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Congress Must Protect America’s Treaties

  • Scott R.
  • Aug, 2020
  • 157
  • Trump Administration

It is not too late to stop Trump from abandoning vital international agreements

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.

Constitutional limits

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.

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