The Constitution (Article II, Section 2, second paragraph) gives the President the power to make treaties, but only with the concurrence of a 2/3 majority of the Senate.
AFAICT, the Constitution is silent on the subject of withdrawal from treaties. But ISTM like it should be symmetrical: that the President would need Senate concurrence to withdraw. And that’s clearly not the case: Presidents can and do pull us out of a treaty on their own, and nobody even suggests that he doesn’t have the power. But it just seems weird that he does.
So how is that? By what authority can the President unilaterally withdraw the U.S. from a treaty?
I’ve actually been wondering about this ever since Shrubby pulled us out of the ABM treaty 17 years ago, but obviously Trump’s brought the question back to mind.
It’s not a fully resolved question. In Goldwater v Carter, courts found that the separation of powers issues that arise from foreign relations are political questions that the courts should stay out of.
From time to time, there are noises about Congress enacting a law to require some sort of approval for us getting out of a treaty. Were that to pass, I would think that courts would be loathe to strike that down.
As a counterpoint to your assumption that the Consitution implicitly requires advice and consent to exit a treaty, a fan of executive power may argue that a similar provision for appointment of officers of the United Statea also requires advice and consent, but the President is free to fire such officers without the Senate’s consent unless there’s a law limiting the President’s power to do so (eg, judges, “for good cause,” etc)
I don’t know this but it seems likely that there are withdrawal clauses in most treaties. Given that, the Senate accepted that clause when they approved the treaty. Since the Senate doesn’t concern itself with the administration of the treaties, then it strikes me that executing the withdrawal clause is an administrative function granted to the President by the Senate when they approved the treaty.
Sorry, I may have been unclear. I wasn’t assuming anything about the Constitution. It was more that treaties are really big deals - “the supreme Law of the Land” per Article VI - and it shouldn’t be up to any one person to pull us out of one, any more than it’s up to any one person to get us into one. (And as we’re experiencing currently, it really lays us wide open to a President who is more of a bull in a china shop than anything else. (Musical accompaniment. :)))
Possibly, in the case of the inf treaty this is the clause.
Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to withdraw to the other Party six months prior to withdrawal from this Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests
Entry into the treaty specifically mentions being subject to ratification according to the Constitution of each party but the withdrawal does not.
So I guess if it’s a matter if administration the only requirement here is six months notice.
Since it’s a UN registered treaty though wouldn’t the smarter thing be to let the UN decide if there’s a violation and then go from there?
Rather than just withdrawal.
What would be the UN course of action if they decided it was violated?
Well functionally nothing, since both parties are veto holding members of the Security Council.
:dubious:
In any case Article 102 of the U.N. Charter (registration of Treaties), simply provides that a treaty not registered cannot be invoked before any organ of the UN. It is not about deciding disputes about the treaty.
I agree. The Senate has the authority to confirm treaties and once they’re confirmed they have the effect of a law. And the President must comply with the law.
But if a law includes within it a mechanism to overturn the law, then the President has the power to invoke it and effectively repeal the law.
The ABM Treaty, for example, contains within it text that says either party can withdraw from the treaty by giving six months notice. Which is what President Bush did. So he was not violating the treaty when he withdrew the United States from it.
The Senate has the sole power to enter the United States into a treaty. But once they’ve done so, the President has the power to carry out the terms of the treaty, including the terms which allow for withdrawal from the treaty.
Treaties do not speak to the method by which a party may affirm its commitment to be bound by the treaty. Per the Vienna Convention on the Law of Treaties, the contracting parties are states, as represented in manners determined by the states themselves. Subdivisions of a state are irrelevant to the commitments made.
For example, you may sign a contract to buy a new car that has tremendous implications for the jointly held assets of you and your spouse. The contract does not direct you to come to any arrangements with your spouse. That’s up to you to figure out, and it’s none of the business of the other party. That’s pretty much how treaties work.
Sure, that’s a reasonable argument. But it’s up to Congress to assert any power it thinks it has with respect to withdrawal from treaties, and as far as I’m aware, there’s been no serious effort to do so for several decades.
And because Obama’s treaty was an ‘executive agreement’, the next executive was fully free to ignore it - which he did, Which is why it was irresponsible to do foreign policy that way to begin with. Treaties are supposed to provide stability, not chaos. I suspect the Iranians went along with it because they got a lot up-front in the form of pallettes of cash.
Treaties are only useful when both sides abide by them. Otherwise, they are just a strategic weapon to be foisted on suckers. Russia was in clear violation of the ABM treaty when Bush withdrew, and they are in clear violation of this treaty. Trump is completely correct to withdraw.
Besides, this must be what Putin wants, since Trump is his puppet, right?
This Treaty, including the Memorandum of Understanding and Protocols, which form an integral part thereof, shall be subject to ratification in accordance with the constitutional procedures of each Party. This Treaty shall enter into force on the date of the exchange of instruments of ratification.
It just doesnt, and can’t change the constitutional procedures. Thereby it doesn’t nullify a states sovereignty.
Here the Constitution is silent about withdrawing from a treaty.
So if there’s an exit clause it makes sense to me that it would fall under administrating the treaty.
Still though, it seems like a treaty which is unlikely to have any avenue of enforcement aside from maybe self enforcement …law or not is really just a gentelmans arrangement.
Your perception of what it means is irrelevant. While there are ambiguities in the balance of powers between the two politics branches, there’s no basis to assert that an international agreement of any type is dispositive of that domestic relationship.
Well, do you have a better explanation of why it’s presumably the president’s decision?..since there is precedent here and doesn’t seem to be widely debated or even questioned.
Right , so that’s why it’s not the courts power…
What makes it the president’s?
We just assume that since the Constitution doesn’t assign it, it’s the presidents ?
Since only your perception of what that means is relevant