineteenth century presidents did withdraw from treaties without prior authorization, Congress subsequently consented to their terminations.[14] The first presidential termination of a treaty provision without prior or post hoc authorization came in 1899 when President McKinley terminated a few clauses in a commercial treaty with Switzerland and McKinley argued the termination was required by their incompatibility with a new federal statute, rather than claiming a unilateral termination power.[15]

In the early twentieth century, the winds began to shift towards a unilateral presidential power. In 1909, the State Department drafted a memorandum for President Taft arguing that the Constitution implicitly granted the president a unilateral treaty termination power.[16] Four years later in Charlton v. Kelly, the Supreme Court held that the president could suspend treaty compliance upon determining that the other party had breached its obligations.[17] In 1927, President Coolidge became the first American president to unilaterally terminate a treaty when he withdrew the United States from a smuggling convention with Mexico.[18] The Franklin D. Roosevelt administration doubled-down on the unilateral termination authority by invoking the “sole organ” language of the Supreme Court’s 1936 decision in Curtiss-Wright.[19] With the United States taking its role as superpower after the Second World War, unilateral terminations became increasingly common.[20]

b.    The Youngstown Tripartite Framework

As unilateral treaty terminations became more common with the American president’s ascension to the role as “leader of the free world”, the Supreme Court adopted a framework to understand the limits of executive power. In his influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson presented a tripartite framework of presidential powers.[21] First “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.”[22] Implicit authorization exists when “a systematic unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned.”[23] Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority . . . there is a zone of twilight in which he and Congress may have concurrent authority.”[24] Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”[25] Under this framework, when Congress expressly states its opposition to the termination of a particular treaty, it moves the president’s order to terminate the treaty into this third category where the president can rely only upon enumerated powers.

c.     Political Question Doctrine

The Supreme Court has long held that some disputes between the executive and legislative branches are non-justiciable political questions. In Baker v. Carr, the Court identified six factors whose presence renders a dispute a non-justiciable political question:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.[26]

While disputes “touching foreign relations” often invoke one of these factors and when doing so constitute political questions,[27] “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”[28] The Baker Court briefly discussed a hypothetical dispute over treaty termination finding that “though a court will not ordinarily inquire whether a treaty has been terminated, since on that question ‘governmental action . . . must be regarded as of controlling importance,’ if there has been no conclusive ‘governmental action’ then a court can construe a treaty and may find it provides the answer.”[29]

d.    Goldwater v. Carter

The political question doctrine was the deciding factor in the first and only case heard by the Supreme Court concerning the unilateral termination power. In Goldwater v. Carter, the Court found the dispute non-justiciable without a majority opinion. The diverging opinion among the concurring justices in Goldwater establish the fault lines of a debate about the justiciability of a treaty protection statute.

In 1979, President Carter unilaterally terminated the military alliance between the United States and the Republic of China pursuant to his decision to formally recognize the People’s Republic of China as China’s legitimate government.[30] The State Department drafted a memorandum arguing that historical practice established the president’s unilateral treaty termination power.[31] In anticipation of the termination, the Senate Foreign Relations Committee debated a resolution presented by Senator Robert Byrd to require Senate approval before terminating any mutual defense treaty, but the resolution never received a floor vote.[32] Senator Barry Goldwater of Arizona and other members of Congress sued President Carter arguing that the termination was unconstitutional and violative of a recent statute requiring consultation with Congress before the termination of defense treaties.[33] Goldwater argued in the American Bar Association journal that Carter’s termination of the treaty “not only usurped powers conferred on the Congress, but . . . exercise[d] a function . . . clearly reserved to the judicial branch, the power ‘to say what the law is,’”[34] and contrary to the will of the framing generation who were “anxious to gain the respect and confidence of foreign nations by keeping our treaty commitments.”[35]

The case’s procedural history perhaps demonstrates the difficulty of the question. The district court found the case did “not present a non-justiciable political question” and that the termination of the treaty “cannot be constitutionally accomplished without the advice and consent of the United States Senate or the approval of both houses of Congress.”[36] The administration appealed to the D.C. Circuit which, hearing the case en banc, affirmed the district court’s finding of justiciability, but reversed the lower court’s decision on the merits. The court held instead that requiring Senate consent for treaty termination would “deny the President the authority necessary to conduct our foreign policy in a rational and effective manner.”[37] The president’s power under Article II was “generalized in a manner that bespeaks no such limitation upon foreign affairs powers.”[38]

The Supreme Court granted certiorari, vacated the D.C. Circuit’s decision and remanded the case to the district court for dismissal.[39] A four-justice plurality of the Court found in an opinion delivered by Justice Rehnquist that the issue presented was a non-justiciable political question, “because it involves the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”[40] The text of the Constitution was not conclusive, since “while 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.”[41] The claim of non-justiciability was more compelling than in other disputes between the political branches, “because it involves foreign relations[,] specifically a treaty commitment to use military force in the defense of a foreign government if attacked.”[42]

In his dissent, Justice Brennan argued that the plurality “profoundly misapprehend[ed] the political-question principle as it applies to matters of foreign relations.”[43] The political question doctrine does not apply “when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decision-making power.”[44] Since “[a]brogation of the defense treaty with Taiwan was necessary incident to Executive recognition of the” People’s Republic of China as the government of China, President Carter had the authority to unilaterally withdraw from the treaty under the president’s Art. 2, sec. 3 recognition power.[45]

Justice Blackmun, in an concurring opinion joined by Justice White, also rejected the plurality’s political question analysis, finding instead that the question of whether the president possessed the power to unilaterally terminate a treaty was “a substantial issue” that required more “briefing and oral argument” to ascertain.[46]

In his concurrence, Justice Powell determined that the case was not ripe; finding that “a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority” and reached a “constitutional impasse.”[47] Since neither the Senate nor the House had passed any legislation challenging the president’s authority to withdraw from the treaty, this condition had not been met.[48]

After providing this rationale, Powell applied the language of Baker to criticize the plurality’s finding of non-justiciability. First, there was no “textually demonstrable constitutional commitment of the issue” to the president.[49] Second, the dispute could be resolved by “apply[ing] normal principles of interpretation to the constitutional provisions at issue.”[50] Unlike a dispute over whether the treaty required a particular military action—which would lack such a standard and constitute an “impermissible interference” with the president’s power as commander-in-chief and “sole organ” for the nation’s diplomacy—the dispute over treaty termination “concern[ed] only the constitutional division of power between Congress and the President.”[51] Under Rehnquist’s overbroad interpretation of the political question doctrine, the president’s declaration that a treaty was “in[] effect despite its rejection by the Senate” would be a political question, despite the plain text of the Constitution “clearly resolv[ing] the dispute.”[52] Finally, if the dispute were ripe the avoiding “embarrassment from multifarious pronouncements” purpose would be harmed rather than promoted by a finding of non-justiciability.[53] Without judicial review, Congress and the President would continue to hold their “irreconcilable positions,” denying the American people and the international community the clear resolution which the Court could provide.[54]

e.     Treaty Termination Post-Goldwater

Since the Court’s finding of non-justiciability in Goldwater, presidents have made unilateral treaty termination common practice.[55] The Fourth Restatement on Foreign Relations endorsed a unilateral presidential termination power, but found authority only in “established practice” since the Court never resolved the constitutional issue.[56] President Trump has withdrawn from several treaties unilaterally without legal challenge.[57] In Kucinich v. Bush, 32 House members filed suit to contest the Bush Administration’s unilateral termination of the Anti-Ballistic Missile Treaty. The D.C. District Court granted the administration’s motion for summary judgement on the grounds that the legislators lacked standing and that “the treaty termination issue is a non-justiciable ‘political question.’”[58] While the court noted that this decision was “pursuant to Goldwater”[59] and that it found the plurality opinion “instructive and compelling,”[60] it also noted that since none of the opinions in Goldwater were expressly or implicitly endorsed by a majority of the justices, “no single rationale controls.”[61]

III.         JUSTICIABILITY ANALYSIS

The political question doctrine provides the first hurdle for enforcing our hypothetical statute. While the Goldwater plurality opinion does not control, lower courts are likely to—as the D.C. District Court found in Kucinich—find Rehnquist’s opinion persuasive. Thus, despite the distinguishing facts between Goldwater and our scenario, proving justiciability for enforcing our statute requires a refutation of the Goldwater plurality opinion. This section advances Justice Powell’s opinion as the Goldwater concurrence most in line with modern political question jurisprudence and argues that a suit to prevent termination with this statute in place would be justiciable, because the hypothetical dispute does not implicate any of the Baker factors.

If Congress passes a law requiring the president to secure the consent of the Senate to terminate a particular treaty—like the North Atlantic Treaty—and the president still denounces the treaty without Senate consent, a legal challenge to that termination would not pose a political question.[62] This scenario can be clearly distinguished from that in Goldwater, because by passing the statute Congress exhausted its political remedies to protect the treaty from termination and achieved the “constitutional impasse” which under Justice Powell’s analysis renders it ripe for judicial review.[63]

Only four of the nine justices in Goldwater joined the opinion whose reasoning would find this scenario non-justiciable and in the decades since Goldwater, the Court displayed its willingness to find disputes between the president and Congress justiciable. In Zivotofsky, the Court found justiciable a dispute between the president and Congress over a statutory requirement that the State Department list Israel as the birthplace of Jerusalem-born citizens.[64] In this conflict between Congress and president, the constitutionality of the statute to compel the executive branch to act was the matter at issue,[65] just as the constitutionality of the statute’s restraint on president’s authority would be at issue in our scenario. The Zivotofsky Court held that the statute infringed on the president’s recognition power.[66] This opinion was consistent with the Court’s expansive view of the actions authorized concerning recognition, but our scenario does not implicate the recognition power.[67]

In the face of express congressional opposition, a dispute concerning a president’s unilateral treaty termination does not invoke the political question factors articulated by the Court in Baker. First, there is no “textually demonstrable constitutional commitment of the issue” to the executive,^[68] since the Constitution is silent on the subject of treaty termination. Second, the Court can resolve the dispute by applying conventional judicial standards. The Court will apply the same interpretive tools in adjudicating the constitutionality of the termination power as it would for any other constitutional question.[69] Third, such a determination would not require “nonjudicial discretion.”^[70] While there could be secrets justifying the termination, the Court would not be asked to decide whether the United States should terminate the treaty, only whether the president could constitutionally do so. While Justice Rehnquist argued that adjudicating the termination of a treaty was comparable to adjudicating whether American troops should be deployed in accordance with its obligations, the logic of Zivotofsky distinguishes between those two questions and finds the former justiciable.[71] The Zivotofsky Court found that determining which branch had the power to decide whether the Jerusalem-born could list themselves as Israel-born was an appropriate exercise of judicial power, even though determining whether Jerusalem was in Israel would have required the Court to apply non-judicial standards.[72] Fourth, by simply determining whether the legislative branch can check the president’s power the judiciary could not be construed as “expressing lack of the respect due coordinate branches of government” any more than it could by ruling on the constitutionality of line-item vetoes or special prosecutors.[73] It is the job of the Court “to say what the law is,” even if that means venturing into territory the president claims as his exclusive domain.[74]

The fifth Baker factor provides the strongest argument for non-justiciability, but the argument also fails. Once a president denounces a treaty against the express will of Congress, a political decision has been made. However unlike in Justice Rehnquist’s example of a troop deployment, there is no “unusual need for unquestioning adherence” to a treaty termination opposed by Congress, particularly if said treaty contains a notice provision.^[75] The North Atlantic Treaty requires a year’s notice of termination before withdrawal; for that year, continued membership in NATO would be undisputed.[76] Since the harm done to the perceived stability of American foreign relations from adjudicating the question could be little greater than the harm done by the legislatively disputed termination itself, there is no “unusual need for unquestioning adherence.”

Sixth, the “potentiality of embarrassment from multifarious pronouncements” does not here—as Justice Powell believed it did not in Goldwater—provide a compelling reason for non-justiciability.^[77] Without judicial review, considerable disagreement will remain about whether the U.S. remains in the treaty, but by resolving the dispute between the legislative and executive branches the judiciary can provide clarity as to what the law is, not only to the American people, but to allies—and potential enemies—abroad.[78] As Justice Powell discussed in his Goldwater concurrence, the question of whether a treaty has been terminated is not a question of whether the United States must send troops to honor the treaty’s commitments.[79] A suit to compel the president to send troops to defend a NATO member from an invader would rightfully be classified as a political question under this factor, but the question of whether the U.S. is a party to a treaty should not.

IV.         ANALYSIS ON THE MERITS

After finding justiciability, a court would proceed to the merits of the constitutional argument. Under Justice Jackson’s Youngstown tripartite framework, a statutory protection of a treaty from unilateral presidential termination would move the president’s denunciation of that treaty out of the “zone of twilight” and thus require a showing that unilateral termination was within the “scope and elasticity afforded by what seem to be reasonable practical implications” of the president’s enumerated powers.[80] This section examines whether the presidency can meet this standard and concludes that it cannot. While, neither of the competing analogies employed by scholars in discussing the termination power are persuasive, the treaty power’s inseparability from issues of war and peace suggest that the framers would not have vested the authority to terminate a treaty in a single individual. The framing generation’s fear of executive corruptibility and desire that the new republic would be a reliable diplomatic partner permeate their justifications for the treaty ratification process; the irreconcilability of these concerns with a plenary termination power strongly suggest that Congress can insulate treaties from a president acting unilaterally.[81]

a.     The Dueling Analogies

The debate over treaty termination has been characterized as a contest between two analogies: one to the president’s executive power to appoint principal officers and the other to Congress’s legislative power to makes statutes.[82] Proponents of the appointment analogy have used it to argue for a unilateral termination power,[83] while proponents of the legislative analogy have used it to argue that two-thirds consent of the Senate should be required for termination. These dueling analogies attempt to resolve a deeper constitutional question: is the authority to make and therefore also to terminate treaties within the “executive power” vested in the president?[84] If the power to make treaties is entirely executive in nature, then the answer to this question is yes. If it is entirely legislative, then the answer is no. Unfortunately, the treaty power evades clear categorization in either camp. The treaty power was understood in the early republic and remains best understood today as an amalgamation of the two.

Under the analogy to the Appointments Clause, treaty termination would fall entirely within the president’s discretion and thus within the “executive power” vested in the president by Article II.[85] The “with the Advice and Consent of the Senate” language of the Appointments Clause mirrors the language of the Treaty Clause.[86] In Myers v. United States, the Court held that a statute requiring Senate consent for presidential removal of postmasters appointed with Senate consent was unconstitutional, because the complete authority to remove executive officials was within “the executive power” granted to the president by Article II.[87]

If a treaty is reciprocal like a statute, then two-thirds of the Senate would be required to terminate a treaty just as the Constitution requires a majority of both houses of Congress to repeal a statute. The argument for the analogy is best summed up in Senator Goldwater’s contention that though “[t]he constitution is silent as to how a treaty shall be terminated[,] [i]t is also silent on how a statute or any other shall be canceled[;] [y]et no one makes the argument that the president alone can repeal a statute.”[88] Indeed, the Court has long-held that “no power was ever vested in the president to repeal an act of Congress.”[89] Treaties can be abrogated by federal statute and vice versa under the same “last one in date will control” doctrine applied to inconsistent statutes.[90]

However, the Framers believed the treaty power to be neither a strictly executive nor a strictly legislative power. In Federalist 75, Alexander Hamilton wrote that—despite being more legislative than executive in character—the treaty power required the involvement of both branches, because belonged in neither category: [91]

The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.[92]

The lawmaking nature of treaties does not render them legislatives acts.[93] A treaty under the Constitution would be “just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.”[94]

Early treaty power jurisprudence was consistent with an understanding that the sovereignty of the United States in making treaties is not vested in the president alone. Chief Justice John Marshall declared in Foster v. Neilson, that “[a] treaty is in its nature a contract between two sovereigns, not a legislative act,” and “regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself.”[95] While the power to make and terminate treaties was exclusively the domain of the monarch in the English tradition, the Foster Court found that the Framers consciously broke from that tradition.[96]

b.    War and Peace

Treatymaking as understood by the framing generation was intertwined with issues of war and peace. In 1787, peace treaties were the means to end wars. The great wars of Europe in the century preceding the American Revolution each ended with complex, multilateral treaties.[97] In 1783, the Treaty of Paris ended the Revolutionary War, drew the young nation’s borders, and secured formal recognition from the British crown.[98] Thirteen years later, the Supreme Court held that the Confederation Congress could make treaties binding on individuals despite the lack of unanimous consent from the states to do so, because the Congressional “authority to make war, of necessity, implies the power to make peace; or the war must be perpetual.”[99]

States have entered into agreements for collective self-defense, like the North Atlantic Treaty , for millennia.[100] In 1778, the United States entered into a treaty with France to form a “defensive alliance” against Great Britain.[101] While defensive alliances with foreign powers risked entangling the United States in future foreign conflicts, they also provided a powerful deterrent to powers considering military action against the fledging republic. The core considerations behind NATO membership were contemplated by the framing generation.

The Constitution explicitly grants Congress the power to declare war.[102] Since the termination of a peace treaty shortly after its ratification would likely lead to a resumption of hostilities, the treaty power is functionally inseparable from the power to declare war. As the Constitution does not distinguish between different types of treaties, there is no reason to conclude that the same logic would not apply to a collective self-defense treaty whose continued existence (or termination) could also lead to war.[103]

This denial of executive authority to unilaterally declare war was only one aspect of the Framers’ imperative to distinguish the foreign relations power of the president from that of the English monarch.[104] Under English common law—as articulated by Blackstone—the making of war and peace was the “sole prerogative” of the monarch.[105] “For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power.”[106]

By this “same principle,” the making and termination of treaties was within the royal prerogative, since “in England the sovereign power . . . is vested in the person of the king.”[107] The English Parliament’s only check on treatymaking was the power to impeach the king’s treaty negotiators.[108]

This executive prerogative over issues of war, peace, and by extension the treaty power violated the Whiggish ideology of the framing generation. As Justice Jackson described in Youngstown regarding President Truman’s claim that the authority to seize steel mills fell was among his war powers, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”[109]

In this desire to distance American foreign policy decision-making from English royal prerogatives, the Framers required consent of the Senate for treatymaking and gave Congress the power to declare war. Would these same Framers have simultaneously intended to vest the president with a prerogative power to terminate treaties? No, by rejecting this underlying principle of a royal prerogative to make war and treaties, the Framers implied that the power to terminate treaties was not within the Constitution’s grant of executive power.

c.     Avoiding Corruptibility and Instability

Beyond the distrust of executive prerogatives, the treaty power’s structure was also the product of functionalist considerations suggesting a legislative power to protect treaties from termination. The treaty power is the focus of Federalist 64 and Federalist 75 penned by John Jay and Alexander Hamilton. Though neither Jay nor Hamilton provided an answer to the termination question, their defense of the treaty power’s constitutional structure provides two arguments against a unilateral termination power which remain relevant today: the risk of undue foreign influence over American foreign affairs and the need for the United States to be perceived abroad as a trustworthy diplomatic partner.

The Framers feared that a foreign power might buy influence over the American president and their desire to combat that threat, clearly demonstrated by the Foreign Emoluments Clause,[110] also influenced the structure of the treaty power. Both Hamilton and Jay recognized the corruptibility of a single individual as a threat to the security of the nation;[111] identifying the threat as one of the reasons for the Constitution’s requirement of Senate consent for treaty ratification:

An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.[112]

While this concern did not lead Hamilton to conclude that the president only serve as a “ministerial servant of the Senate” in treaty negotiations, it did lead him to conclude that the “joint possession of the [treaty power], by the President and Senate, would afford a greater prospect of security, than the separate position of it by either of them.”[113] Though a real danger if the power was held in the president alone, when held jointly by the president and the Senate, Jay argued that the risk of corruption was “not supposable.”[114]

Even setting aside the potential for corruption, leaving treaty termination at the sole discretion of the executive hinder another rationale for the constitutional structure of the treaty power by making the United States a less reliable negotiating partner. In Federalist 64, John Jay rejected the argument that treaties “should be repealable at pleasure,” because “it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.”[115] The Framers understood that republican politics could be more volatile than that of the European powers with which the young nation would negotiate; while a monarch may rule for decades and a royal family for centuries, American presidents would serve only four-year terms. Placing an uncheckable treaty termination power in new hands every four years enables a fickle foreign policy and inspires little confidence abroad. The ability of Congress to thwart a president’s desire to terminate a treaty promotes stability in foreign policy and communicates reliability.

In achieving this goal, a Congressional power to protect individual treaties does little harm to the functional benefits of a general doctrine allowing unilateral treaty termination as implicitly approved by Congressional inaction. There is a functionalist argument for unilateral treaty termination: it allows the president to react swiftly to a changing world. This purpose is achieved by the default placement of treaty termination within the Youngstown framework’s “twilight zone.”[116] Even without control over the treaty power, the modern president retains considerable flexibility in foreign policy since the overwhelming majority of the international agreements made by the United States today are executive agreements,[117] not treaties. A doctrine allowing the president to terminate treaties generally while recognizing congressional authority to thwart the termination of particular treaties vital to the national interest from presidential whim and the threat of foreign influence, avoids both the dangers of an unchecked executive and overbearing legislative shackles.

V.         CONCLUSION

The Constitution does not provide the president with the authority to unilaterally terminate a treaty protected by statute. This executive power is irreconcilable with the rationale for the framing of the treaty ratification process articulated in the Federalist Papers. While a functionalist argument may favor a presidential power to unilaterally terminate a treaty when Congress is silent, the merits of this argument do not extend to terminations made despite express legislative disapproval. Though our world would be unrecognizable to the Framers, their concerns about placing the security of the nation’s treaties entirely at the discretion of a single individual are as legitimate now as they were in 1787. By accepting the principle that Congress may shield a treaty from presidential termination, the United States can communicate to the world that it will honor its core international commitments no matter who is currently occupying the White House.