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Volume 53 — Number 2 — Page 247
RGI NI A
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Article
Treaty Termination and the
Separation of Powers
Kristen E. Eichensehr
© 2013 by the Virginia Journal of International Law Association. For
reprint permissions, see http://www.vjil.org.
Treaty Termination and the Separation of
Powers
KRISTEN E. EICHENSEHR *
The President, Congress, and the courts have long disagreed about who has
the power to terminate treaties. Presidents have claimed the power to terminate
treaties unilaterally, while Congress and particularly the Senate have argued
that because the political branches share the power to make treaties, they should
also share the power to terminate them. Unilateral presidential treaty
terminations have prompted lawsuits by congressmen and private parties, Senate
hearings and reports, and a divided academic literature. Meanwhile, the courts
have deemed treaty termination to be a nonjusticiable political question.
This Article reframes the debate over treaty termination by looking to treaty
formation and analogizing to the Supreme Court’s precedents on the
Appointments Clause and removal power. The Appointments Clause uses the
same “by and with the advice and consent of the Senate” language as the Treaty
Clause and is found in the same sentence of the Constitution. Proponents of
presidential power have relied on the Supreme Court’s Appointments Clause
jurisprudence to argue that Congress cannot limit the President’s termination
power. This Article agrees that the oft-proposed requirement of Senate consent
prior to treaty termination would be unconstitutional by analogy to the
Appointments Clause. However, the Appointments Clause analogy points
toward a new solution to the termination debate — namely, that the Senate
could impose a “for-cause” restriction on the President’s termination power. In
particular, this Article proposes a “for-cause” limitation implemented via a
* Associate, Covington & Burling LLP; J.D. Yale Law School, 2008. The views expressed in the
Article are not necessarily those of Covington & Burling LLP or any of its clients. The author thanks
Raechel Anglin, Sarah Cleveland, Oona Hathaway, Rebecca Ingber, Judge Brett M. Kavanaugh,
David A. Koplow, David Pozen, Richard Re, Peter Trooboff, and David Zionts for helpful
conversations and comments on earlier drafts, and Jonathan Black, Sarah Bossé, Scott Phillips, Ethan
Simon, and the staff of the Virginia Journal of International Law for their assistance in bringing this
Article to publication. Any errors are the author’s alone.
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reservation, understanding, or declaration at the time of a treaty’s ratification.
Recognizing the constitutionality of a “for-cause” termination reservation
alters the terms of the ongoing debate about the interchangeability of
congressional-executive agreements and Article II treaties. Both proponents and
opponents of interchangeability have noted that the President’s ability to
terminate Article II treaties unilaterally makes treaties unreliable as compared
to congressional-executive agreements, which cannot be terminated absent action
by both Congress and the President. A “for-cause” termination reservation
would increase the reliability of Article II treaties and so would shift the
comparative utility of congressional-executive agreements and Article II treaties.
Introduction ................................................................................................. 249
I.
The Treaty Power in the Constitution ........................................... 252
II.
The Debate over Treaty Termination ............................................ 255
A. Treaty Termination in the Federal Courts ........................... 256
B.
Theories of Treaty Termination ........................................... 263
C. Analogizing to the Appointments Clause ............................ 269
1.
Justifying the Analogy ................................................. 269
2.
Evolution of Appointments Clause Precedent ......... 271
III. Legislative Means To Restrict Unilateral Presidential Termination
275
A. Problems with a Procedural Limitation ............................... 276
1.
Constitutional Hurdles to a Congressional Consent
Limitation........................................................... 277
2.
Practical Problems with a Congressional Consent
Limitation........................................................... 278
B.
A Substantive “For-Cause” Limitation on Termination .... 279
1.
Constitutional Underpinnings of a “For-Cause”
Restriction .......................................................... 279
2.
“For Cause” for Treaties............................................. 281
C. Legislation Versus Reservation ............................................. 286
1.
Problems with Legislation on Termination ............... 287
2.
Conditional Consent as a Superior Mechanism ........ 288
IV. Practical Consequences of a “For-Cause” RUD ........................... 294
A. Enforceability ......................................................................... 294
B.
Interchangeability................................................................... 299
C. When and Why ...................................................................... 302
Conclusion .................................................................................................... 307
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INTRODUCTION
In December 1978, President Carter announced that the United States
would recognize the People’s Republic of China and would simultaneously
terminate the mutual defense treaty between the United States and Taiwan.
In December 2001, President Bush announced his intention to terminate
the Anti-Ballistic Missile Treaty between the United States and the states
of the former Soviet Union. Both presidential terminations sparked
lawsuits in federal court by congressmen who claimed that under the
Constitution, the President shares the treaty power with the Senate or
Congress and therefore that unilateral presidential terminations are
unconstitutional. The federal courts dismissed both cases on a variety of
grounds, most notably the political question doctrine, ripeness, and
standing. The courts recognized the importance of the constitutional
issues involved, but decided that the judiciary, for one reason or another,
was not the appropriate forum to resolve the questions.
Issues of justiciability aside, the answer to the constitutional question
remains contested. Article II, § 2 of the U.S. Constitution specifies that the
President “shall have power, by and with the advice and consent of the
Senate, to make treaties, provided two thirds of the Senators present
concur.”1 No provision of the Constitution, however, addresses treaty
termination. The courts have deemed the historical evidence inconclusive.
The Framers did not discuss treaty termination at the Constitutional
Convention, and practice since that time has varied. Presidents have
terminated treaties unilaterally, pursuant to Senate consent, and pursuant
to congressional request, among other permutations.
Academic and Senate debates on the issue have raged since President
Carter’s termination of the Taiwan mutual defense treaty. On one side are
those who argue that the President has the unilateral power to terminate
treaties. On the other side are those who favor some form of
congressional participation. Until this Article, all those who have
contemplated congressional participation in termination, including the
Senate Foreign Relations Committee, have envisioned a procedural
requirement, namely consent by either two-thirds of the Senate or by a
majority of both houses of Congress.2
1. U.S. CONST. art. II, § 2.
2. For example, in a hearing at the time of President Carter’s termination of the Taiwan treaty,
Senate Foreign Relations Committee Ranking Member Jacob K. Javits asked State Department Legal
Adviser Herbert Hansell, “Suppose the Senate wrote into a treaty a reservation that it may not be
terminated without the consent of two-thirds of the Senate. Would that be binding on the President
as a reservation?” COMM. ON FOREIGN RELATIONS, U.S. SENATE, TREATY TERMINATION:
HEARINGS BEFORE THE COMMITTEE ON FOREIGN RELATIONS, UNITED STATES SENATE,
NINETY-SIXTH CONGRESS, FIRST SESSION ON S. RES. 15, RESOLUTION CONCERNING MUTUAL
DEFENSE TREATIES, at 212 (1979).
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To solve the problem of treaty termination, this Article turns to treaty
formation and a substantive limitation on termination. In lawsuits filed to
challenge treaty terminations, the congressmen acted too late. They tried to
protect their alleged constitutional right to have a voice in treaty
termination only after unilateral presidential action to terminate treaties.
Instead, Congress should act ex ante. As part of its “advice and consent”
function, the Senate’s power to attach reservations, understandings, and
declarations (RUDs) to treaties is long-standing and undisputed. Pursuant
to that authority, the Senate could attach a RUD addressing termination to
a treaty at the time of ratification. The Senate could not impose a treaty
termination RUD on its own; rather the President, in ratifying the treaty
after Senate approval, would have to consent to the termination RUD as
he does to all RUDs. By acting together ex ante, the Senate and the
President could avoid the ex post constitutional conflict that the courts
have held themselves powerless to resolve.
This Article proceeds in four parts. Part I provides an overview of the
treaty power in the Constitution, including the modern mechanics of treaty
ratification and the debate over the extent to which treaties and
congressional-executive agreements are interchangeable.
Part II outlines the debate about the power to terminate treaties. It
discusses federal court cases on treaty termination and then turns to the
theoretical underpinnings of the termination debate as set out by
commentators, the executive branch, and Congress. Part II also introduces
the analogy between the Treaty Clause and the Appointments Clause and
conversely between treaty termination and the removal power. Due to the
textual proximity of the Treaty Clause and the Appointments Clause in
Article II, § 2, numerous commentators and litigants have invoked the
Appointments Clause as an analogy in the debate over unilateral
presidential termination.3 But this Article goes further, providing a
3. See, e.g., Memorandum from John C. Yoo & Robert J. Delahunty to John Bellinger, III, Senior
Associate Counsel to the President and Legal Adviser to the Nat’l Sec. Council regarding the
Authority of the President To Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001),
available at http://www.justice.gov/olc/docs/memoabmtreaty11152001.pdf [hereinafter OLC Treaty
Termination Memo]; Brief for the United States in Opposition to Certiorari at *17–*18, Goldwater v.
Carter, 444 U.S. 996 (1979) (No. 79-856), 1979 U.S. Briefs 856; DAVID GRAY ADLER, THE
CONSTITUTION AND THE TERMINATION OF TREATIES 94–96 (1986); Curtis A. Bradley & Jack L.
Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399, 453–54 (2000);
Michael J. Glennon, The Constitutional Power of the United States Senate To Condition Its Consent to Treaties,
67 CHI.-KENT L. REV. 533, 534 (1991); Louis Henkin, Litigating the President’s Power To Terminate
Treaties, 73 AM. J. INT’L L. 647, 653 & n.30 (1979); James J. Moriarty, Congressional Claims for Treaty
Termination Powers in the Age of the Diminished Presidency, 14 CONN. J. INT’L L. 123, 160–64 (1999); Nancy
J. Murray, Treaty Termination by the President Without Senate or Congressional Approval: The Case of the Taiwan
Treaty, 33 SW. L.J. 729, 741–42 (1979); Randall H. Nelson, The Termination of Treaties and Executive
Agreements by the United States: Theory and Practice, 42 MINN. L. REV. 879, 887, 1111–12 (1958);
Comment, Resolving Treaty Termination Disputes, 129 U. PA. L. REV. 1189, 1208 (1981); David J.
Scheffer, Comment: The Law of Treaty Termination as Applied to the United States De-Recognition of the
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theoretical justification for the analogy and then using it to develop a novel
proposal. This Article agrees with proponents of executive power that the
oft-proposed requirement of Senate consent prior to a treaty termination
would be unconstitutional. However, it parts ways with the presidential
power proponents in arguing, based on the Supreme Court’s broader
removal and separation-of-powers jurisprudence, that the Senate may
impose a “for-cause” restriction on the President’s unilateral termination
power.
Part III discusses the various legislative means that could be used to
restrict unilateral presidential terminations. The Senate Foreign Relations
Committee at the time of President Carter’s termination of the Taiwan
treaty and academic commentators since then have proposed a
requirement of Senate consent to termination. But this Article argues,
based in part on the Supreme Court’s Appointments Clause and removal
jurisprudence, that such a procedural restriction would be unconstitutional.
It then proposes a different restriction — a substantive “for-cause”
limitation on unilateral presidential termination — and argues that such a
substantive restriction would be constitutionally permissible. Part III
concludes by proposing that a substantive restriction should be enacted via
a RUD at the time of a treaty’s ratification, rather than by legislation.
Part IV discusses the enforceability of a “for-cause” termination RUD,
how the RUD would affect the debate over the interchangeability of
treaties and congressional-executive agreements, and the practical
questions of why and when a “for-cause” RUD might be attached to a
treaty.
Republic of China, 19 HARV. INT’L L.J. 931, 989–90 (1978); John C. Yoo, Rejoinder: Treaty Interpretation
and the False Sirens of Delegation, 90 CAL. L. REV. 1305, 1319 (2002) (“Just as the President retains the
power to remove executive branch officials, even though he shares the appointments power with the
Senate, he also has the power to terminate treaties. Both are the result of the textual vesting of all
unenumerated executive powers in the President.” (citation omitted)); cf. Oona A. Hathaway, Treaties’
End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236, 1332
& n.283 (2008) (discussing congressional-executive agreements and arguing that Congress “probably
cannot . . . condition its approval of an agreement on the requirement that it participate in
subsequent decisions to modify or withdraw from agreements through any process other than the
enactment of a statute — for example, through majority votes in both houses of Congress without a
requirement of presentment”); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on FreeForm Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (“[T]he Appointments
Clause in the second half of clause 2 must at least be considered in interpreting the Treaty Clause in
the first half of clause 2.”). But see Arthur Bestor, Respective Roles of Senate and President in the Making and
Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH.
L. REV. 1, 29–31 (1979) (rejecting the analogy).
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THE TREATY POWER IN THE CONSTITUTION
The Constitution begins, but does not end, the debate about treaty
termination. Article II, § 2 includes both the Treaty Clause and the
Appointments Clause:
[The President] 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 . . . .4
The section thus specifies the procedure for making treaties, but does not
address their termination. Neither do any of the Constitution’s other three
references to treaties.5 The records of the Constitutional Convention are
no more helpful: the Framers simply did not discuss treaty termination.6
As it operates today, the Treaty Clause process for making treaties in
effect requires Senate consent, rather than Senate advice.7 The Senate does
not act as an advisory body in negotiating treaties, although the executive
branch may consult individual Senators, such as those on the Foreign
Relations Committee, particularly to help smooth the way for ratification
after the treaty is negotiated.8 After negotiations with treaty parties, the
President or executive branch officials sign the treaty.9 Signing the treaty
does not make the treaty effective for the United States, but rather triggers
only an obligation not to defeat the “object and purpose” of the treaty.10
The President, with a message from the Secretary of State, then
transmits the treaty to the Senate, requesting its advice and consent and
4. U.S. CONST. art. II, § 2.
5. See id. art. I, § 10; id. art. III, § 2; id. art. VI; see also Made in the USA Found. v. United States,
242 F.3d 1300, 1312–13 (11th Cir. 2001).
6. 14 MARJORIE J. WHITEMAN, DIGEST OF INTERNATIONAL LAW 461 (1970) (explaining that
treaty termination “was not discussed in the debates of the Constitutional Convention in
Philadelphia” (quoting Deputy Assistant Legal Adviser for Treaty Affairs Whittington, “Termination
of Treaties: International Rules and Internal United States Procedure,” memorandum, Feb. 10,
1958)); see also ADLER, supra note 3, at 84; LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED
STATES CONSTITUTION 443–44 n.4 (2d ed. 1996) (explaining the debate over the Treaty Clause at
the Constitutional Convention, with no mention of treaty termination).
7. See HENKIN, supra note 6, at 177 (“In a word, ‘advice and consent’ has effectively been reduced
to ‘consent.’ The Senate does not formally advise on treaties before or during negotiations.”);
TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES
SENATE, S. PRT. NO. 106-71, at 2–3 (Jan. 2001) [hereinafter THE ROLE OF THE UNITED STATES
SENATE]; id. at 117 (“What Presidents generally seek from Senators, however, is not advice in
advance but consent after the fact — after negotiations have been completed . . . . Nevertheless, the
Senate often provides a measure of after-the-fact ‘advice’ along with its ‘consent.’”).
8. THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 117.
9. For a detailed explanation of the U.S. process of treaty ratification, see id. at 6–14, 117–53.
10. Michael J. Glennon, The Senate Role in Treaty Ratification, 77 AM. J. INT’L L. 257, 273–76 (1983).
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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providing detailed article-by-article analysis prepared by the Department of
State.11 Upon receipt, the Senate refers the treaty to the Senate Foreign
Relations Committee.12 The Committee may hold hearings and propose
RUDs to accompany the treaty.13 After a majority vote, the Committee can
recommend that the full Senate give its advice and consent to the treaty,
subject to whatever RUDs the Committee has included in the resolution of
ratification transmitted to the full Senate.14 For the Senate to “consent” to
the treaty and RUDs, two-thirds of Senators present must vote in favor of
the resolution of ratification.15 If the treaty receives the required Senate
consent, the treaty, along with the proposed RUDs, is delivered to the
President.16 The President then decides whether to “make” — in
international law terms, ratify — the treaty.17 The RUDs attached by the
Senate act as a counteroffer to the treaty the President proposed to the
Senate.18 The President may make the treaty, but only if he agrees to the
RUDs upon which the Senate has conditioned its consent.19 Ratification
occurs when the President signs an instrument of ratification, which brings
the treaty into effect for the United States.20 If the treaty requires
implementing legislation, the House of Representatives and the Senate
must both approve the legislation by majority vote, and, like any other
statute, the President must sign it.21
In recent decades, Article II treaties have become less common than
sole executive and congressional-executive agreements as a means of
concluding international agreements.22 Commentators are divided about
the constitutionality and merits of the various ways of concluding
international agreements.23 Some argue in favor of full, or nearly full,
interchangeability between treaties and congressional-executive
11. THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 7, 118.
12. Id. at 7, 120–21.
13. Id. at 122–26.
14. Id. at 7, 136.
15. Id. at 11, 138–42.
16. Id. at 12, 148–49.
17. See HENKIN, supra note 6, at 177, n.* (“The Senate gives consent to making the treaty, the
President makes it. If it had been previously signed for the United States (by authority of the
President), the President later ratifies it for the United States (after he obtains Senate consent).”);
THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 12, 152–53.
18. See generally THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 12, 152–53 n.38.
19. Id. at 12.
20. Id. After ratification, “the President then directs the Secretary of State to take any action
necessary for the treaty to enter into force.” Id. at 12, 149–50.
21. Id. at 12–13.
22. Hathaway, supra note 3, at 1287 (“The average number of treaties concluded each year has
grown from slightly over one per year during the first fifty years of the republic to about twenty-five
per year during the 1990s. Executive agreements, on the other hand have gone from one on average
every two years during the first fifty years of the republic to well over three hundred per year.”).
23. For an overview of the debate over interchangeability, see Curtis A. Bradley & Trevor W.
Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 469–473 (2012).
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agreements.24 This argument most often rests on the view that treaties,
which involve only the Senate and are subject to effective veto by onethird-plus-one of the Senate, are less democratic than congressionalexecutive agreements, which require only a majority vote in both houses,
and that congressional-executive agreements are therefore superior.25 An
underlying and related premise of the argument is that congressionalexecutive agreements are often easier to enact than Article II treaties, and
therefore that employing congressional-executive agreements will lead to
more international commitments, which proponents of this view often
favor.26 Others reject the broad use of congressional-executive agreements
as an unconstitutional subversion of the Treaty Clause.27 They argue that
24. See, e.g., HENKIN, supra note 6, at 217 (“[I]t is now widely accepted that the CongressionalExecutive agreement is available for wide use, even general use, and is a complete alternative to a
treaty: the President can seek approval of any agreement by joint resolution of both houses of
Congress rather than by two-thirds of the Senate.”); Bruce Ackerman & Daniel Golove, Is NAFTA
Constitutional?, 108 HARV. L. REV. 799 (1995) (arguing that NAFTA’s conclusion as a congressionalexecutive agreement was permissible and that the interchangeability of treaties and congressionalexecutive agreements was established during a constitutional moment in the aftermath of World War
II); Hathaway, supra note 3, at 1241 (“[N]early everything that is done through the Treaty Clause can
and should be done through congressional-executive agreements approved by both houses of
Congress . . . . [A] congressional-executive agreement that is expressly approved by Congress is more
legitimate and more reliable than a treaty, and it can and should be used for even the most important
international commitments.”).
25. See, e.g., Hathaway, supra note 3, at 1241 (“[C]ompared to congressional-executive agreements,
treaties have weaker democratic legitimacy, are more cumbersome and politically vulnerable, and
create less reliable legal commitments.”).
26. See id. (“The congressional-executive agreement . . . is less subject than is a treaty to
stonewalling by an extreme minority, and rarely requires the passage of separate implementing
legislation to enter into effect.”); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive
or Presidential Agreements: Interchangeable Instruments of National Policy (pt. 1), 54 YALE L.J. 181, 187 (1945)
(“[O]ur constitutional law today makes available two parallel and completely interchangeable
procedures, wholly applicable to the same subject matters and of identical domestic and international
legal consequences, for the consummation of intergovernmental agreements.”).
27. See Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 671
(1944) (“Whatever justification there may be for the executive agreement within its proper scope or
for congressional legislation within the authority of Congress, there is no constitutional warrant
whatever for the suggestion that the President has an option to submit his compact either to the
Senate as a treaty, . . . or to the Congress for majority approval.”); id. at 677; Edwin Borchard, Treaties
and Executive Agreements—A Reply, 54 YALE L.J. 616 (1945) (writing in rebuttal to McDougal & Lans,
supra note 26); Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV.
961, 993–1009 (2001) (proposing a theory of “constitutional increments” as a critique of both
Ackerman & Golove, supra note 24, and Tribe, supra note 3, and explaining that consistent practice of
using congressional-executive agreements for trade pacts and treaties for arms control and human
rights undermines the full interchangeability position); Tribe, supra note 3 (disagreeing with Ackerman
& Golove, supra note 24, and arguing that NAFTA had to be concluded as a treaty); John C. Yoo,
Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757, 821
(2001) (arguing that congressional-executive agreements are permissible “in areas over which
Congress already possesses plenary constitutional authority, such as international trade and finance,”
but that treaties are required “when the federal government reaches international agreements on
matters outside of Article I, Section 8, or over which the President and Congress possess concurrent
and potentially conflicting powers.”).
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the Framers designed the Treaty Clause specifically to make it difficult for
the United States to enter “entangling alliances” that could endanger the
sovereignty of the fledgling United States and also to protect sectional
interests.28
As related to the termination question this Article addresses, the debate
about formation of international agreements is instructive for two reasons.
First, even proponents of interchangeability acknowledge that some
subjects can be addressed only via Article II treaties,29 and so for at least
those subjects (and likely many others that will continue to be addressed
through the Article II process for various reasons), Article II treaties will
continue to be ratified, making their eventual termination a live question.
Second, the differing emphases on the relative power of Congress and the
President that divide proponents and opponents of congressionalexecutive agreements also underlie the debates between those who favor
Senate or congressional consent prior to treaty termination and those who
argue for unilateral presidential termination.
The next Part turns from treaty formation to treaty termination.
II.
THE DEBATE OVER TREATY TERMINATION
The Constitution’s silence on treaty termination has engendered debate
over whether the President may terminate treaties unilaterally, or whether
there is some role for Congress, or at least the Senate, in treaty termination
decisions.30 Some argue that unilateral presidential termination is
28. See ADLER, supra note 3, at 88, 96–97; HENKIN, supra note 6, at 175 (“Because they took
treaties and international obligations seriously, the Framers were not eager for the United States to
conclude treaties lightly or widely, and were disposed to render it difficult to make them.”); id. at 442
n.2 (stating, “[c]learly the prevailing mood at the [Constitutional] Convention was that it should not
be too easy to make treaties” and citing, inter alia, statements by Gouverneur Morris, James Madison,
James Wilson, Thomas Jefferson, and George Washington); John C. Yoo, Review Essay, Politics as
Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV.
851, 880 (2001); cf. President George Washington’s Farewell Address (Sept. 17, 1796), in
PRESIDENTIAL DOCUMENTS 18, 24 (J.F. Watts & Fred L. Israel eds., 2000) (explaining that it would
be “unwise” and “unnecessary” to extend the United States’ international commitments); President
Thomas Jefferson’s First Inaugural Address (Mar. 4, 1801), in PRESIDENTIAL DOCUMENTS, id. at 28,
30 (explaining his policy of “peace, commerce, and honest friendship with all nations, entangling
alliances with none”).
29. Hathaway, supra note 3, at 1345–49 (identifying “(1) cession of territory, (2) extradition, and
(3) disabilities of aliens” as areas in which treaties are required because “an international agreement
requires the federal government to exercise powers beyond those granted to Congress”).
30. E.g., 5 GREEN HAYWOOD HACKWORTH, DIGEST OF INTERNATIONAL LAW 330 (1943)
(“The question as to the authority of the Executive to terminate treaties independently of the
Congress or of the Senate is in a somewhat confused state. Although the Constitution contains
provision with reference to the making of treaties, it is silent with respect to their abrogation . . . . No
settled rule or procedure has been followed.” (quoting 1936 State Department memo to President
Roosevelt)); Tim Wu, Treaties’ Domain, 93 VA. L. REV. 571, 589 n.57 (2007) (“The exact amount of
authority the President has to terminate treaties is debated.” (citing HENKIN, supra note 6, and
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permissible with regard to all, or virtually all, treaties.31 Others argue that
whether the President may unilaterally terminate a treaty depends on the
subject matter of the particular treaty at issue.32 Still others —
prominently, the Senate — have taken the broader position that
congressional involvement in termination is always required.33
A.
Treaty Termination in the Federal Courts
The modern debate over treaty termination arose when President Carter
announced in December 1978 that he would terminate the mutual defense
treaty between the United States and the Republic of China (Taiwan)
pursuant to Article X of the treaty, which provided for termination by
either party with one year’s notice.34 The People’s Republic of China had
Goldwater v. Carter, 444 U.S. 996 (1979)).
31. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 339, Reporters’ Note 1 (1987); HENKIN, supra note 6, at 214; id. at 214, n.* (“Especially with the
changed character of war and its place in international relations, Congress will probably be unable to
claim plausibly that the maintenance or termination of treaties is intimately related to war or
peace . . . .”); Henkin, supra note 3, at 651 (endorsing unilateral presidential termination, except where
such termination would take the United States into war); see also Glennon, supra note 3, at 561; Yoo,
supra note 28, at 873–74 (“[M]ost commentators, courts, and government entities believe that the
President may terminate a treaty unilaterally. The President retains this authority due to his leadership
in foreign affairs . . . and his structural superiority in conducting international relations.” (citations
omitted)); Yoo, supra note 3, at 1310 (“[T]he President controls the power over termination.”); OLC
Treaty Termination Memo, supra note 3.
32. See, e.g., TREATY TERMINATION HEARINGS, supra note 2, at 589 (“‘[T]he very fact that the
Constitution does not prescribe a mode of treaty termination suggests that the framers did not think
any one mode appropriate in all cases, and therefore left the matter to be resolved in light of the
particular circumstances of each situation. The subject of a particular treaty, for example, could be a
relevant factor. When a treaty creates private rights, it closely resembles the sort of law that cannot be
repealed except by Congress. Thus, when the termination of a commercial treaty is at issue, the case
for mandatory congressional involvement is stronger than when the fate of a defense pact is
involved.’” (quoting Lawrence Tribe, A Constitutional Red Herring: Goldwater v. Carter, NEW REPUBLIC
(Mar. 17, 1979))); Anna Mamalakis Pappas, The Constitutional Allocation of Competence in the Termination of
Treaties, 13 N.Y.U. J. INT’L L. & POL. 473, 521 (1981); Kenneth C. Randall, The Treaty Power, 51 OHIO
ST. L.J. 1089, 1091 (1990) (“Where article II of the Constitution empowers the executive to govern
exclusively over a particular topic, the President may unilaterally make, reinterpret, and terminate
executive agreements without any senatorial consent. Conversely, where article I gives the Congress
authority over a particular topic, or where articles I and II distribute authority over that topic to both
the Congress and the executive, the President must establish either a treaty with the Senate’s consent
or at least an executive agreement with congressional authorization. In such cases, the President may
neither unilaterally reinterpret nor terminate that treaty or executive agreement.”); Resolving Treaty
Termination Disputes, supra note 3, at 1229.
33. See ADLER, supra note 3, at 250 (arguing that the Supreme Court in Goldwater v. Carter “shirked
its duty” and “should have held that a treaty can be terminated only by the treaty-making power, to
wit, the President and the Senate”); Raoul Berger, The President’s Unilateral Termination of the Taiwan
Treaty, 75 NW. U. L. REV. 577 (1980); Bestor, supra note 3; Stefan A. Riesenfeld, The Power of Congress
and the President in International Relations: Three Recent Supreme Court Cases, 25 CAL. L. REV. 643, 660
(1937); David A. Schnitzer, Note, Into Justice Jackson’s Twilight: A Constitutional and Historical Analysis of
Treaty Termination, 101 GEO. L.J. 243 (2012).
34. Goldwater v. Carter, 617 F.2d 697, 700 (D.C. Cir. 1979) (quoting the U.S.-Taiwan Mutual
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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demanded the termination of the U.S.-Taiwan treaty as a condition to
establishing full diplomatic relations with the United States.35
On December 22, 1978, a group of Senators filed suit in the U.S.
District Court for the District of Columbia to block President Carter’s
termination of the Taiwan treaty absent Senate or congressional consent.36
Although the Supreme Court ultimately granted, vacated, and remanded
the case with instructions to dismiss,37 the arguments made to and
accepted by the federal courts in Goldwater v. Carter are instructive both as
an overview of arguments echoed by the academic literature and because
they represent the fullest consideration of the treaty termination question
by the federal courts to date.
The U.S. Court of Appeals for the D.C. Circuit heard the appeal en banc.
After determining that the plaintiff Senators had standing to bring the
case,38 a majority of the en banc D.C. Circuit rejected two reasons given by
the district court for invalidating the President’s unilateral termination and
advanced eight reasons that, taken together, justified reversal of the district
court and the consequent holding that the President could unilaterally
terminate at least the Taiwan treaty.
The D.C. Circuit first rejected the argument that because Article II, § 2
of the Constitution requires Senate consent to enter a treaty, Senate
consent must necessarily be required to exit one. The court noted that
such was not the case in the Appointments Clause context, which is also
governed by Article II, § 2. The court explained that the Supreme Court in
Myers v. United States39 held that Senate consent was not required to remove
a Senate-confirmed postmaster.40
Defense Treaty).
35. Id.
36. Id. at 701. For an overview of the entire Goldwater v. Carter litigation from the district court to
the Supreme Court, see Alona E. Evans, Decision, 74 AM. J. INT’L L. 441, 441–48 (1980).
37. Goldwater v. Carter, 444 U.S. 996 (1979) (granting, vacating, and remanding with instructions
to dismiss the complaint).
38. Id. at 701–03. Since the D.C. Circuit’s decision in Goldwater, the Supreme Court has limited
legislative standing. See Raines v. Byrd, 521 U.S. 811 (1997). The D.C. Circuit’s explanation for why
the plaintiffs in Goldwater had standing does not survive Raines. See id. at 823 (limiting legislative
standing such that “legislators whose votes would have been sufficient to defeat (or enact) a specific
legislative Act have standing to sue if that legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely nullified”). However, non-legislative
plaintiffs might have standing to challenge treaty terminations in particular instances, provided that
they could satisfy the constitutional requirements for standing. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992); cf. Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1199 n.13 (D.
Mass. 1986) (declining, in light of political question holding, to reach standing of private business
owner plaintiffs who alleged harm to their business interests from presidential termination of treaty,
though expressing “some doubt as to whether the injuries allegedly stemming from the treaty
termination are sufficiently distinct and palpable to confer standing” (internal quotation marks
omitted)).
39. 272 U.S. 52 (1926).
40. Goldwater, 617 F.2d at 703.
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The court then rejected the district court’s alternative holding that
termination authority could be granted by a majority vote of both houses
of Congress — an argument the court identified as stemming from the
Supremacy Clause’s listing of treaties as the supreme law of the land along
with federal statutes. The court explained that the “common characteristic
[of treaties and statutes] of supremacy over state law does not provide any
basis for concluding that a treaty must be unmade either by (1) the same
process by which it was made, or (2) the alternative means by which a
statute is made or terminated.”41
The court then provided eight reasons that together supported the
President’s unilateral termination.
 First, the advice and consent requirement “is not lightly to be
extended in instances not set forth in the Constitution.”42
 Second, Congress’s powers are limited and enumerated, while
the President’s are broad, particularly in foreign affairs.43 In
addition, the Treaty Clause is located in Article II, which
governs presidential power.44
 Third, the President has primary responsibility for foreign
affairs on the international level, while Congress’s power to
implement a treaty is fundamentally legislative, and treaty
termination occurs at the international level, not the domestic
legislative level.45
 Fourth, requiring Senate consent to termination would “lock[]
the United States into all of its international obligations, even if
the President and two-thirds of the Senate minus one firmly
believed that the proper course for the United States was to
terminate a treaty,” and such a restriction could have
potentially dangerous consequences.46
 Fifth, historical practice shows that Congress has been
involved in treaty termination in diverse ways, which suggests
that it would be unwarranted to require a particular method of
involvement in all instances.47
 Sixth, “no judicially ascertainable and manageable method”
exists to distinguish “among treaties on the basis of their
41.
42.
43.
44.
45.
46.
47.
Id. at 704.
Id.
Id.
Id. at 705.
Id.
Id.
Id. at 706.
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substance, the magnitude of the risk involved, the degree of
controversy which their termination would engender, or by any
other standards.”48
 Seventh, the termination of the Taiwan treaty is peculiarly
within the President’s unilateral powers because it is incident to
the recognition and derecognition of states, over which the
President has “full constitutional authority,”49 pursuant to his
constitutional power to “receive Ambassadors and other public
Ministers.”50
 Finally, “the President’s authority as Chief Executive is at its
zenith when the Senate has consented to a treaty that expressly
provides for termination on one year’s notice, and the
President’s action is the giving of notice of termination.”51
The D.C. Circuit majority explicitly avoided the question of “whether
the Senate may be able to reserve to itself in particular treaties, at the time
of their original submission, a specific role in their termination.”52 The
court noted that, “[t]he Senate, in the course of giving its consent,
exhibited no purpose and took no action to reserve a role for itself by
amendment, reservation, or condition in the effectuation of this
provision,”53 and that “[n]o specific restriction or condition on the
President’s action is found within the Constitution or this treaty itself.”54 In
an opinion concurring in the judgment, Judge Wright, joined by Judge
Tamm, also “offered no opinion whether two-thirds of the Senate could
accomplish the same goal [of preventing the President from terminating
the treaty] by expressly conditioning its original approval of the
formulation of a treaty on its power to veto any attempt by the President
to terminate the treaty by a similar two-thirds vote.”55 In other words, the
court expressed no opinion on the constitutionality of an ex ante procedural
limitation on termination.
The majority opinion sparked a vigorous dissent by Judge MacKinnon,
who argued that Congress must consent to a treaty termination.56 Judge
MacKinnon rested his opinion on the Supremacy Clause. He explained,
48. Id. at 707.
49. Id. at 707–08 (citing U.S. CONST. art. II, § 3; United States v. Pink, 315 U.S. 203, 229, 230
(1942); and United States v. Belmont, 301 U.S. 324, 330 (1937)).
50. U.S. CONST. art. II, § 3.
51. Goldwater, 617 F.2d at 708.
52. Id. at 709.
53. Id. at 698.
54. Id. at 708 (emphasis added).
55. Id. at 714 n.18 (Wright, J., concurring).
56. Id. at 738 (MacKinnon, J., concurring in part, dissenting in part). The opinion is concurring in
part and dissenting in part because Judge MacKinnon concurred in the majority’s holding that the
plaintiffs had standing. He dissented in all other respects.
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“[U]nder Article VI of the Constitution, treaties, together with the
Constitution and United States statutes, are made the ‘supreme Law of the
Land.’ Subsequent legislative power over such laws is in Congress as the
legislative body, hence, as ‘laws’, legislation is necessary to repeal or
terminate them.”57 Judge MacKinnon also challenged the majority’s
characterization of the historical record, arguing that all but two of the
alleged instances of unilateral presidential termination involved the
approval or direction of Congress.58
In an extremely fractured decision, the Supreme Court granted
certiorari, vacated the judgment, and remanded with directions to dismiss
the complaint. Six justices voted for the grant-vacate-remand outcome.
Then-Justice Rehnquist wrote the four-Justice plurality statement, joined
by Chief Justice Burger, Justice Stewart, and Justice Stevens. The plurality
held, in agreement with the United States,59 that the case presented a
political question.60
Justice Powell concurred in the result, but justified his vote to dismiss
on the ground that the case was not ripe because the President and
Congress had not yet “reach[ed] a constitutional impasse.”61 Justice Powell
argued strenuously, contra Justice Rehnquist’s statement, that the case did
not present a political question.62 Justice Marshall simply concurred in the
57. Id.
58. Id. at 733.
59. See Brief for the United States in Opposition to Certiorari at *26–*27, Goldwater v. Carter,
444 U.S. 996 (1979) (No. 79–856), 1979 U.S. Briefs 856 (arguing that the case posed a political
question because “[t]he Constitution provides no judicially manageable standards by which a court
could grant petitioners’ requested relief,” and “petitioner’s complaint with respect to this Treaty
presents questions that ‘uniquely demand single-voiced statement of the Government’s views’”
(quoting Baker v. Carr, 369 U.S. 186, 211 (1962))). The government appears to continue to view any
treaty termination as a political question. In its brief supporting the petitioner in Bond v. United States,
the government, after confessing error in its argument to the court below, contested the argument of
an appointed amicus defending the judgment below that the treaty implementation question posed by
Bond was a political question. Reply Brief of United States Supporting Petitioner, Bond v. United
States, 131 S. Ct. 2355 (2011) (No. 09–1227). The government explained that Bond’s “type of
claim” — a claim that an individual has standing to challenge a criminal statute enacted to implement
a treaty — “does not require the courts to review the conduct of the political Branches in entering
into or terminating treaties,” suggesting that, in the government’s view, cases involving “entering into
or terminating treaties” pose a political question. Id. at 19.
60. Goldwater v. Carter, 444 U.S. 996, 1002–05 (1979) (Rehnquist, J., concurring in the
judgment).
61. Id. at 997 (Powell, J., concurring in the judgment).
62. See id. at 998–1002 (Powell, J., concurring in the judgment); id. at 1001–02 (Powell, J.,
concurring in the judgment) (“Under the criteria enunciated in Baker v. Carr, we have the
responsibility to decide whether both the Executive and Legislative Branches have constitutional
roles to play in termination of a treaty. If the Congress, by appropriate formal action, had challenged
the President’s authority to terminate the treaty with Taiwan, the resulting uncertainty could have
serious consequences for our country. In that situation, it would be the duty of this Court to resolve
the issue.”).
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result without filing a statement explaining his reasoning.63 Justice
Blackmun and Justice White joined in the grant of certiorari, but dissented
in part because they would have set the case for oral argument to “give it
the plenary consideration it so obviously deserves.”64
Only Justice Brennan, who dissented from the order directing dismissal
of the case, reached the merits of the dispute. He explained that he would
have held that the case did not present a political question and affirmed
the D.C. Circuit’s decision on the ground that termination of the Taiwan
treaty was a “necessary incident” to the President’s recognition of the
People’s Republic of China, which is “commit[ted] to the President
alone.”65
After Goldwater, the issue of treaty termination next reached the federal
courts in 1986 when the Massachusetts district court decided Beacon
Products Corp. v. Reagan.66 Business owners who sought to do business in
Nicaragua had sued President Reagan to bar his unilateral termination of
the Treaty of Friendship, Commerce, and Navigation between the United
States and Nicaragua.67 The plaintiffs argued that since they were private
citizens, not congressmen, the case did not present a political question.
The district court rejected that argument, explaining, “the plurality opinion
in Goldwater was not premised upon the status of the litigants.”68 Following
the Goldwater plurality, the district court held that the case presented a
political question.69 The court made a plea for some other constitutional
actor — either the Supreme Court or the political branches — to provide
an authoritative answer to the treaty termination question.70
The treaty termination issue arose again when thirty-two congressmen
filed suit in June 2002 to challenge President George W. Bush’s
termination of the Anti-Ballistic Missile (ABM) treaty with Russia,
pursuant to the treaty’s termination clause.71 In Kucinich v. Bush,72 the U.S.
District Court for the District of Columbia held both that the plaintiff
63. See id. at 996.
64. Id. at 1007 (Blackmun, J., dissenting in part).
65. Id. at 1007 (Brennan, J., dissenting).
66. 633 F. Supp. 1191 (D. Mass. 1986), aff’d on other grounds 814 F.2d 1 (1st Cir. 1987).
67. Id. at 1192–93; see also Treaty of Friendship, Commerce and Navigation, U.S.-Nicaragua, Jan.
21, 1956, 9 U.S.T. 449, T.I.A.S. No. 4024.
68. Beacon Products, 633 F. Supp. at 1199.
69. Id.
70. Id. at 1199 n.12 (“The fact that plaintiffs are private parties without the resources to redress
their alleged injuries outside a judicial forum . . . does highlight the extent to which the adjudication
of this issue is necessary to provide a definitive answer regarding the treaty termination power . . . .
Although the Constitution’s silence in this area may presently subject the exercise of the treaty
termination power to control by political standards, addressing the issues raised here would serve to
‘eliminate rather than create, multiple constitutional interpretations.’” (quoting Goldwater v. Carter,
444 U.S. 996, 1001 (1979) (Powell, J., concurring in the judgment)).
71. Kucinich v. Bush, 236 F. Supp. 2d 1, 2–3 (D.D.C. 2002).
72. 236 F. Supp. 2d 1.
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congressmen lacked standing and that the case presented a nonjusticiable
political question.73 The court explained that Goldwater produced “no
obviously binding holding,”74 but nonetheless found the plurality opinion
“instructive and compelling.”75 The court thus held that President Bush’s
termination of the ABM treaty was a nonjusticiable political question.76
More recently,77 the United States withdrew from the Optional Protocol
of the Vienna Convention on Consular Relations concerning the
Compulsory Settlement of Disputes (Optional Protocol) in 2005.78 The
Optional Protocol provided that disputes concerning the Vienna
Convention on Consular Relations (VCCR)79 would fall within the
compulsory jurisdiction of the International Court of Justice (ICJ).80 The
United States withdrew from the Optional Protocol because the Protocol
had given the ICJ jurisdiction over the United States in three cases
challenging the death sentences of foreign nationals who asserted
violations of the VCCR’s consular notification provisions.81 The United
States lost all of those cases in the ICJ. Efforts to demand compliance with
73. Id. at 7–12.
74. Id. at 13.
75. Id. at 14.
76. Id. at 18. The plaintiffs did not appeal the district court’s judgment to the D.C. Circuit.
77. A similar, but distinguishable, circumstance was the U.S. action to “unsign” the Rome Statute
of the International Criminal Court in 2002. The United States signed the Rome Statute on
December 31, 2000, but did not ratify the treaty. Signing the treaty obligated the United State not to
act in a manner contrary to the treaty’s object and purpose. On May 6, 2002, Under Secretary of State
for Arms Control and International Security John R. Bolton sent a letter to U.N. Secretary-General
Kofi Annan stating, “[T]he United States does not intend to become a party to the [Rome Statute].
Accordingly, the United States has no legal obligations arising from its signature on December 31,
2000.” Press Release, U.S. Dep’t of State, International Criminal Court: Letter to U.N. Secretary
General Kofi Annan (May 6, 2002), http://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm
(quoting the text of the Bolton letter). The Bolton letter thus evidenced an intent to terminate the
U.S. obligation not to defeat the object and purpose of the Rome Statute. This is distinguishable
from the instances of treaty termination and withdrawal discussed in the text because the United
States had not ratified the Rome Statute at the time of the Bolton letter and indeed still has not done
so.
78. Optional Protocol to the Vienna Convention on Consular Relations concerning the
Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 [hereinafter
Optional Protocol]. The withdrawal was effected by a March 2005 letter from Secretary of State
Condoleezza Rice to U.N. Secretary-General Kofi Annan. Letter from Condoleezza Rice, Sec’y of
State,
to
Kofi
Annan,
U.N.
Sec’y-Gen.
(Mar.
7,
2005)
available
at
http://www.state.gov/documents/organization/87288.pdf; see also U.N. Treaty Collection, Optional
Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of
Disputes,
http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III8&chapter=3&lang=en#1 (acknowledging, in end note 1, the Secretary-General’s receipt of the U.S.
withdrawal letter).
79. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
80. Optional Protocol, supra note 78, art. 1. Withdrawal from a multilateral treaty has the same
effect of ending U.S. obligations under the treaty that terminating a bilateral treaty does.
81. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31); LaGrand Case
(Ger. v. U.S.), 2001 I.C.J. 466 (June 27); Vienna Convention on Consular Relations (Para. v. U.S.),
Provisional Measures, 1998 I.C.J. 248 (Apr. 9).
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the ICJ decisions sparked litigation up to and including the Supreme
Court, but no one directly challenged U.S. withdrawal from the Optional
Protocol.82 While noting the U.S. withdrawal from the Optional
Protocol,83 the Supreme Court did not decide any constitutional question
about the executive’s authority to withdraw.84
The Supreme Court in Goldwater did little to illuminate the underlying
constitutional dispute, leaving the D.C. Circuit’s opinions in Goldwater,
though vacated, as the most in-depth analysis by any U.S. court of the
constitutional questions surrounding the treaty termination power. Absent
a change of heart by the Supreme Court, the judiciary will not resolve the
constitutional question of which branch or branches have the power to
terminate treaties — at least when no arrangement for termination has
been enshrined ex ante into the treaty itself. The absence of guidance from
the courts, however, does not absolve the political branches from their
responsibility to interpret and abide by constitutional requirements.
B.
Theories of Treaty Termination
Goldwater sparked an academic debate over treaty termination. Several
opposing theories continue in the literature today.85
The main rationale offered in support of unilateral presidential
termination power is the President’s plenary power over foreign affairs.
With regard to situations of ex ante Senate silence, the Restatement (Third) of
the Foreign Relations Law of the United States explains,
Under the law of the United States, the President has the power
(a) to suspend or terminate an agreement in accordance with its
terms;
(b) to make the determination that would justify the United States
in terminating or suspending an agreement because of its violation
by another party or because of supervening events, and to proceed
to terminate or suspend the agreement on behalf of the United
States; or
(c) to elect in a particular case not to suspend or terminate an
agreement.86
A Reporters’ Note explains, “The President’s authority to terminate or
suspend international agreements is implied in his office as it has
82. E.g., Medellin v. Texas, 552 U.S. 491 (2008).
83. Id. at 500.
84. Id. at 498.
85. See generally Randall, supra note 32, at 1108–11 (providing an overview of the “sole organ,”
Supremacy Clause, and Appointments Clause arguments about treaty termination).
86. RESTATEMENT, supra note 31, § 339.
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developed over almost two centuries.”87 The Reporters’ Note relies on the
Supreme Court’s pronouncement in United States v. Curtiss-Wright Export
Corp.88 that the President is the “sole organ of the Federal government in
the field of international relations” and exercises “very delicate, plenary
and exclusive power” in that realm.89 Based on this “plenary” presidential
power, the Restatement reporters concluded that there “would seem to be
no constitutional basis for requiring Senate consent to the termination of a
treaty, even if it is a mutual defense treaty.”90 The Restatement does
highlight that “Congress, as distinct from the Senate alone, might perhaps
claim a voice in the termination of a treaty where termination might create
serious danger of war, in view of the authority of Congress to decide for
war or peace under Article I, Section 8, of the Constitution.”91
Also emphasizing the President’s plenary foreign affairs power, Louis
Henkin endorsed unilateral presidential termination contemporaneously
with Goldwater.92 In 1979, Henkin argued, “The constitutional basis of [the
President’s unilateral termination] authority may be the ‘Executive Power’
clause of Article II . . . or the President’s role as ‘sole organ,’ . . . or his
authority may result from the sum of other powers.”93 Henkin regarded
the case for congressional participation as “harder to make” because
“[a]uthority to terminate a treaty does not seem to be within any power
87. Id. § 339, Reporters’ Note 1.
88. 299 U.S. 304 (1936).
89. RESTATEMENT, supra note 31, § 339 Reporters’ Note 1 (quoting Curtiss-Wright, 299 U.S. at
320). Despite the apparent breadth of these statements, it is interesting to note that Curtiss-Wright
involved a non-delegation challenge to a congressional Joint Resolution and executive proclamation
issued pursuant to the Resolution. Curtiss-Wright, 299 U.S. at 311, 314. Thus, the President’s
proclamation prohibiting the shipment of arms to Bolivia, violation of which was the basis for the
defendants’ indictment, was issued pursuant to congressional authorization. In the parlance of Justice
Jackson’s later concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring), this was a Category 1 case: the President acted with the express
authorization of Congress. The case therefore sheds little light on the President’s power in a Category
3 case — where the President acts contrary to the expressed will of Congress — as arguably would
be the case if a President disregarded a “for-cause” treaty termination RUD. See id. at 637–38
(defining Category 3 to include instances in which “the President takes measures incompatible with
the expressed or implied will of Congress,” and where the President’s power is therefore “at its
lowest ebb”).
90. RESTATEMENT, supra note 31, § 339 Reporters’ Note 1.
91. Id. § 339 cmt. a.
92. Henkin, supra note 3, at 651 (“Most scholars who have addressed the question have
concluded that the President has authority to terminate a treaty on behalf of the United States,
whether in accordance with its terms or when the United States is entitled to do so for one of a
variety of reasons, say, breach by the other side or ‘change of circumstances.’ I share that view.”
(citations omitted)); see also HENKIN, supra note 6, at 214 (“At the end of the twentieth century, it is
apparently accepted that the President has authority under the Constitution to denounce or otherwise
terminate a treaty, whether such action on behalf of the United States is permissible under
international law or would put the United States in violation.”).
93. Henkin, supra note 3, at 652.
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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‘herein granted’ to Congress by the Constitution (Article 1, section 1).”94
But like the Restatement, for which he served as chief reporter, Henkin did
see a constitutional basis for requiring congressional consent for the
termination of a treaty that would result in the United States going to
war.95
The presidential power model, employed by the government in litigating
Goldwater, re-emerged in a 2001 Office of Legal Counsel (OLC)
memorandum on the “Authority of the President To Suspend Certain
Provisions of the ABM Treaty.”96 The most extreme portions of the
memo, authored by John Yoo and Robert Delahunty, were repudiated by
OLC in the waning days of the Bush Administration,97 but the memo’s
rationale is nonetheless an instructive example of presidential power
94. Id.
95. Id. at 654 (“[T]here may be serious, if hypothetical, reason for concern that a President might
unilaterally pull us out of, say, NATO or SALT. Congress might well resist that, arguing that the
President should not be able to exercise any of his power, in any way, so as seriously to implicate our
defense posture or otherwise bring us close to war, since that would undercut the constitutional
power of Congress to decide for war or peace. (That, I note, is an argument for Congress, not for the
Senate acting alone.)” (citations omitted)); see also Pappas, supra note 32, at 521 (arguing that the
President may not be able unilaterally to terminate NATO and other defense treaties, though he can
unilaterally terminate other treaties); cf. Brief for Myres S. McDougal and W. Michael Reisman in
Support of Petition for Certiorari at 5, Goldwater v. Carter, 444 U.S. 996 (1979) (No. 79-856)
(“Where we deal, as in defense treaties, with matters involving the preparation for and contingent
declarations of war — a manifestly congressional competence under the Constitution — the
assumption of a shared competence is even stronger.”); id. at 6 (“Where the agreement falls squarely
in an area of competence which the Constitution gives to Congress, such as war and defense, and
where the modality of agreement chosen is a treaty or congressional-executive agreement, the
presumption requiring congressional authorization for termination becomes virtually absolute.”);
Resolving Treaty Termination Disputes, supra note 3, at 1220 (arguing that different treaties may require
different levels of participation by Congress but that unilateral presidential termination of the Taiwan
treaty was constitutionally permissible).
96. OLC Treaty Termination Memo, supra note 3.
97. See Office of Legal Counsel, Memorandum for the Files Re: Status of Certain OLC Opinions
Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (Jan. 15, 2009), available at
http://www.justice.gov/olc/docs/memostatusolcopinions01152009.pdf
(hereinafter
OLC
Memorandum for the Files). The memo quotes several specific portions of the Treaty Termination
Opinion and a similar opinion asserting that the President has complete discretion to suspend
treaties. Id. at 8. The Memo for the Files criticizes this assertion as “based on generalizations from
historical examples in which Presidents have acted in certain limited circumstances to terminate or
suspend treaties.” Id. The memo notes that OLC has since advised the White House not to rely on
the prior treaty opinions “to the extent they suggested that the President has unlimited authority to
suspend a treaty beyond the circumstances traditionally recognized.” Id. at 9. The memo notes that
“Presidents have traditionally suspended treaties where authorized by Congress or where suspension
was authorized by the terms of the treaty or under recognized principles of international law, such as
where another party has materially breached the treaty or where there has been a fundamental change
in circumstances.” Id. The memo, therefore, appears to repudiate the 2001 treaty termination memo
to the extent that it suggests that the President may terminate a treaty in violation of the terms of the
treaty itself or for reasons not recognized under principles of international law. The OLC Memo for
the Files further states that “appropriate caution should be exercised before relying upon these
opinions in other respects.” Id.
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arguments. In a portion of the memo that was not specifically disavowed,
the memo argued in favor of a unilateral presidential termination power
“stem[ming] from the President’s leading textual and structural position in
foreign affairs generally, from the text and structure of Article II’s vesting
of all of the federal executive power in the President, and from the specific
manner in which the Constitution allocates the treaty power.”98 Drawing
on the text and structure of Article II, the memo argued:
First, the Treaty Clause’s location in Article II makes clear that the
treaty power remains an executive one. The Senate’s advice and
consent role merely acts as a check on the President’s otherwise
plenary power. It is the President who makes treaties, not the Senate
and not the Senate and President. Second, Article II’s structure
confirms that executive power in this area is broader than the
authorities listed in Article II, § 2. Simply because Article II, § 2’s
Treaty Clause does not specifically detail the location of relevant
corollary powers does not mean that such powers lie in the hands
of the Senate. Rather, these powers must remain within the
President’s general executive power. Third, Article II, § l’s Vesting
Clause requires that we construe any ambiguities in the allocation of
executive power in favor of the President. If Article II, § 2 fails to
allocate a specific power, then Article II, § l’s general grant of the
executive power serves as a catch-all provision that reserves to the
President any remaining federal foreign affairs powers.99
The memo also draws on historical practice and argues that the executive
branch has a long-standing and persistent view that the President may
terminate treaties unilaterally — a position in which, the memo argues,
Congress has acquiesced.100 The memo concludes that “[t]he President’s
broad power to make treaties, qualified only by the Senate’s carefully
restricted power to grant or withhold its advice and consent, thus confers
on him the authority to unmake treaties without Senate or congressional
authorization.”101
Opponents of unilateral presidential termination include (predictably)
the Senate. A 2001 Senate Foreign Relations Committee report noted,
“The constitutional requirements that attend the termination of treaties
remain a matter of some controversy.”102 The Report directly challenges
98. OLC Treaty Termination Memo, supra note 3, at 3.
99. Id. at 6.
100. Id. at 9 (quoting THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 201, for the
proposition that the President “as a practical matter” may terminate treaties since the courts have
held terminations to be a political question); see also id. at 13–14 (arguing that historical practice is
particularly important in the separation of powers context).
101. Id. at 11 (citation omitted).
102. THE ROLE OF THE UNITED STATES SENATE, supra note 7, at 198.
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the Restatement’s blanket assertion that the President may terminate treaties
unilaterally:
The Restatement (Third) subscribes to the view that the power to
terminate treaties is lodged in the President. With regard to
international agreements that do not take the form of treaties, the
conclusion is generally true or, at least, has not been seriously
challenged in the past. However, . . . the assertion of an exclusive
Presidential power in the context of a treaty is controversial and
flies in the face of a substantial number of precedents in which the
Senate or Congress have been participants.103
The report recognizes that the President, “as the official spokesperson
with other governments[,] . . . communicates the notice of impending
termination,” and that such termination is a political act.104 But it
concludes that whether legal termination, as opposed to effective termination,
“requires conjoint action of the political branches remains . . . a live issue
which the Supreme Court has sidestepped in the past,” referencing
Goldwater.105
The primary arguments in favor of Senate participation in treaty
termination were raised in Goldwater and rest on the Supremacy Clause and
Article II, § 2. Congressional power proponents argue that because the
Supremacy Clause establishes the equivalence of treaties and federal
statutes, treaties may only be altered by a method equivalent to that
required to alter a statute, namely consent of two-thirds of the Senate, as
required for treaty ratification, or consent of a majority of both houses of
Congress, as required to pass a statute.106 The Goldwater plaintiffs relied
heavily on this argument.107 Presidential power proponents, including
Louis Henkin, rightly rebut this claim by arguing that the Supremacy
Clause’s purpose is to establish the primacy of treaties and federal statutes
over state law and that their equivalence vis-à-vis state law does not
indicate that their method of termination is or should be identical.108
103. Id. at 199.
104. Id.
105. Id.
106. Petition for Writ of Certiorari to the U.S. Court of Appeals for the D.C. Circuit at 15,
Goldwater v. Carter, 444 U.S. 996 (1979) (No. 79-856); see Randall, supra note 32, at 1110–11.
107. Petition for Writ of Certiorari to the U.S. Court of Appeals for the D.C. Circuit at 15,
Goldwater v. Carter, 444 U.S. 996 (1979) (No. 79-856) (arguing that since statutes can only be
repealed by the same process by which they are made, the same should be true for treaties,
specifically “[f]ederal statutes are part of the Supreme Law of the Land, yet they are repealed by the
same process by which they are made (although the Constitution does not expressly say so). Why
should treaties, which are on an equal footing with statutes, be any different?”).
108. See Goldwater v. Carter, 617 F.2d 697, 705 (D.C. Cir. 1979) (“The fact that the Constitution,
statutes, and treaties are all listed in the Supremacy Clause as being superior to any form of state law
does not mean that the making and unmaking of treaties can be analogized to the making and
unmaking of domestic statutes any more than it can be analogized to the making or unmaking of a
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As to Article II, § 2, proponents of Senate involvement argue that the
Senate’s role in consenting to treaties means that the best interpretation of
constitutional silence on treaty termination is complete parallelism — that
is, because two-thirds of the Senate is required to commit the United
States to a treaty, two-thirds of the Senate is also required to undo a U.S.
treaty commitment.109
Proponents of unilateral presidential termination counter this argument
by reference to the Appointments Clause, also found in Article II, § 2.
Presidential proponents argue that the entry-exit parallelism advocated by
congressional proponents in the treaty context has been rejected by the
Supreme Court for the textually proximate Appointments Clause110: the
Court held in Myers v. United States that congressional consent is not
required before the President may remove an executive official who was
previously confirmed by the Senate.111 This rejoinder is persuasive. In
response, the most that congressional proponents can say is that the treaty
context is very different from presidential control over the President’s
constitutional amendment.”); Henkin, supra note 3, at 653 (“One of the arguments made against
presidential power [to terminate treaties unilaterally] is that treaties are the supreme law of the land
and it takes a legislative act to repeal a law. This argument, I submit, plays with words. The provision
in Article VI that treaties are ‘the supreme law of the land’ is addressed to the courts, and principally
for the purpose of declaring treaties supreme in relation to state law and policy.”).
109. See, e.g., ADLER, supra note 3, 106–10 (arguing that the Framers would have understood
treaties to be terminable pursuant to a “symmetrical rule of construction” whereby they could be
unmade only in the same way that they were made); id. at 342–43; Moriarty, supra note 3, at 131; Sean
D. Murphy, Contemporary Practice of the United States Relating to International Law: Suit by Congressmen
Regarding Withdrawal from ABM Treaty, 97 AM. J. INT’L L. 205, 207 (2003); Riesenfeld, supra note 33, at
660 (“The most logical view is that the power to denounce a treaty is vested in the President by and
with the advice and consent of the Senate, so that the department of the government which makes
the treaty can terminate it, regardless of whether the termination is by unilateral, but lawful,
denunciation or by a new treaty.”); cf. HENKIN, supra note 6, at 212 (“In principle, one might argue, if
the Framers required the President to obtain the Senate’s consent for making a treaty, its consent
ought to be required also for terminating it . . . . But perhaps the Framers were concerned only to
check the President in ‘entangling’ the United States; ‘disentangling’ is less risky and may have to be
done quickly, and is often done piecemeal, or ad hoc, by various means and acts.”); id. at 212 & n.139
(citing “eminent (if aging) dictum to support” the view that congressional consent is required for
termination (citing, inter alia, THE FEDERALIST NO. 64 at 624, and The Amiable Isabella, 19 U.S. (6
Wheat.) 1, 75 (1821) (Story, J.)).
110. See, e.g., Murphy, supra note 109, at 207 (“[T]he Supreme Court has recognized that the grant
to the Senate of an ‘advice and consent’ role with regard to approval of a course of action does not
entail the same grant with regard to terminating the course of action. Specifically, the Supreme Court
has held that the Senate does not retain any authority to terminate ‘Officers of the United States’
even though these officers are appointed with the ‘Advice and Consent of the Senate’ pursuant to
Article II, Section 2.” (quoting U.S. motions to dismiss or for summary judgment)).
111. Myers v. United States, 272 U.S. 52 (1926); see also Free Enter. Fund v. Pub. Co. Acctg.
Oversight Bd. (PCAOB), 130 S. Ct. 3138, 3153 n.3 (2010) (discussing the Tenure of Office Act,
which “purported to require Senate consent” for removal of the Secretary of the Navy, and noting
that “[t]his requirement was widely regarded as unconstitutional and void (as it is universally regarded
today), and it was repealed the next year”).
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subordinates and thus that unilateral removal authority does not mandate
unilateral treaty termination authority.112
C.
Analogizing to the Appointments Clause
Presidential power proponents have the better of the constitutional
argument about treaty termination, but they fail to take the Appointments
Clause analogy to its logical conclusion: analogizing to the full range of
Supreme Court Appointments Clause and removal cases, not just to Myers.
This error causes them to claim too much power for the President.
1.
Justifying the Analogy
Analogies between the Appointments Clause and the Treaty Clause are
well taken, but have not been sufficiently justified or explained. This
Article fills that void. Although the Appointments Clause and judicial
precedents interpreting it obviously do not directly apply to the Treaty
Clause, they are instructive in the treaty context for four reasons.
First, the text of the Clauses is similar in both location and content. The
Clauses are part of the same sentence in Article II, § 2, which addresses
presidential powers. Both also begin with a grant of power to the President
that is then limited with the phrase “by and with the advice and consent of
the Senate.”113 Treaties require a two-thirds vote of the Senate, while
appointments require only a majority vote, but the mechanism of advice
and consent by the Senate is otherwise identical. The inclusion of both
powers in the same sentence and creation of the same power of the Senate
in both clauses suggests that the Framers envisioned the same role for the
Senate in both contexts.114
Second, the Clauses share a structural similarity. In both contexts, the
President has the initiative: he or she proposes something for the Senate’s
approval or rejection. Resting the initiative with the President makes sense
of the Clauses’ location in Article II. However, the Framers chose to
enshrine a Senate check on what would otherwise be a purely presidential
power. Although both foreign relations and appointments are described as
raising “separation” of powers questions, the real questions both pose
relate to the allocation of powers that are overlapping, not separate. Justice
112. See Berger, supra note 33, at 595–96 (“[T]reaty terminations go beyond his relations to his
subordinates; they affect our relations to other nations and are of immediate concern to the people
and to Congress. Who would assimilate termination of the North Atlantic Alliance to firing a
member of the Cabinet?”); Scheffer, supra note 3, at 990.
113. U.S. CONST. art. II, § 2.
114. Cf. Erlenbaugh v. United States, 409 U.S. 239, 243–44 (1972) (describing in pari materia
canon of statutory construction); Jean Galbraith, Prospective Advice and Consent, 37 YALE J. INT’L L.
247, 249 (2012) (arguing in a different context that “advice and consent” in the Appointments Clause
and the Treaty Clause should be read in a consistent manner).
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Jackson’s framework in Youngstown Sheet and Tube Co. v. Sawyer presents a
pragmatic means of approaching issues of this type — of assessing the
President’s power relative to the Senate when both share some power to
act.115 Justice Jackson himself cited Appointments Clause precedents in his
Youngstown concurrence.116 The Senate Foreign Relations Committee also
employed Youngstown in its report on President Carter’s unilateral treaty
termination.117 And in Morrison v. Olson, the Supreme Court quoted
Jackson’s Youngstown concurrence to explain that “‘[w]hile the Constitution
diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government. It
enjoins upon its branches separateness but interdependence, autonomy but
reciprocity.’”118 The Appointments Clause and the Treaty Clause present
the same sort of practical challenge and raise analogous theoretical
questions. It is therefore reasonable to examine whether a similar answer
can apply in both contexts.
Third, the Clauses share a functional similarity stemming from the fact
that they both govern instrumentalities by which the President carries out
other presidential powers. That is, the Appointments Clause governs the
means by which the President installs subordinates to effectuate his
115. 343 U.S. 579 (1952) (Jackson, J., concurring).
116. Justice Jackson cites Humphrey’s Executor and Myers in describing the evolving nature of the
removal power as an example of the separation of powers balance that his concurrence addresses.
Youngstown, 343 U.S. at 638 n.4 (Jackson, J., concurring); see also Zivotofsky v. Clinton, 132 S. Ct.
1421, 1428 (2012) (casting a case about whether a statute infringes the President’s power to recognize
foreign sovereigns as one “where the question is whether Congress or the Executive is aggrandizing
its power at the expense of another branch” and citing Appointments Clause cases, including Myers v.
United States, Bowsher v. Synar, and Morrison v. Olson (quotation marks omitted)).
117. In reporting on the Taiwan Enabling Act at the time of President Carter’s unilateral
termination of the Taiwan Treaty, the Senate Foreign Relations Committee recognized that
Youngstown suggested that the unilateral termination “may” have been within the President’s
constitutional power. S. COMM. ON FOREIGN RELATIONS, TAIWAN ENABLING ACT: REPORT OF
THE COMM. ON FOREIGN RELATIONS OF THE U.S. SENATE TOGETHER WITH ADDITIONAL VIEWS
ON S. 245, S. REP. NO. 96–7, at 18 (1979). The Committee noted that:
[T]he scope of the President’s authority would appear to be a function of action taken — or
not taken — by the legislative branch. An incompatible expression of the will of the
Congress — or of two-thirds-of the Senate — would . . . have placed the President’s authority
on far shakier legal ground.
Id. Citing Justice Jackson’s Youngstown concurrence, the Committee explained that President Carter’s
termination of the treaty
would fall within the “zone of twilight” of category (2) and the President would, accordingly,
appear to possess the constitutional authority to [terminate] absent any statute enacted by the
Congress or resolution adopted by two-thirds of the Senate directing contrary action; such
measures would place the President’s action in category (3).
Id. at 19.
118. Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Youngstown, 343 U.S. at 635 (Jackson,
J., concurring)).
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responsibility to “take care that the laws be faithfully executed,”119 and the
Treaty Clause governs one mechanism by which the President carries out
his foreign affairs power. Thus, while the ability to terminate treaties
unilaterally is not necessary to enable the President to “take care that the
laws be faithfully executed,” it arguably is necessary to allow the President
to conduct foreign affairs pursuant to his constitutional obligations.
Finally, the executive branch itself has long relied on the analogy
between the Appointments and Treaty Clauses. In its brief in opposition
to certiorari in Goldwater, the United States relied on Appointments Clause
precedent to argue that the Court’s decision “interpreting the virtually
identical language of the appointments clause” supported the President’s
argument that Congress had no role in consenting to termination of the
mutual defense treaty with Taiwan.120 More recently, an OLC memo relied
on Appointments Clause precedents to argue against a congressional role
in treaty termination.121 Given that the executive branch has long looked
to the Appointments Clause to support executive power, it should also be
prepared to accept limitations on executive power stemming from the
same analogy.
In the end, the utility of the proposed “for-cause” limitation in the
treaty context must be judged on its own terms. However, as the citation
of Youngstown across a range of separation of powers issues suggests, there
is value in uniformity of approach and perhaps in uniformity of solution.
To develop this analysis, the next Section turns to the evolution of forcause restrictions on removal in the Appointments Clause context.
2.
Evolution of Appointments Clause Precedent
This Section discusses four key Appointments Clause cases on the
removal of executive officers: Myers v. United States, Humphrey’s Executor v.
United States, Morrison v. Olson, and Free Enterprise Fund v. Public Company
Accounting Oversight Board.
In a 1926 opinion by former President and Chief Justice William
Howard Taft, the Court in Myers v. United States held that Congress could
not impose a procedural limit — a requirement of Senate consent — on
removal of a Senate-confirmed officer, and invalidated a statute that
purported to do so.122 The President had removed from office, without
Senate consent, a Senate-confirmed postmaster before the expiration of
119. U.S. CONST. art. II, § 3.
120. Brief for the United States in Opposition to Certiorari at 17, Goldwater v. Carter, 444 U.S.
996 (1979) (No. 79–856), 1979 U.S. Briefs 856.
121. OLC Treaty Termination Memo, supra note 3, at 6. While OLC has specifically disavowed
particular portions of this memo, it did not mention the Appointments Clause analogy in its Memo
for the Files. See OLC Memorandum for the Files, supra note 97, at 8–9.
122. 272 U.S. 52 (1926).
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the postmaster’s four-year term.123 The postmaster’s estate sued for back
pay, attempting to enforce an 1876 statute, which stated that postmasters
“may be removed by the President by and with the advice and consent of the
Senate and shall hold their offices for four years unless sooner removed or
suspended according to law.”124 The Court concluded that the Act was
unconstitutional because:
The power of removal is incident to the power of appointment, not
to the power of advising and consenting to appointment, and when
the grant of the executive power is enforced by the express
mandate to take care that the laws be faithfully executed, it
emphasizes the necessity for including within the executive power
as conferred the exclusive power of removal.125
The Court found that the Constitution’s silence about removal inured to
the President: “The fact that the executive power is given in general terms
strengthened by specific terms where emphasis is appropriate, and limited
by direct expressions where limitation is needed and that no express limit
is placed on the power of removal by the executive, is a convincing
indication that none was intended.”126 Rejecting any implication from the
Senate’s advice and consent role, the Court focused solely on the
President’s appointment power, emphasizing that “[t]he power to
remove . . . executive officers, is an incident of the power to appoint them,
and is in its nature an executive power.”127 The Court denied “that the
excepting clause enables Congress to draw to itself, or to either branch of
it, the power to remove or the right to participate in the exercise of that
power.”128 Because most of the reasoning in Myers could be extended to
123. Id. at 106.
124. Act of July 12, 1876, ch. 179, 19 Stat. 80, 81, (emphasis added). A formulation of this statute
that applied more generally to executive officers was passed as the Tenure of Office Act of 1867. See
Myers, 272 U.S. at 167–68. As the Court explained in PCAOB, the “Tenure of Office Act purported
to require Senate consent for” removal of officers, but that “requirement was widely regarded as
unconstitutional and void (as it is universally regarded today), and it was repealed the next year.” Free
Enter. Fund v. Pub. Co. Acctg. Oversight Bd., 130 S. Ct. 3138, 3153 n.3 (2010) (citing Act of Mar. 3,
1887, ch. 353, 24 Stat. 500). However, the 1876 statute purporting to require Senate consent to the
removal of postmasters escaped the 1887 repeal of the more general Tenure of Office Act of 1867,
and was therefore still on the books for postmaster Myers to employ in 1920.
125. Myers, 272 U.S. at 122.
126. Id. at 128.
127. Id. at 161.
128. Id.; see also Bowsher v. Synar, 478 U.S. 714, 722–23 (1986) (“The Constitution does not
contemplate an active role for Congress in the supervision of officers charged with the execution of
the laws it enacts. The President appoints ‘Officers of the United States’ with the ‘Advice and
Consent of the Senate . . . .’ Art. II. § 2. Once the appointment has been made and confirmed,
however, the Constitution explicitly provides for removal of Officers of the United States by
Congress only upon impeachment by the House of Representatives and conviction by the
Senate . . . . A direct congressional role in the removal of officers charged with the execution of the laws beyond this
limited one is inconsistent with separation of powers.” (emphasis added)(internal citation omitted)); id. at 726
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the Treaty Clause, Myers suggests a serious constitutional hurdle to a
Senate-consent limitation on treaty termination.129
Later in Humphrey’s Executor v. United States,130 the Court repudiated the
presidential absolutism of Myers and upheld a substantive limit — a forcause restriction — on the President’s removal power. Another suit for
back pay, Humphrey’s Executor was filed by the estate of a Federal Trade
Commissioner who was removed from his job, allegedly unlawfully, by
President Franklin Delano Roosevelt. The estate argued that the
Commissioner’s removal was unlawful because it was not for one of the
“causes” specified in the Federal Trade Commission Act.131 In considering
the constitutionality of the for-cause removal provision, the Court
expressly distinguished Myers, noting that the office of postmaster at issue
in Myers was “restricted to the performance of executive functions,”132 in
contrast to the Federal Trade Commission, which “acts in part quasilegislatively and in part quasi-judicially.”133 The Court explained that for
officers whose functions are not purely executive, “no removal can be
made during the prescribed term for which the officer is appointed, except
for one or more of the causes named in the applicable statute.”134
In Morrison v. Olson,135 the Supreme Court clarified the character-of-theoffice test announced in Humphrey’s Executor and upheld a for-cause
limitation on removal of the independent counsel. The Ethics in
Government Act of 1978,136 which created the position of independent
counsel, provided that the Attorney General could remove the
independent counsel only for cause.137 The Court noted that unlike Myers,
“this case does not involve an attempt by Congress itself to gain a role in
the removal of executive officials other than its established powers of
impeachment and conviction. The Act instead puts the removal power
squarely in the hands of the Executive Branch,” namely the Attorney
(“Congress cannot reserve for itself the power of removal of an officer charged with the execution of
the laws except by impeachment.”).
129. See Henkin, supra note 3, at 653 & n.30 (drawing on the Appointments Clause analogy with
regard to treaty termination and noting that “Congress sometimes attempted, by legislation, to
require such Senate consent, but the Supreme Court held such legislation beyond the power of
Congress” (citing Myers, 272 U.S. at 122)).
130. 295 U.S. 602 (1935).
131. Federal Trade Commission Act, ch. 311, 38 Stat. 717, 15 U.S.C. §§ 41–42; see Humphrey’s
Ex’r, 295 U.S. at 620 (“Any commissioner may be removed by the President for inefficiency, neglect
of duty, or malfeasance in office . . . .” (quoting Federal Trade Commission Act, ch. 311, 38 Stat. 717,
15 U.S.C. §§ 41–42)).
132. Humphrey’s Ex’r, 295 U.S. at 627.
133. Id. at 628.
134. Id. at 631–32.
135. 487 U.S. 654 (1988).
136. 28 U.S.C. §§ 49, 591 et seq.
137. Morrison, 487 U.S. at 663 (quoting the Ethics in Government Act, § 596(a)(1)).
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General.138 The Court explicitly noted that “[t]here is no requirement of
congressional approval of the Attorney General’s removal decision,”139
which made the case “more analogous to Humphrey’s Executor v. United
States . . . than to Myers . . . .”140 The Court then revised its earlier holding
in Humphrey’s Executor to accord with its view “that the determination of
whether the Constitution allows Congress to impose a ‘good cause’-type
restriction on the President’s power to remove an official cannot be made
to turn on whether or not that official is classified as ‘purely executive.’”141
The Court reaffirmed Myers’s holding as “undoubtedly correct” and
continued to adhere to “its broader suggestion that there are some ‘purely
executive’ officials who must be removable by the President at will if he is
to be able to accomplish his constitutional role.”142 The Court explained
that “the real question is whether the removal restrictions are of such a
nature that they impede the President’s ability to perform his constitutional
duty.”143 The Court instructed that “the characterization of the agencies in
Humphrey’s Executor . . . as ‘quasi-legislative’ or ‘quasi-judicial’ in large part
reflected our judgment that it was not essential to the President’s proper
execution of his Article II powers that these agencies be headed up by
individuals who were removable at will.”144 With respect to the
independent counsel, the Court held that the imposition of a good-cause
restriction on removal does not “unduly trammel[] on executive
authority.”145 The Court specifically noted that “Congress retained for
itself no powers of control or supervision over an independent
counsel.”146
The Supreme Court reengaged the Appointments Clause in 2010 in Free
Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”).147 At
issue in that case was a system of double for-cause removal restrictions for
the members of the Public Company Accounting Oversight Board
(PCAOB). That is, the PCAOB members were removable for cause only
by the Securities and Exchange Commissioners, who are themselves
removable only for cause. The Court held that the double for-cause
restriction impermissibly interfered with the President’s ability to supervise
the PCAOB. Chief Justice Roberts’ majority opinion in PCAOB referred
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
Id. at 686.
Id.
Id. (internal citations omitted).
Id. at 689.
Id. at 690.
Id. at 691.
Id.
Id.
Id. at 694.
130 S. Ct. 3138 (2010).
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to Myers as a “landmark case,”148 but it also relied on Humphrey’s Executor.149
The Court was asked a narrow question — whether imposition of two
levels of for-cause protection was constitutional — and so it did not have
to engage in the more fundamental separation of powers questions at issue
in Myers, Humphrey’s Executor, and Morrison.150 However, while providing a
formalist answer to a formalist question, the Court’s reasoning displays the
functionalist pragmatism evident in the prior cases upon which it relies.151
The reasoning of the Court’s Appointments Clause jurisprudence
encapsulates a pragmatic approach to resolution of constitutional conflict
between the branches in areas of shared power, and its utility therefore
extends beyond the Appointments Clause and removal context. As
explained above, the textual and structural similarity between the
Appointments Clause and the Treaty Clause suggests that a consistent
approach is both appropriate and useful in considering how best to resolve
situations in which the President and the Senate share power to a disputed
extent. Taking the Appointments Clause analogy to its logical conclusion
shows that presidential power proponents err by relying on Myers to argue
that the Appointments Clause jurisprudence means that the President can
unilaterally terminate treaties. What the analogy to the Appointments
Clause precedents actually suggests is only that the President has the
power to terminate unilaterally when Congress has been silent ex ante.
The next Part discusses legislative means to restrict unilateral
presidential termination if Congress were to act ex ante.
III. LEGISLATIVE MEANS TO RESTRICT UNILATERAL PRESIDENTIAL
TERMINATION
If the Senate or Congress could have a say in treaty termination, their
involvement could theoretically take any of several forms. First, the type of
148. Id. at 3152.
149. Id. Judge Brett Kavanaugh has recently noted, however, that “there can be little doubt that
the Free Enterprise Court’s wording and reasoning are in tension with Humphrey’s Executor and are more
in line with Chief Justice Taft’s majority opinion in Myers,” In re: Aiken Cty., 645 F.3d 428, 446 (D.C.
Cir. 2011) (Kavanaugh, J., concurring), but he also noted that Humphrey’s Executor “is an entrenched
Supreme Court precedent, protected by stare decisis,” id.
150. PCAOB, 130 S. Ct. at 3147 (“The parties do not ask us to reexamine any of these
precedents, and we do not do so.”); id. at 3157 (“The point is not to take issue with for-cause
limitations in general; we do not do that.”).
151. Compare Morrison, 487 U.S. at 691 (“[T]he real question is whether the removal restrictions
are of such a nature that they impede the President’s ability to perform his constitutional duty, and
the functions of the officials in question must be analyzed in that light.”), with PCAOB, 130 S. Ct. at
3154 (explaining that the “double for-cause” restriction on removal “does not merely add to the
Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to
him, nor even an officer whose conduct he may review only for good cause, has full control over the
Board. The President is stripped of the power our precedents have preserved, and his ability to
execute the laws — by holding his subordinates accountable for their conduct — is impaired.”).
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termination restriction could be either procedural or substantive. Based on
the Appointments Clause analogy discussed above, Section III.A argues
that the procedural limitation advocated by commentators, senators, and
federal court plaintiffs — a requirement that Congress or the Senate
consent prior to termination — is likely unconstitutional. Section III.B
instead proposes a novel substantive limitation: a “for-cause” limitation on
treaty termination. Section III.C argues that a RUD provides a better
vehicle than legislation to effectuate a substantive limitation.
A.
Problems with a Procedural Limitation
Plaintiffs and commentators have advocated placing a procedural limit
on unilateral presidential treaty termination, that is, a limitation specifying
that the treaty cannot be terminated absent consent of the Senate or of
both houses of Congress. The Restatement specifically envisions this type of
procedural limitation via a RUD, noting “[i]f the United States Senate, in
giving consent to a treaty, declares that it does so on condition that the
President shall not terminate the treaty without the consent of Congress or
of the Senate, . . . that condition presumably would be binding on the
President if he proceeded to make the treaty.”152 The plaintiffs in
Goldwater,153 Kucinich,154 and Beacon Products,155 as well as commentators,
have sought Senate or congressional consent to treaty termination.156
Senator Javits at the time of Goldwater also contemplated a procedural
limitation.157 Despite frequent analogies to the Appointments Clause in the
treaty termination context, proponents of a procedural limitation have
152. RESTATEMENT, supra note 31, § 339, cmt. a.
153. 444 U.S. 996 (1979).
154. 236 F. Supp. 2d 1 (D.D.C. 2002).
155. See Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1198 (D. Mass. 1986) (“[P]laintiffs
argue that the Constitution does not authorize the President to terminate a treaty without some form
of congressional approval and therefore the notice of termination should not be given legal effect
unless Congress or two-thirds of the Senate ratifies the President’s action.” (citations omitted)).
156. See ADLER, supra note 3, at 353 (“The Senate is in a position to help itself. When it comes to
treaty termination, the Senate has the tools to guarantee its role in the process if only it will use them.
I would urge the Senate to attach a condition to its ratification of future treaties which would require
Senate consent to the termination of a treaty.”); Glennon, supra note 3, at 540, n.46 (arguing that a
RUD specifying that “material be transmitted with the instrument of ratification . . . would rest upon
approximately the same constitutional footing as a condition providing that the Senate or Congress
participate in the termination process. If the Senate can validly accomplish the latter by conditioning
its consent to a treaty, as the Restatement concludes it ‘presumably’ can, then presumably it can
accomplish the former as well.” (internal citations omitted)); Moriarty, supra note 3, at 138–39
(speculating that the Senate might condition its consent on the right to terminate the treaty); Randall,
supra note 32, at 1124 (“The Senate could also adopt a condition in its resolution of consent to a
particular treaty, mandating that its consent is necessary to the President’s reinterpretation and/or
termination of that treaty.”); Scheffer, supra note 3, at 1007 (proposing that the Senate attach a
reservation requiring a termination clause to be included in a treaty and that the termination clause
would require Senate consent to the termination).
157. See supra note 2.
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recognized neither the constitutionally problematic nature of a procedural
limitation, nor the practical problems it would engender.
1.
Constitutional Hurdles to a Congressional Consent Limitation
The Appointments Clause suggests a constitutional problem particular
to a congressional consent limitation. The D.C. Circuit in Goldwater drew
on the Appointments Clause precedents to reject the argument that “since
the President clearly cannot enter into a treaty without the consent of the
Senate, . . . he must in all circumstances seek the same senatorial consent
to terminate that treaty.”158 The court noted that the “same inference
would appear automatically to obtain with respect to the termination by
the President of officers appointed by him under the same clause of the
Constitution and subject to Senate confirmation.”159 Citing Myers, the
court stated, “the Supreme Court has read that clause as not having such
an inevitable effect in any and all circumstances.”160
As evidenced by the above discussion of Myers,161 the D.C. Circuit’s
gloss on the case is actually rather generous to the Goldwater plaintiffs. The
D.C. Circuit read Myers to mean simply that Senate consent could not be
implied — the question at issue in Goldwater. But Myers went further and
held that even in the face of a statute requiring Senate consent to removal, Senate
consent could not be required.162
If, as argued above, the text of Article II, § 2 creates a parallel role for
the Senate vis-à-vis the President in the Appointments Clause and Treaty
Clause, then the Supreme Court’s determination that Congress cannot
require its own consent to remove an executive official suggests that
Congress similarly could not require congressional or Senate consent for
the termination of a treaty.
In Humphrey’s Executor and Morrison, the Supreme Court somewhat
revised its view of the power of Congress to effect removals, shifting away
from sole presidential authority to permitting for-cause limitations on the
removal of even executive officers, so long as the limitation does not
“unduly trammel[]”163 the President’s ability to execute the laws. But it is
important to note that the move away from sole presidential authority has
occurred only to the extent of permitting for-cause limitations on removal.
158. Goldwater v. Carter, 617 F.2d 697, 703 (D.C. Cir. 1979).
159. Id.
160. Id.
161. See supra text accompanying notes 122–129.
162. See Myers v. United States, 272 U.S. 52, 108, 176 (1926) (quoting the statute requiring
congressional consent for removal and holding that “the provision of the law of 1876, by which the
unrestricted power of removal of first class postmasters is denied to the President, is in violation of
the Constitution, and is invalid”).
163. Morrison v. Olson, 487 U.S. 654, 691 (1988).
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Myers still controls — and prohibits — a requirement of Senate consent to
removal. Morrison emphasizes the difference between an ex ante for-cause
limitation and “an attempt by Congress itself to gain a role in the removal
of executive officials other than its established powers of impeachment
and conviction”164 — e.g., Senate consent to removal. Morrison noted that
the “essence of the decision in Myers was the judgment that the
Constitution prevents Congress from ‘draw[ing] to itself . . . the power to
remove or the right to participate in the exercise of that power.’”165
Institution of a requirement of congressional or Senate consent to treaty
termination — no less than a requirement of congressional consent to
removal — would constitute an “attempt by Congress itself to gain a role”
in termination, and to “draw[] to itself . . . the right to participate in the
exercise” of the termination power.166
In Myers, Humphrey’s Executor, and Morrison, the Supreme Court has
clearly held that requiring Senate consent to removal is impermissible,
while imposition of a for-cause limitation on removal is not. Given the
parallels between the Treaty Clause and the Appointments Clause, a
procedural limitation requiring Senate consent to treaty termination would
be a similar impermissible arrogation of power to Congress, while a forcause limitation on presidential treaty termination would not.
2.
Practical Problems with a Congressional Consent Limitation
In addition to the likely constitutional problem with a Senate or
congressional consent limitation, there is a major practical problem with
such a limitation: the potential delay involved in acquiring consent. If a
Senate consent requirement were constitutionally permissible, it is not
clear when the consent would have to occur: prior to a presidential notice
of termination or prior to the actual termination? In Goldwater and Beacon
Products, the treaties required that notice be given one year prior to
termination;167 the ABM treaty at issue in Kucinich required six-months’
notice.168 If Senate consent were only required prior to actual termination,
then the treaty termination clauses themselves might provide for sufficient
delay to allow for Senate consent. If Senate consent is required, though, it
would be extremely risky (at least politically) for the President to announce
a treaty termination without first securing the required Senate consent.
Senate consent prior to the notice of termination, therefore, might need to
164. Id. at 686.
165. Id.
166. Id.
167. Goldwater v. Carter, 617 F.2d 697, 700 (D.C. Cir. 1979); Beacon Prods. Corp. v. Reagan,
633 F. Supp. 1191, 1193 (D. Mass. 1986).
168. Kucinich v. Bush, 236 F. Supp. 2d. 1, 3 (D.D.C. 2002) (quoting ABM Treaty’s termination
clause).
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occur quickly and might not be possible either logistically or due to
political opposition in the Senate. Such delay would have a detrimental
effect on the President’s ability to use treaty termination as a foreign policy
tool in reaction to, for example, a crisis (or at least a crisis short of war,
such as hostile action against an ally).169
The likely constitutional problems with a limitation requiring Senate
consent, combined with the possibility of delay that a Senate vote would
introduce, can be avoided by a different type of restriction: a substantive
“for-cause” limitation on treaty termination, discussed in the next Section.
B.
A Substantive “For-Cause” Limitation on Termination
Though it poses a constitutional problem for a Senate-consent
requirement, Appointments Clause and removal jurisprudence suggests
that an analogous “for-cause” limitation on presidential treaty termination
would be constitutional.
1.
Constitutional Underpinnings of a “For-Cause” Restriction
Following the Supreme Court’s guidance in Morrison, the appropriate
inquiry for determining a substantive termination restriction’s
constitutionality is whether the “restriction[] [is] of such a nature that [it]
impede[s] the President’s ability to perform his constitutional duty.”170
As a preliminary matter, if the executive branch presents an
international agreement for ratification as a treaty, that act provides some
evidence that the agreement is not within the President’s sole executive
power because if it were, it would more likely be concluded as a sole
executive agreement.171 Of course, there could be instances in which a
169. In its brief to the Supreme Court opposing certiorari in Goldwater v. Carter, the United States
pointed to the need for fast action as a reason supporting the President’s unilateral termination
power. See Brief for the United States in Opposition to Certiorari at *18, Goldwater v. Carter, 444
U.S. 996 (1979) (No. 79-856), 1979 U.S. Briefs 856 (“The President may need to extricate the United
States from a treaty quickly because of breach by the other party, the outbreak of hostilities, or other
changed international circumstances; it may be necessary for the President to hold out the possibility
of treaty termination as a response to threatened action or actual conduct by a treaty partner . . . . The
power to terminate in such circumstances is a necessary concomitant of the President’s power to
exercise fully his constitutional authority to conduct the nation’s foreign affairs.” (citing United States
v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936))).
170. Morrison, 487 U.S. at 691.
171. See HENKIN, supra note 6, at 229 (“The President can also make many agreements on his
own authority, including, surely, those related to establishing and maintaining diplomatic relations,
agreements settling international claims, and military agreements within the Presidential authority as
Commander in Chief.”). For example, pursuant to the President’s power as Commander-in-Chief,
Status of Forces Agreements, which govern, among other things, jurisdiction over and taxes on
members of the armed forces stationed abroad, are concluded as executive agreements. R. CHUCK
MASON, CONG. RESEARCH SERV., RL34531, STATUS OF FORCES AGREEMENT (SOFA): WHAT IS
IT,
AND
HOW
HAS
IT
BEEN
UTILIZED?
1
(2009),
available
at
http://ftp.fas.org/sgp/crs/natsec/RL34531.pdf.
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President would choose for political reasons to present an international
agreement for ratification as a treaty, even if technically it could be
concluded as a sole executive agreement. In either instance, the President,
whether for constitutional or political reasons, signals by seeking Senate
ratification that Senate involvement is necessary, or at least desirable.
Therefore, it would be justifiable to establish a presumption that a forcause limitation on an Article II treaty does not “unduly trammel[]”172 the
President’s ability to carry out his duties since the President took the step
of invoking the treaty process, which shares power between the President
and the Senate.
Determining exactly which agreements may be concluded as sole
executive agreements and which must be concluded as treaties is beyond
the scope of this Article. It is nonetheless clear that the subjects of some
treaties are areas of shared congressional and presidential power, such that
the involvement of Congress in approving international agreements on
such subjects is likely constitutionally required. For example, Article I, § 8
of the Constitution gives Congress the power to “regulate Commerce with
foreign Nations,”173 which suggests that trade agreements must involve
Congress or at least the Senate.174 Similarly, Article I gives Congress the
power “[t]o promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to their
respective writings and discoveries.”175 This provision suggests that
congressional involvement is necessary to enter international agreements
dealing with patents, trademarks, and other intellectual property regimes.176
The Constitution also gives Congress the power “[t]o define and punish
piracies and felonies committed on the high seas, and offenses against the
172. Morrison, 487 U.S. at 691.
173. U.S. CONST. art. I, § 8.
174. Such agreements, like NAFTA, have been done as congressional-executive agreements,
which require a majority vote in both houses of Congress. NAFTA was approved by a vote of 234 to
200
in
the
House,
see
Final
Vote
Results
for
Roll
Call
575,
http://clerk.house.gov/evs/1993/roll575.xml, and by a vote of 61 to 38 in the Senate, see
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=103&sessio
n=1&vote=00395. The three free trade agreements between the United States and Columbia,
Panama, and South Korea, signed by President Obama in October 2011, were concluded as
congressional-executive agreements. See, e.g., Zachary A. Goldfarb & Lori Montgomery, Obama Gets
Win as Congress Passes Free Trade Agreements, WASH. POST, Oct. 12, 2011, available at
http://www.washingtonpost.com/business/economy/obama-gets-win-as-congress-passes-freetrade-agreements/2011/10/12/gIQAGHeFgL_story.html.
175. U.S. CONST. art. I, § 8.
176. For example, the United States ratified the following intellectual property conventions
through the Article II process: Universal Copyright Convention, Sept. 6, 1952, 6 U.S.T. 2731, 216
U.N.T.S. 132, as last revised, July 24, 1971, 25 U.S.T. 1341, 943 U.N.T.S. 178; World Intellectual
Property Organization Copyright Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105–17, 2186 U.N.T.S.
152; and International Convention for the Protection of New Varieties of Plants, Dec. 2, 1961, 33
U.S.T. 2703, 815 U.N.T.S. 89 (revised in 1972, 1978, and 1991).
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law of nations.”177 This congressional power likely extends to treaties, such
as the Genocide Convention178 and the Convention Against Torture,179
that define “offenses against the law of nations.”
The point in reciting these examples of congressional power is to
demonstrate that some subjects that have been or are likely to be
addressed in international agreements fall partly within the constitutional
powers of Congress and, therefore, international agreements on those
subjects should involve Congress. When that is the case, a restriction
requiring that such treaties be terminated only “for cause” would not
infringe the President’s executive power because that power is already
shared with Congress. Similarly, if a President sends an international
agreement for Senate ratification, even if such action would not be
constitutionally required, then by the act of seeking the Senate’s advice and
consent, the President would signal that Senate involvement is desirable
and thus unlikely to “impede the President’s ability to perform his
constitutional duty.”180
2.
“For Cause” for Treaties
What would “for cause” or “good cause” mean in the context of treaty
termination? Clearly, the meaning cannot be transported wholesale from
the Appointments Clause context; a treaty cannot be derelict in its duties
like an executive official can. However, as in the context of an executive
officer’s job performance, one can develop a list of circumstances in which
having the option of unilateral presidential treaty termination would be
desirable.
Humphrey’s Executor and Morrison present two competing models for a
“good-cause” restriction. In Humphrey’s Executor, the relevant statute listed
several “causes,” though it did not use that term, and the Court held the
statute’s specification of “inefficiency, neglect of duty, [and] malfeasance in
office”181 to be an exclusive and exhaustive enumeration of the permissible
reasons for removal.182 The independent counsel statute upheld in Morrison
provides a different model. The Morrison statute specified, but did not
define, “good cause” as one in a list of permissible reasons for removal.
The statute stated that an independent counsel could be removed from
177. U.S. CONST. art. I, § 8.
178. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
102 Stat. 3045, 78 U.N.T.S. 277.
179. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 113.
180. Morrison v. Olson, 487 U.S. 654, 691 (1988).
181. Humphrey’s Ex’r v. United States, 295 U.S. 602, 620 (1935).
182. Id. at 632 (“[A]s to officers of the kind here under consideration, we hold that no removal
can be made during the prescribed term for which the officer is appointed, except for one or more of
the causes named in the applicable statute.”).
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office “only for good cause, physical disability, mental incapacity, or any
other condition that substantially impairs the performance of such
independent counsel’s duties.”183
Humphrey’s Executor and Morrison suggest that either model —
enumeration of causes or a general reference to “good cause” — would be
constitutionally sufficient. Following Humphrey’s Executor, Congress could
enumerate particular causes that would justify the President in unilaterally
terminating a treaty. For example, a “for-cause” RUD could specify that
“the United States declares that the U.S. President shall terminate U.S.
membership in the treaty only in accordance with international law or for
reasons of national defense.” Alternatively, Congress could follow the
Morrison example and simply state that the President may terminate the
treaty unilaterally if he has “good cause.” Such a “good-cause” RUD could
provide that “the United States declares that the U.S. President may
terminate U.S. membership in the treaty only upon showing good cause
for such termination.” Politically, the use of an unspecified “good-cause”
limitation may be wise. Enumerating particular causes may engender
awkwardness and ill-will with treaty partners by codifying expectations
about things that are likely to go wrong in the treaty relationship. Details
about the potential future deterioration of the relationship could develop
into a self-fulfilling prophecy.
In the treaty context, “good cause” almost certainly should include the
reasons that a treaty party may terminate a treaty under international law,
both because the reasons permitted under international law are very basic
and because termination in accordance with international law is less likely
to engender negative foreign policy consequences.
The Vienna Convention on the Law of Treaties (VCLT) specifies
several reasons that justify termination under international law.184 Though
the United States has not ratified the VCLT, its provisions are understood
to codify customary international law,185 which suggests some minimum
“causes” that would satisfy any “good-cause” requirement imposed by
Congress. The VCLT justifications include, inter alia, material breach by a
183. Morrison, 487 U.S. at 663.
184. Vienna Convention on the Law of Treaties, art. 34, opened for signature May 23, 1969, 1155
U.N.T.S. 331.
185. See Transmittal of the Vienna Convention on the Law of Treaties, S. EXEC. DOC. NO. L,
92nd Cong., 65-118, at 1 (1971) (statement of Secretary of State William P. Rodgers) (emphasizing
that the VCLT “is already generally recognized as the authoritative guide to current treaty law and
practice”); ROLE OF THE UNITED STATES SENATE, supra note 7, at 43–45; id. at 45 (“[T]he Vienna
Convention contains rules governing treaty relationships that are recognized as general principles of
international law by the executive and judicial branches of the United States, as well as by the
international community, even though the United States has not ratified it.” (internal citation
omitted)); id. at 125 n.21 (explaining that the VCLT is “viewed as codifying customary international
law in most respects”).
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treaty partner;186 impossibility of performance resulting “from the
permanent disappearance or destruction of an object indispensable for the
execution of the treaty”;187 “fundamental change of circumstances” if the
circumstances “constituted an essential basis of the consent of the parties
to be bound by the treaty” and “the effect of the change is radically to
transform the extent of the obligations still to be performed under the
treaty”;188 severance of diplomatic relations where such relations are
indispensable to the functioning of the treaty;189 and the “[e]mergence of a
new peremptory norm of general international law.”190
This approach accords with the considered view of at least the Senate
Foreign Relations Committee. In the aftermath of President Carter’s
announcement that he would unilaterally terminate the mutual defense
treaty with Taiwan, the Committee prepared a report on Senate Resolution
15, which was a proposed sense of the Senate resolution regarding treaty
termination.191 The Committee proposed amendments to the resolution,
resulting in the following text:
Resolved, That it is the sense of the Senate that treaties or treaty
provisions to which the United States is a party should not be
terminated or suspended by the President without the concurrence
of the Congress except where —
(1) the treaty provisions in question have been superseded by
a subsequent, inconsistent statute or treaty; or
(2) material breach, changed circumstances, or other factors
recognized by international law, or provisions of the treaty
itself, give rise to a right of termination or suspension on
the part of the United States;
but in no event where such termination or suspension would —
(A) result in the imminent involvement of United States
Armed Forces in hostilities or otherwise seriously
and directly endanger the security of the United
States; or
(B) be inconsistent with the provision of —
(i) a condition set forth in the resolution of
ratification to a particular treaty; or
(ii) joint resolution;
186. VCLT, art. 60.
187. Id. art. 61.
188. Id. art. 62.
189. Id. art. 63.
190. Id. art. 64.
191. For details on the congressional action and ultimate failure to adopt the resolution, see
Goldwater v. Carter, 617 F.2d 697, 701 (D.C. Cir. 1979).
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specifying a procedure for the termination or suspension of such
treaty.192
In its comments regarding paragraph (2), the Committee explained,
“Where international law recognizes certain circumstances under which
the United States has the right to terminate, suspend, or withdraw from a
treaty, the President should ordinarily be the one to make the required
judgment before taking the appropriate action for the United States,” but
“[c]ongressional concurrence, in such circumstances, can ordinarily be
presumed.”193 The Committee explained that paragraph (2) summarized
such circumstances, but “[a] fuller listing can be derived by reference to
customary international law, as reflected generally in the Vienna
Convention on the Law of Treaties.”194
The Committee then enumerated fourteen separate circumstances in
which the Vienna Convention gives a country “the right to terminate
treaties”:
(1)
in conformity with the provisions of the treaty;
(2)
by consent of all the parties after consultation with the other
contracting states;
(3)
where it is established that the parties intended to admit the
possibility of denunciation or withdrawal;
(4)
where a right of denunciation or withdrawal may be implied
by the nature of the treaty;
(5)
where it appears from a later treaty concluded with the same
party and relating to the same subject matter that the matter
should be governed by that treaty;
(6)
where the provisions of the later treaty are so far
incompatible with those of the earlier one that the two
treaties are not capable of being applied at the same time;
(7)
where there has been a material breach by another party;
(8)
where the treaty has become impossible to perform;
(9)
where there has been a fundamental change of
circumstances;
192. S. FOREIGN RELATIONS COMM., TREATY TERMINATION RESOLUTION: REPORT OF THE
COMMITTEE ON FOREIGN RELATIONS OF THE UNITED STATES SENATE TOGETHER WITH
ADDITIONAL VIEWS ON S. RES. 15, S. REP. NO. 96–119, at 1 (May 7, 1979).
193. Id. at 9–10.
194. Id.
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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(10)
where there has been a severance of diplomatic or consular
relations and such relations are indispensable for the
application of the treaty;
(11) where a new peremptory norm of international law emerges
which is in conflict with the treaty;
(12) where an error was made regarding a fact or situation which
was assumed by that state to exist at the time when the
treaty was concluded and formed an essential basis of its
consent to be bound;
(13) where a state has been induced to conclude a treaty by the
fraudulent conduct of another state; and
(14) where a state’s consent to be bound has been procured by
the corruption or coercion of its representatives or by the
threat or use of force.195
The Report then emphasized that even in the enumerated circumstances
“the President should consider the impact of his determinations and the
importance of building support for his policies in deciding whether and
how to involve the Congress in his course of action,” concluding that the
fact “[t]hat Congressional concurrence may ordinarily be presumed does
not imply that Congressional opinion should not be sought.”196
Senate Resolution 15 was reported to the Senate, but was not
adopted.197 Nonetheless, the Report provides a thoughtful analysis of what
the relevant Senate committee considers sufficient causes to terminate a
treaty — causes so clear that it is willing to allow the President to
“presume” Congress’s agreement to terminate. It is not coincidental that
the Committee looked to the “causes” for termination contained in the
VCLT. Conformity with the VCLT’s provisions ensures that a U.S.
termination would be regarded as legitimate and lawful under international
law, which greatly decreases the foreign relations risks inherent in a treaty
termination. For a termination that does not meet VCLT standards, the
Senate would have a greater claim to involvement in the process — at least
to the extent of consultation — due to the power over foreign relations
that it shares with the President.
In imposing a substantive limitation on a particular treaty, the Senate
could specify additional circumstances in which it would want the
President to be able to terminate unilaterally. This might occur if, for
195. Id.
196. Id.
197. See Library of Congress, Bill Summary and Status, http://thomas.loc.gov/cgibin/bdquery/D?d096:2:./temp/~bdbGMY:@@@L&summ2=m&|/home/LegislativeData.php?n=
BSS;c=96|.
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example, the United States had a friendship, commerce, and navigation
treaty with a particular country that was allied with a country with which
the United States had strained relations. To incentivize the treaty party to
exercise its power or influence to restrain the third country’s actions,
Congress might specifically permit the President to terminate the treaty in
response to actions taken by the third country against U.S. interests. In
such a circumstance, the treaty partner would not have breached the terms
of the treaty — and so likely would not fall within the VCLT categories for
termination outlined above. But Congress might want to authorize the
President to use the treaty as a foreign policy tool to incentivize the treaty
partner’s actions.
The most important category of reasons for termination that would fall
outside “good cause” or enumeration of good causes is simple presidential
policy disagreement with an extant treaty analogous to the policy
disagreement that the Supreme Court held did not constitute “cause” in
Humphrey’s Executor. For example, an outgoing President with a lame-duck
Senate might ratify a human rights or arms control treaty. The new
President, who may have campaigned against the treaty, might announce
upon taking office that he will withdraw the U.S. instrument of ratification,
terminating U.S. membership in the treaty as a matter of international law.
In such a circumstance, nothing would have changed but the President’s
politics. The new President therefore would not be able to establish,
despite the inevitable spin efforts, that the termination was one “for
cause.”
For any particular termination, there could, of course, be debate over
whether the President acted with “good cause,” as the Senate defines that
term in the relevant treaty RUD. But such a dispute would at least signal a
narrowing of the scope of disagreement: the Senate and the President
would no longer wage battle over the abstract allocation of constitutional
powers, but rather would focus on the merits of a particular termination.
C.
Legislation Versus Reservation
The last question is one of form: whether a “for-cause” restriction on
unilateral presidential treaty termination should be effected through
legislation or through a RUD. Some commentators advocate legislation
that would prescribe the role of Congress or the Senate in treaty
termination.198 But legislation poses practical problems.
198. See, e.g., Glennon, supra note 3, at 565 (“[T]here is no reason to believe that Congress could
not prescribe such a procedure by statute. This was the position taken by the Committee in its report
on the Byrd Resolution. Nor is there any reason to believe that a statute overturning the transmittal
of a given notice of termination would be ineffective, at least if it were enacted before the effective
date of the notice of termination.” (citations omitted)); Moriarty, supra note 3, at 128 (“[T]ermination
legislation passed by the Congress would likely be constitutional and, as such, the President would
2013]
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Problems with Legislation on Termination
Use of legislation to govern treaty termination would pose several
practical problems.
First, general legislation governing termination of all treaties would be
overbroad. For example, legislation stating that no treaty could be
terminated absent Senate or congressional consent would require such
consent even for treaties that, if considered individually, the Senate or
Congress would want the President to be able to terminate unilaterally or
through some mechanism that would be faster than obtaining the consent
of one or both houses of Congress.
The overbreadth problem could be overcome if Congress were to pass
specific legislation dealing with individual treaties. Congress could make a
more particularized determination of which treaties would be more likely
to need speedy unilateral presidential termination and which could bear the
delay necessary to consult Congress at the time that termination became
necessary. However, Congress’s powers of imagination and foresight
might not be perfect, and such particularized legislation would be difficult
to achieve. It would require not just the Senate but also the House of
Representatives — which might be substantially less familiar than the
Senate with Article II treaties in general and with any particular Article II
treaty — to pass on the merits of legislation on a particular treaty.
A related problem would arise if legislation were applied retroactively to
treaties that were ratified before the legislation’s passage. In that
circumstance, it would be impossible to know if the President who ratified
the treaty would have done so with the limitation that he could not
unilaterally terminate the treaty.
A more specific retroactivity problem would occur if Congress passed a
unilateral termination prohibition after the President announced his
intention to terminate a treaty. One could imagine that a President, relying
on Goldwater and Kucinich, could announce his intent to terminate a treaty,
only to have both houses of Congress pass legislation attempting to
instruct him to rescind any notice of termination that had been filed. That
have the constitutional duty to see that it was executed.”); id. at 147, 160; cf. Scheffer, supra note 3, at
1005–06 (“[F]ramework legislation interpreting the Constitution should be considered by Congress
(or the Senate alone in a Senate resolution) which would request that a termination clause be included
in all new treaties.”). My argument differs from Moriarty’s. First, although Moriarty discusses the
Appointments Clause precedents in general, he does not engage with the “for-cause” limitations on
removal that they involve. Second, Moriarty proposes legislation, not a RUD, limiting presidential
termination. The difference between legislation and a RUD has important consequences for the
constitutional basis of the arguments. Because Moriarty envisions legislation governing
termination — a possibility I discount — his argument depends on the President’s duty under the
Take Care Clause. Moriarty, supra note 3, at 164. My argument with regard to a treaty termination
limitation via a RUD rests instead on the structural allocation of powers between Congress and the
President.
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sort of individualized, but reactive, legislation would complicate, not
clarify, the lawful authority for treaty termination, and the courts probably
would not adjudicate the issue. The President could veto the legislation or
refuse to sign it, but Congress could override his veto by a two-thirds vote.
Alternatively, the President could sign the legislation, as he might do if, for
example, the provision were attached to a defense funding bill, but then be
forced to issue a signing statement explaining his belief in the provision’s
unconstitutionality.199
Any legislation would be better applied only prospectively to ensure that
the President and Senate at the time of ratification have full information
and to avoid precipitating a constitutional dispute at the point at which the
President believes the United States needs to terminate a treaty.
For all of these reasons, legislation about treaty termination presents a
problematic form for effectuating congressional restrictions on treaty
termination. The rest of this Part addresses the other form a treaty
termination restriction could assume — a RUD.
2.
Conditional Consent as a Superior Mechanism
The Senate’s power to condition its consent to treaties via RUDs is
well-established.200 The Supreme Court has recognized that the Senate is
“not required to adopt or reject [a treaty] as a whole, but may modify or
amend it.”201 A RUD provides a superior means of effectuating a “forcause” limitation on treaty termination.
The D.C. Circuit in Goldwater explicitly reserved the question of the
constitutionality and effect of a RUD relating to termination,202 and
suggested that such a RUD might have affected the analysis if it had been
included in the Taiwan mutual defense treaty.203 In its report on the
199. For an example of this practice in a similar foreign relations context, see President Obama’s
statement upon signing the “Supplemental Appropriations Act, 2009.” Press Release, U.S. President
Barack Obama, Statement upon Signing HR2346 (June 26, 2009), available at
http://www.whitehouse.gov/the-press-office/statement-president-upon-signing-hr-2346.
The
statement explains that the President signed the bill because it “provides the necessary resources for
our troops while supporting ongoing diplomatic and development efforts around the world,” but
further explains that because
provisions of this bill . . . would interfere with my constitutional authority to conduct foreign
relations by directing the Executive to take certain positions in negotiations or discussions with
international organizations and foreign governments, or by requiring consultation with the
Congress prior to such negotiations or discussions[,] I will not treat these provisions as limiting
my ability to engage in foreign diplomacy or negotiations.
Id.
200. See HENKIN, supra note 6, at 181; Glennon, supra note 10, at 258.
201. Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869).
202. Goldwater v. Carter, 617 F.2d 697, 709 (D.C. Cir. 1979).
203. See id. at 698 (“The Senate, in the course of giving its consent, exhibited no purpose and
took no action to reserve a role for itself by amendment, reservation, or condition in the effectuation
of this provision.”); id. at 708 (“No specific restriction or condition on the President’s action is found
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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Taiwan Enabling Act, the Senate Foreign Relations Committee also noted
that “[a]n incompatible expression of the will of the Congress — or of
two-thirds of the Senate” via legislation or a RUD would have “placed the
President’s authority on far shakier legal ground.”204 Commentators who
have touched on the question — though none have considered it
extensively and all envision only a procedural RUD — seem to agree with
the D.C. Circuit that such a reservation would be material to the
constitutional question and, beyond that, that a termination RUD would
be valid.205 The Restatement also takes that position.206 Professor Louis
Henkin, who argued in favor of the President’s unilateral termination
power, similarly recognized that a Senate RUD governing termination
posed a separate question from the unilateral termination power and might
be constitutionally permissible.207 Others have argued that the RUD’s
validity would depend on the subject of the treaty: if the treaty covered an
issue within Congress’s powers or within the shared powers of Congress
within the Constitution or this treaty itself.” (emphasis added)). At least one Senator also considered a
RUD governing termination. In a Senate Foreign Relations Committee hearing in 1979, Senator
Jacob K. Javits of New York asked State Department Legal Adviser Herbert Hansell whether the
Senate could “by reservation to a specific treaty, prohibit the President from terminating that treaty
without Senate or Congressional consent.” TREATY TERMINATION HEARINGS, supra note 2, at 213.
The official State Department response explained that “[a] reservation of this kind attached to the
Senate’s resolution of ratification would have the same policy objections and raise the same
Constitutional questions as a general statute prohibiting the President from terminating treaties
without Senate or Congressional consent.” Id.; see also id. at 202–03 (providing official State
Department response to the question, “Can the Congress by law prohibit the President from
terminating existing or future treaties without Congressional concurrence?” and stating, “[A] statute
purporting to prohibit the President from terminating existing or future treaties without
Congressional concurrence would be unwise as a matter of policy, would raise serious Constitutional
questions, and would be in conflict with a Constitutional practice that has worked successfully for
nearly 200 years.”). But see id. at 589 (“Congress could have expressly conditioned its ratification of
the US-ROC Mutual Defense Treaty on the president’s agreement to obtain congressional approval
before terminating the treaty, but Congress did not do so.” (quoting Lawrence Tribe, A Constitutional
Red Herring: Goldwater v. Carter, NEW REPUBLIC (Mar. 17, 1979))).
204. S. COMM. ON FOREIGN RELATIONS, supra note 117, at 18.
205. See, e.g., Henkin, supra note 3, at 654 (concluding that the Senate might be able to condition
its consent on “a presidential undertaking to terminate [a] treaty only in accordance with prescribed
procedures” if such a condition was “applicable to the treaty before it and [had] a plausible relation”
to the treaty); Pappas, supra note 32, at 522–23 (concluding “when viewed as a condition to the
Senate’s consent, and if justified by the specifics of the particular treaty, a certain reservation might
be sustainable”).
206. RESTATEMENT, supra note 31, § 339 cmt. a (internal citations omitted).
207. Henkin, supra note 3, at 654; id. (“A different constitutional issue is whether the Senate can
require, as a condition of its consent to a particular treaty, a presidential undertaking to terminate that
treaty only in accordance with prescribed procedures. Perhaps there is no meaningful limit on the
price the Senate can exact as the condition for consenting to a treaty. Surely, it ought not to impose a
condition that has no relation to the treaty before it, or that requires the President to accept the
Senate’s view on some general constitutional principle, even one relating to the treaty power. But a
condition applicable to the treaty before it and having a plausible relation to it might pass.”).
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and the President, then Congress could reserve to itself a role in the
treaty’s termination.208
The Constitution is silent about RUDs, as it is about treaty termination,
so the source of the Senate’s authority to condition its consent is
unclear.209 The Senate’s power of conditional consent has been understood
as a lesser-included power to its general consent authority. That is, “[i]f the
Senate can give or withhold consent it can also give its consent on
condition that changes be made,” or, phrased differently, “the Senate
withholds consent from the treaty presented to it but indicates how the
treaty might be revised so as to earn its consent, and gives consent in
advance to a treaty as so revised.”210
The Restatement takes the Senate’s authority for granted, offering no
constitutional rationale.211 Others have noted that Senate RUDs are a
matter of constitutional custom.212 The practice of the Senate attaching
RUDs to treaties dates from the Jay Treaty in 1795.213 RUDs have been
fairly frequent since then,214 as evidenced by the fact that “approximately
fifteen percent of all Article II treaties since the Founding have been
ratified subject to conditions that require subsequent assent from other
treaty parties.”215 In recent years, many important U.S. treaties, both
bilateral and multilateral, have included RUDs.216
208. See Pappas, supra note 32, at 522–23 (“[I]f justified by the specifics of the particular treaty, a certain
reservation might be sustainable.” (emphasis added)); Randall, supra note 32, at 1124 (“If the statutes
and conditions restrict the President’s creation, interpretation, and termination of agreements over
topics that are subject to congressional authority, then they are constitutional.” (footnote omitted)).
209. Cf. Glennon, supra note 3, at 534 (“The text of the Constitution says nothing concerning the
authority of the Senate to condition its consent to treaties. In this respect the treaty power is identical
to the appointment power: as with treaties, the constitutional text requires the advice and consent of
the Senate for appointments, but is silent concerning the Senate’s power to condition its consent to
appointments. Yet it is now well settled that the Senate lacks power to condition its consent to
appointments but can condition its consent to treaties.” (footnotes omitted)).
210. HENKIN, supra note 6, at 181; see also Bradley & Goldsmith, supra note 3, at 405.
211. See RESTATEMENT, supra note 31, §§ 303, 314.
212. Glennon, supra note 3, at 534 (“The Senate’s power to condition its consent to treaties dates
from Senate approval of the Jay Treaty, with reservations, in 1798. That power, the Senate Foreign
Relations Committee noted, is part of customary constitutional law in the United States.”).
213. See Treaty of Amity, Commerce, and Navigation (Jay Treaty), U.S.-Gr. Brit., art. 12, Nov. 19,
1794, 8 Stat. 116, available at http://avalon.law.yale.edu/18th_century/jay.asp#art12. Negotiated by
Supreme Court Chief Justice John Jay, the Jay Treaty was “designed to resolve a variety of
compensation, trade, and boundary disputes between the United States and Great Britain.” Bradley &
Goldsmith, supra note 3, at 406. The Senate consented to the treaty only on the condition that an
article limiting U.S. shipping from British possessions in the West Indies be suspended. S. Res. of
June
24,
1795,
3d
Cong.
(1795)
(enacted),
available
at
http://avalon.law.yale.edu/18th_century/jayresol.asp; see also Bradley & Goldsmith, supra note 3, at
406 (describing the reservation).
214. RESTATEMENT, supra note 31, § 303 cmt. d (“The Senate often has given its consent subject
to conditions.”).
215. Bradley & Goldsmith, supra note 3, at 404.
216. See, e.g., New START Treaty: Resolution of Advice and Consent to Ratification, Dec. 22,
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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Either the President or the Senate can propose RUDs, and both have.217
Even after the Senate has consented to a treaty, either with or without
RUDs, the President still has discretion to decide whether to make the
treaty.218 If the Senate has attached a RUD, “the President, if he makes the
treaty, must include the reservation in the instrument of ratification or
accession, or otherwise manifest that the adherence of the United States is
subject to the reservation.”219 This order of authority means that the
Senate may consent subject to a RUD that may act as a poison pill, causing
the President to decline to make the treaty because he can only make the
treaty with the Senate reservation.220 However, it also means that RUDs
can never be forced upon an unwilling President. If the Senate consents
subject to a RUD that the President does not like, he or she may face a
difficult choice of ratifying the treaty with the unwelcome RUD or
abandoning the treaty,221 but no RUD can go into effect without the
President assenting to it by making the treaty.
2010, available at http://www.state.gov/t/avc/rls/153910.htm (listing RUDs that the Senate imposed
on U.S. ratification of the Treaty between the United States of America and the Russian Federation
on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, signed in Prague
on April 8, 2010, Treaty Doc. 111-5); Reservations to International Convention on the Elimination
of All Forms of Racial Discrimination (CERD), Mar. 7, 1966, S. EXEC. DOC. No. 95-C (1978), 660
U.N.T.S.
195,
available
at
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV2&chapter=4&lang=en#EndDec (listing U.S. RUDs to CERD transmitted at the time of U.S.
ratification in 1994); Reservations to International Covenant on Civil and Political Rights, Dec. 16,
1966,
999
U.N.T.S.
171,
available
at
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang=en#EndDec (listing U.S. RUDS to the ICCPR transmitted at the time of U.S.
ratification in 1992).
217. See RESTATEMENT, supra note 31, § 314, cmt. a (“Many reservations entered by the United
States were requested by the Senate, but the President may, of course, enter a reservation on his own
initiative. Since such a reservation modifies the treaty, it, too, requires Senate consent.”); Bradley &
Goldsmith, supra note 3, at 404 (noting that with regard to reservations to human rights treaties,
“[u]sually the Senate has proposed these conditions, but sometimes the President has as well”).
218. See RESTATEMENT, supra note 31, § 303, Reporters’ Note 3; HENKIN, supra note 6, at 181.
219. RESTATEMENT, supra note 31, § 314(1).
220. Id. § 314; see also id. § 303, Reporters’ Note 3 (“Reservations proposed by the Senate or other
conditions attached to its consent may move the President not to adhere to the treaty. For example,
President Taft declined to ratify the arbitration treaties of 1911 with France and Great Britain after
the Senate demanded unwelcome reservations.”).
221. Id. § 314 cmt. b. In comments submitted to the Senate Foreign Relations Committee when it
was considering S. Res. 15 on treaty termination, State Department Legal Adviser Herbert Hansell
noted:
[T]he President would be put in a very difficult and awkward position by a reservation
[requiring Senate or Congressional consent prior to a treaty termination]. He might feel it
necessary to sign an instrument of ratification that purports to restrict his Constitutional
powers and that would have many policy objections. Or the President might feel compelled
not to sign the instrument of ratification — in which case the treaty would not enter into
force.
TREATY TERMINATION HEARINGS, supra note 2, at 213. Hansell, however, noted a “third
alternative . . . analogous to the procedure often used for legislation which the President believes to
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Although the Senate’s power of conditional consent is not unlimited,
“[t]here is no accepted doctrine indicating limits on the conditions the
Senate may impose.”222 The Restatement and commentators agree that a
RUD “must have some relationship to the treaty,” though this is merely a
“weak nexus requirement.”223 The Restatement notes that “a condition
having plausible relation to the treaty, or to its adoption or
implementation, is presumably not improper, and if the President proceeds
to make the treaty he is bound by the condition.”224 Professors Bradley
and Goldsmith have also argued for two other limitations on the Senate’s
power: first, that the “Senate cannot use its conditional consent power to
alter pre-existing federal law,”225 and second, that “the Senate’s conditional
consent power might be limited to the extent that it unduly impinges on
the prerogatives of the other branches of the federal government.” 226
A RUD relating to treaty termination would clearly satisfy the
Restatement requirement: it would relate to the treaty to which it was
attached. It would also satisfy Bradley and Goldsmith’s proposed
limitations. First, there is no settled, pre-existing federal law governing
treaty termination. The Supreme Court’s plurality opinion in Goldwater held
the issue to be a political question and did not address the merits of the
dispute between the President and the plaintiff congressmen.
A more serious question arises regarding whether a treaty termination
RUD would satisfy Bradley and Goldsmith’s second proposed limitation,
that is, whether it would unduly infringe the powers of the executive
branch. Bradley and Goldsmith argue in favor of RUDs to human rights
treaties in general and do not address the question of a treaty termination
RUD. The reasons they give for the constitutionality of human rights
treaty RUDs, however, apply equally to justify a treaty termination RUD.
They argue that none of the RUDs attached to human rights treaties
violate the separation of powers for three reasons. First, the Senate does
contain unconstitutional provisions.” Id. He proposed that the President could “sign the instrument
of ratification, but with a statement objecting to the condition, reserving his position, and making it
clear that he will apply the treaty without the condition.” Id. Hansell noted, “We are not aware of any
cases in which this procedure has been followed for treaties, but it has often been used with respect
to legislation. The difficulty, of course, is that this alternative raises the possibility of a direct
Constitutional clash between the President and the Congress.” Id. Proposing a signing statement for a
treaty is not just unprecedented — both in 1979 and now — it is also radical. Such a procedure
would vitiate the Senate’s ability to condition its consent to treaties by allowing the President simply
to ignore conditions he does not like, upsetting a constitutional process that stretches back to the Jay
Treaty.
222. RESTATEMENT, supra note 31, § 303, cmt. d.
223. Bradley & Goldsmith, supra note 3, at 451; see also RESTATEMENT, supra note 31, § 303, cmt.
d (“Surely, a condition that has no relation to the treaty would be improper, for example, a
requirement that the President dismiss or appoint some cabinet officer.”).
224. RESTATEMENT, supra note 31, § 303, cmt. d.
225. Bradley & Goldsmith, supra note 3, at 452.
226. Id. at 453–54.
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TREATY TERMINATION AND THE SEPARATION OF POWERS
293
not “‘impose[]’ the RUDs on an otherwise unwilling President.”227 Second,
because the Senate “is required to attach the RUDs before, and not after,
ratification, and the President is never obligated to accept [them],”
unilateral Senate RUDs “would not in any way bind the President.”228
Finally, RUDs are not “antimajoritarian” because “the minority power of
conditional consent is a direct consequence of the Constitution’s particular
super-majoritarian treatymaking procedure.”229 All of these reasons apply
equally to a treaty termination RUD.
The example Bradley and Goldsmith provide of a RUD that may
infringe the power of other branches (they do not state that the RUD would
infringe the powers) is a “condition requiring that an ambassador pursue a
particular policy with another country,” because “the condition interfere[s]
with the constitutional prerogatives of another branch, such as . . . the
executive’s discretion in conducting foreign affairs.”230 A treaty
termination RUD would not fall in that category because it does not
compel the President to do anything or to exercise any of his sole powers
in a particular way. In this key respect, a treaty termination RUD would
resemble well-established statutory restrictions on the President’s removal
power.231
227. Id. at 443.
228. Id. at 443–44.
229. Id. at 444.
230. Id. at 454; cf. Memorandum Opinion from the Office of Legal Counsel to the Acting Legal
Adviser, Department of State, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign
Appropriations Act (June 1, 2009), available at http://www.justice.gov/olc/2009/section7054.pdf
(concluding that a provision of an appropriations bill, signed into law by the President, that
purported to prohibit use of appropriated funds to “pay the expenses for any United States
delegation to a specialized United Nations . . . agency, body, or commission that is chaired or
presided over by a country with a government that the Secretary of State has determined supports
international terrorism, unconstitutionally infringes on the President’s authority to conduct the
Nation’s diplomacy, and the State Department may disregard it”); Office of Legal Counsel,
Memorandum Opinion from the Office of Legal Counsel to the Counsel to the President, Bill to
Relocate United States Embassy from Tel Aviv to Jerusalem, (May 16, 1995), available at
http://www.justice.gov/olc/s770.16.htm (concluding that a bill that conditions the Executive’s
ability to obligate appropriated funds on “the building and opening of a United States Embassy in
Jerusalem” is unconstitutional).
231. A “for-cause termination” RUD would also not be the first time the Senate has used RUDs
to resolve concerns about future executive branch actions with regard to particular treaties. The
Senate conditioned its approval of the Intermediate Range Nuclear Forces Treaty on what has
become known as the “Byrd-Biden condition,” a condition that “the United States shall interpret the
Treaty in accordance with the common understanding of the Treaty shared by the President and the
Senate at the time the Senate gave advice and consent to ratification.” THE ROLE OF THE UNITED
STATES SENATE, supra note 7, at 129. The Senate included the condition in its resolutions of
ratification for all subsequent arms control agreements, and broadened the condition by stating that it
applies to all treaties, not just the one under consideration in a particular resolution. Id. at 130. In
addition, RUDs have long addressed domestic law and have done so more exclusively and directly
than a treaty termination RUD would. The Senate has for many years attached declarations to certain
treaties declaring that they are non-self-executing, and, in the wake of the Supreme Court’s decision
in Medellín, has begun to attach declarations to some treaties specifying that they are self-executing.
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*
[Vol. 53:247
*
The Appointments Clause jurisprudence suggests both the existence
and the limits of Congress’s power to influence presidential treaty
terminations. Myers indicates that a requirement that the Senate or
Congress consent prior to a termination is unconstitutional, as the
presidential power proponents have long argued. But Humphrey’s Executor
and Morrison suggest that the Senate is not powerless; rather, if it acts ex
ante, it can impose a “good-cause” or “for-cause” restriction on
presidential treaty termination. A RUD’s more targeted nature provides a
better form for a substantive restriction than legislation, and the iterative
process by which the Senate and President formulate and consent to
RUDs offers a cooperative way for the two branches to avoid future
constitutional battles. The next Part turns to the practical implications of
the “for-cause” RUD this Part has proposed.
IV. PRACTICAL CONSEQUENCES OF A “FOR-CAUSE” RUD
The preceding Part established the constitutional basis for a “for-cause”
RUD governing treaty termination; this Part turns to its practical effects.
Section IV.A discusses how such a RUD could be enforced. Section IV.B
suggests how a “for-cause” RUD could impact the debate over the
interchangeability of treaties and congressional-executive agreements, and
Section IV.C considers when and why a “for-cause” RUD might be
proposed.
A.
Enforceability
Fundamentally, what constitutes “good cause” is left to the judgment of
Congress, as is the choice to enforce a good-cause RUD. If Congress
leaves “good cause” undefined, then the President must convince
See Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement
of Treaties, 122 HARV. L. REV. 599, 669–70 & nn.316–18 (2008). These declarations have provoked
some controversy regarding their validity, including arguments that because they affect only U.S.
domestic law, they do not modify the United States’s international obligations and therefore do not
constitute part of the treaty for purposes of the Supremacy Clause. See id. at 672–75 (discussing
arguments against non-self-execution RUDs). However, adoption of non-self-execution RUDs has
been a consistent practice since the 1970s. See id. at 669. A treaty termination RUD would not be
subject to the same criticism as a non-self-execution RUD: whereas non-self-execution RUDs
address solely the domestic effect of a treaty, a treaty termination RUD, in the process of addressing
the domestic allocation of termination power, would affect and specify conditions under which the
United States would terminate the treaty or withdraw its participation in the treaty — matters of great
interest and concern to other treaty parties.
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TREATY TERMINATION AND THE SEPARATION OF POWERS
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Congress that his termination of a treaty was for a good cause — or face
the political costs that Congress can exact.232
Some may wonder what — if anything — is accomplished by imposing
a “restriction” on the President that can be “enforced” only by Congress,
and not by the courts. This is a valid question, but one that is not unique
to the treaty termination context. An analogy can be drawn to war powers,
another area in which the President and Congress share power to an
undetermined extent and in which the courts often choose not to
intervene.233 Despite the lack of judicial resolution of either treaty
termination or war powers questions, both contexts raise serious
constitutional issues regarding the fundamental allocation of powers under
the Constitution.234 The lack of judicial resolution does not mean that the
issues cannot be resolved, or at least addressed, but such a resolution will
take a more practical and less obvious form than a judicial opinion.
Without the involvement of the courts, the political branches can engage
in legal debates and battles. It is important to realize when congressional
actions are functioning as attempts to defend Congress’s views on
constitutional law, particularly the structural allocation of constitutional
powers.
If Congress were to impose a “for-cause” treaty termination RUD and
the President were to disobey it by terminating a treaty without giving any
232. Cf. Brief for the United States in Opposition to Certiorari at *27, Goldwater v. Carter, 444
U.S. 996 (1979) (No. 79–856), 1979 U.S. Briefs 856 (“Congress has ample means within the political
process to assert and implement its view on a particular proposed treaty termination. Congress’
Article I powers to regulate foreign commerce, raise and support armies and navies, declare war, levy
and collect taxes, and spend public funds for the general welfare give it a formidable arsenal of
weapons in dealing with the President on questions of foreign policy or in frustrating Presidential
initiatives with which a majority of both Houses disagree.”).
233. For example, in Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), Congressmen sued
President Clinton, claiming his use of force against Yugoslavia in defense of Kosovo violated the
Constitution’s allocation of war powers. A divided panel of the D.C. Circuit affirmed the district
court’s dismissal of the suit on the grounds that the congressmen lacked standing and the suit was a
political question. Id. Judge Silberman held it to be a political question; Judge Randolph held that the
Congressmen lacked standing and that the suit was moot; and Judge Tatel held that the congressmen
lacked standing, but that the suit did not raise a political question. Id. Similarly, in Doe v. Bush, 323
F.3d 133 (1st Cir. 2003), military personnel and Congressmen attempted to get a court injunction
against the invasion of Iraq in March 2003. The First Circuit affirmed the district court’s dismissal of
the suit, holding that it was not ripe. Id. at 140. The Supreme Court recently signaled a narrowing of
the political question doctrine, which could affect war powers and other cases in the future. See
Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).
234. An additional recent example is the U.S. District Court for the District of Columbia’s
decision in Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), in which the district court dismissed
a suit brought by the father of a U.S. citizen who challenged his son’s alleged inclusion on U.S.
targeted killing lists. The district court ruled that the father lacked standing and also that the question
presented a political question. Id.; see also El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836
(D.C. Cir. 2010) (en banc), cert. denied, 131 S. Ct. 997 (2011) (holding that a lawsuit involving
defamation and other claims brought by the owner of a Sudanese pharmaceuticals plant, which was
destroyed by U.S. missile strikes in 1998, presented a nonjusticiable political question).
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reason at all — or at least any good reason — then Congress could engage
in self-help against the President. Congress would have numerous means
of retaliating, including, for example, holding up confirmation of executive
branch nominees, withholding appropriations, slowpedaling the
President’s legislative priorities, calling executive branch officials to testify
on the issue, or refusing to approve or schedule votes on other
international agreements.
Constitutional debate would be easier to comprehend if it happened
only in the courts and could be authoritatively resolved there as well. It
would be a mistake, however, to think that inter-branch disagreements
about constitutional meaning are not law-making exercises, or, more
importantly, that the provisions being debated are not law. A recent article
by Jack Goldsmith and Daryl Levinson makes this point, arguing that
there are a great number of “constitutional issues” that:
will never be heard by any court and are decided by nonjudicial
political actors in Congress, the executive branch, and state
governments. Constitutional interpretation by political actors is
necessarily decentralized. Different levels and branches of
government take different positions on constitutional issues, and
these disputes must be settled, to the extent they are ever settled,
through political contestation. While political settlements of
constitutional issues may be relatively stable and enduring, there are
no clear rules for resolving constitutional disagreements or for
determining which apparent resolutions should be recognized as
authoritative going forward.235
Goldsmith and Levinson engage this point more broadly when they
highlight the problem of enforcement in “public law,” which includes
domestic constitutional law and international law — “legal regimes that
both constitute and govern the behavior of states and state actors.”236 One
of the several commonalities they identify between constitutional law and
international law is that “there is no sovereign above the sovereign and
thus . . . public law compliance must be conceived and explained by
decentralized self-enforcement.”237 That is, “public law cannot rely on the
enforcement capacity of states for compliance.”238 Of course even when
courts are involved in resolving constitutional questions, they do not have
235. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public
Law, 122 HARV. L. REV. 1791, 1813 (2009).
236. Id. at 1795.
237. Id. at 1840.
238. Id.
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the enforcement capacity to execute the decisions themselves or to ensure
that political actors do so.239
But when even the veneer of authoritative interpretation by courts is
removed from the system — as it is by courts’ refusals to adjudicate treaty
termination cases — the lack of an authoritative interpreter and enforcer
comes into sharper relief. Goldsmith and Levinson point out that
“[l]acking the kind of ‘external’ enforcement mechanism that states
provide for ordinary domestic law, public law regimes must be internally
self-enforcing through some combination of rationally self-interested and
normative, internalized, or role-based motivations.”240 The self-help
mechanisms that Congress could employ against a treaty terminating
President are examples of self-enforcement due to self-interest on the part
of the legislative branch.
The problems of uncertainty and lack of an authoritative enforcement
mechanism that Goldsmith and Levinson identify as common
characteristics of public law systems — international law and domestic
constitutional law — are most acute when the problems in each converge,
as they do for treaty termination and war powers, where domestic actors
disagree on structural constitutional questions implicating international
law. The problems of uncertainty and enforceability are doubled by the
dual lack of authoritativeness in the domestic and international legal
systems. Nevertheless, though the process may be messier and less
organized, constitutional questions about foreign affairs can be answered
in iterations of constitutional exposition by the political branches,
including RUDs regarding treaty termination.
Some might ask whether a “for-cause” limitation on treaty termination
is but a poor substitute for what the congressmen who sued to prevent
unilateral presidential termination sought — namely, an up-or-down vote
on termination by the Senate or both houses of Congress. An ex ante,
“for-cause” RUD lacks the in-the-moment procedural formality of a
Senate or congressional vote on termination at the time the question has
come to the fore, but it likely accomplishes many of the goals that a vote
would serve. Presumably the proponents of a Senate or congressional vote
on treaty termination are not interested in a vote just for the sake of
having a vote. More likely, they envision accomplishing one of two things:
239. Id. at 1831 (explaining that for constitutional theorists, “[c]ourts are cast as powerful
enforcement agents, prevailing upon the political branches of government to comply with their
commands. But of course courts cannot play any such role. Courts are merely subdivisions of
government, lacking the powers of purse and sword that might be used to coerce the compliance of
other government officials and their constituents . . . . With or without judicial review, constitutional
law shares with international law the challenge of coercing the compliance of powerful political
actors — or the inability to do so.”).
240. Id. at 1840.
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first, preventing the treaty termination, or second, forcing debate on a
termination to ensure that it is a wise decision.
If they seek to prevent the treaty termination because the President is
terminating a treaty with which he has only a policy disagreement — not a
“cause” for termination — then the congressmen should be satisfied with
a “for-cause” RUD. The RUD would prevent precisely that sort of
presidential termination, or at least politically penalize a President who is
unable to convince Congress and the public that he has a good “cause.” If
the congressmen instead seek to prevent a President from terminating
even when he or she has “cause” to do so, then the RUD would not assist
the congressmen. The RUD would prevent the President’s hands from
being unduly tied in the face of, for example, a breach by a treaty partner
because the termination can occur immediately and would not be delayed
by the need to schedule a Senate or congressional vote.
A “for-cause” RUD strikes a balance between preventing the most
objectionable unilateral terminations — those based solely on presidential
policy disagreement with an extant treaty — and preserving presidential
prerogatives to act unilaterally when there is “cause” to terminate a treaty.
If the congressmen merely seek inclusion in the termination process,
then they should be even more satisfied with the substantive “for-cause”
RUD. Congress likely seeks inclusion in the termination decision because
it believes the deliberation that occurs in Congress and as a result of
presentation of an issue to Congress leads to better substantive decisions.
The quality of decision-making is improved by the sunlight cast on an
issue as a result of public presentation. Granted, a substantive “for-cause”
RUD results in a different, more stream-lined procedure than a procedural
RUD would, but substance and procedure are not easily disentangled.241
Requiring the executive branch to articulate a “cause” for terminating a
treaty will force much of the same reason-giving and consideration that
would result from presentation of the question to Congress for a vote.
Much as an administrative agency that must articulate a rationale for its
actions, the executive branch will be forced to articulate a “cause” for its
decision to terminate a treaty; in both cases, the rationale is publically
available and subject to governmental and public scrutiny. We trust the
procedural reason-giving requirements to improve or at least constrain
agency decision-making,242 so it stands to reason that a similar requirement
241. See generally HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC
PROBLEMS IN THE MAKING AND APPLICATION OF LAW 154 (William N. Eskridge, Jr. & Philip P.
Frickey eds., 1994) (“Procedural safeguards, appropriately adapted, operate alike in the control of
powers of reasoned elaboration, on the one hand, and of powers of continuing discretion, on the
other. Experience is replete with proof of the vitally important relation between procedure and
substance. A procedure which is soundly adapted to the type of power to be exercised is conducive
to well-informed and wise decisions. An unsound procedure invites ill-informed and unwise ones.”).
242. See 5 U.S.C. § 553 (2006) (notice-and-comment rulemaking under the Administrative
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on the executive branch regarding treaty termination would have similar
decision-improving — and decision-restraining — effects.
It should again be noted, however, that the “for-cause” limitation on
treaty termination would permit unilateral termination only for reasons that
could credibly be cast as for cause. A “for-cause” RUD has the advantage
of leaving in place the current mechanisms for superseding a treaty with
which the executive branch has policy disagreements: consultation with
Congress to pass a superseding statute or with the Senate to ratify a
superseding treaty. Though congressmen’s ideal result might be a
congressional or Senate vote on every treaty termination, a “for-cause”
RUD would capture many of the same deliberative benefits, while
ensuring that the President remains free to act unilaterally and with the
requisite dispatch in situations of termination for cause. Ideally, the “forcause” standard would serve as a proxy for the treaty terminations to
which the Senate would always consent. The Senate could consent to
others in the form of later treaties or superseding statutes, but a treaty
termination RUD could capture those treaty terminations to which the
Senate — if asked by the President — would definitely consent, regardless
of which party controlled Congress. As discussed above, if Congress does
not agree that a President’s “cause” is in fact “good,” then it has many
political tools to register its disapproval.243
B.
Interchangeability
As mentioned in Part I, “for-cause” RUDs have the potential to change
the terms of the debate about the making of international agreements.
Commentators on both sides of the debate about treaty and congressionalexecutive agreement interchangeability have noted that the ease with which
the President can terminate treaties makes treaties less credible
commitments than congressional-executive agreements. At first blush, one
might think that the two-thirds Senate vote required to make a treaty — as
compared to the majority vote of both Houses of Congress required to
make a congressional-executive agreement — would render treaties more
credible. The two-thirds Senate vote requirement for a treaty signals
broad-based public support.244 But those on both sides of the
Procedure Act, Pub. L. No. 79–404, 60 Stat. 237 (1946) (codified as amended in scattered sections of
5 U.S.C.)).
243. See supra note 232 and accompanying text.
244. See Hathaway, supra note 3, at 1312 (“It is clear that an extraordinary level of consensus is
required to conclude an Article II treaty. This might at first appear harmless, but it is not. Treaties
can be halted by those far outside of the mainstream — and can be held hostage even in the face of
broad popular support.”); John Yoo, Rational Treaties: Article II, Congressional-Executive Agreements, and
International Bargaining, 97 CORNELL L. REV. 1, 27 (2011) (explaining that ratification of an Article II
treaty can be prevented by the votes of 34 Senators, who, if they represent the 17 smallest states by
population, need only represent 7.4 percent of the U.S. population (“22.7 million people out of the
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interchangeability debate agree that this initial intuition is wrong because
of the differences in how treaties and congressional-executive agreements
may be terminated. Under current practice, the President can terminate a
treaty — at least as an international matter245 — unilaterally (at least if he
does so in accordance with treaty provisions or for a reason recognized
under international law).246 Terminating a congressional-executive
agreement, by contrast, requires a later-in-time treaty or statute and thus
the concurrence of a supermajority of the Senate or a majority of both
houses.
Oona Hathaway argues that congressional-executive agreements are
preferable to treaties because treaties “constitute a less reliable
commitment” since they are “generally . . . easier to undo than
congressional-executive agreements.”247 Similarly, John Yoo argues that
Article II treaties “send a less credible signal [than congressional-executive
agreements] about the United States’ future commitment to keeping its
promise to another nation,” and that “[b]y allowing presidential
termination of treaties, constitutional practice has reduced their utility as a
credible signal of commitment.”248 In describing treaties as signaling
greater commitment to conclude the agreement in the first place and
congressional-executive agreements as “greater signals of commitment” to
maintaining the agreement,249 Yoo laments the lack of a type of agreement
that can send credible signals of commitment at both stages.250
U.S. population of 307 million in 2009”)).
245. If the President transmits a notice of termination to other treaty partners, his unilateral
action suffices to terminate U.S. obligations under international law. If, however, the treaty was not
self-executing and was therefore incorporated into U.S. law with implementing legislation, then the
President’s termination ends only U.S. obligations to treaty partners; it does not alter the
implementing legislation, which was adopted as a statute under domestic law. See infra note 250. If the
treaty were self-executing such that there were no implementing legislation to effectuate it, the
President’s termination on the international plane would also, apparently, end treaty obligations as a
domestic matter.
246. Because ratified treaties are part of the law of the United States, U.S. CONST. art. VI, if a
President were to terminate a treaty in a way that violated the treaty itself, then arguably he would act
unconstitutionally by violating his duty to “take care that the laws be faithfully executed,” id., art. II, §
3.
247. Hathaway, supra note 3, at 1323.
248. Yoo, supra note 244, at 35.
249. Id. at 40.
250. Id. at 41. Yoo proposes that the doctrine of non-self-execution provides a partial solution to
this quandary because a non-self-executing treaty — concluded pursuant to Article II — requires the
consent of two-thirds of the Senate and then implementing legislation requires the agreement of a
majority of both Houses of Congress. He explains, “As a formal matter, terminating the treaty will
not undo the accompanying implementing statute unless Congress enacts a repealing law. This signals
commitment at the same level of intensity as a congressional-executive agreement and greater than
for a normal treaty.” Id. at 42. But what of self-executing treaties? Yoo’s non-self-executing treatyplus-implementing-legislation rationale by definition does not apply to self-executing treaties. The
“for-cause” termination RUD, however, applies to both. The RUD, therefore, allows the Senate and
President to signal their commitment to maintaining even self-executing treaties, which Yoo’s theory
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A treaty with a “for-cause” termination RUD fills that gap and helps to
remedy the asymmetry between treaties and congressional-executive
agreements. A “for-cause” termination RUD would make a treaty
terminable in the same fashion as a congressional-executive agreement —
except for instances in which the President can show “good cause” for
unilateral termination. That is, treaties with a “for-cause” termination
RUD could not be terminated absent a later-in-time statute, congressionalexecutive agreement, or treaty — all of which require congressional
participation — except when Congress has agreed ex ante that a President
has “cause” to terminate the treaty unilaterally. For these reasons,
announcing during treaty negotiations that either the President or the
Senate will add a “for-cause” termination RUD to the treaty could serve as
a useful signal to potential treaty partners about the sincerity of the U.S.
commitment to the treaty. Because the “good cause” requirement provides
some insulation from the vicissitudes of policy and political changes, treaty
partners may be more willing to make commitments to the United States if
they have the assurance that their efforts and any political costs they incur
to conclude the treaty will not be easily erased. Sophisticated potential
treaty partners might also bargain for a termination RUD as a way to
decrease the likelihood of termination.
From Congress’s perspective, the RUD could make treaties preferable
to congressional-executive agreements on one metric. In particular, the
RUD would allow Congress to specify situations in which it wants the
President to act unilaterally and immediately to terminate the treaty. There
is no comparable mechanism for congressional-executive agreements
because they can never be terminated by the President acting unilaterally.
Treaties containing a “for-cause” termination RUD, therefore, would be as
or more difficult to enact than congressional-executive agreements, but
they would also be almost as difficult to terminate, with the “almost”
encompassing situations in which Congress affirmatively wants the
President to be able to terminate unilaterally. Having an optional
mechanism to render particular treaties more difficult to terminate could
incentivize the President and Senate to consider or enter treaties more
often because the treaty termination RUD increases the likelihood that a
treaty will remain in force.251 The costs involved in treaty ratification
does not.
251. The Supreme Court’s 2008 decision in Medellin v. Texas raises perhaps countervailing
incentives. In Medellin, the Supreme Court held that the Optional Protocol to the VCCR, the UN
Charter, and the ICJ Statute were not self-executing. The majority noted that the Court has “held
treaties to be self-executing when the textual provisions indicate that the President and Senate
intended for the agreement to have domestic effect.” Medellin v. Texas, 552 U.S. 491, 519 (2008).
But the majority also explained that
neither our approach nor our cases require that a treaty provide for self-execution in so many
talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to
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appear less onerous in light of the increased permanence or, in Hathaway’s
parlance, “reliability” of the agreement.
C.
When and Why
Aside from a “for-cause” RUD’s ability to improve the credibility of a
treaty commitment, there is a separate question about when a specific
institution — the President or the Senate — would propose a “for-cause”
RUD for a particular treaty.
One reason common to both branches would be that a “for-cause”
RUD promotes efficiency by specifying ex ante the understanding of both
branches about how the treaty may be terminated. It hopefully will allow
the branches to avoid the embarrassment (both domestically and
internationally) of the litigation that attended previous unilateral
presidential terminations. The RUD may be analogized to a contract
between the Senate and the President: the President offers a contract (the
treaty), the Senate counteroffers by adding the RUD, and the President
may either accept (ratify the treaty with the RUD) or reject (not ratify the
treaty at all) the counteroffer. In essence, the “for-cause” treaty
termination RUD allows the Senate and President to contract around their
current intractable termination disagreement, avoiding the costs associated
with more tort-like litigation efforts.
The Senate, in particular, might propose a “for-cause” RUD for other
reasons. For example, the Senate might propose a “for-cause” termination
RUD in circumstances where the Senate or powerful Senators care deeply
about an issue and want to ensure continued Senate involvement in it. The
decide whether a treaty’s terms reflect a determination by the President who negotiated it and
the Senate that confirmed it that the treaty has domestic effect.
Id. at 521. Medellin has raised concerns that courts going forward will hold fewer treaties to be selfexecuting. Though its consequences may be grave in other respects, Medellin will have only an
attenuated impact, if any, on the “for-cause” termination RUD proposed here. Because Medellin
suggests — or has been interpreted by lower courts to suggest — that courts should be reluctant to
find treaties self-executing, a President who wants to be sure that a treaty is enforced will be
incentivized to seek implementing legislation to make abundantly clear that the treaty should be given
effect. If a treaty requires implementing legislation, then the President will be required to attain a
majority in both Houses of Congress. If he or she is going to need a majority in both houses for the
implementing legislation, then the burden of going to both houses for a majority vote on the treaty
itself is lessened. Thus, if a treaty requires implementing legislation, the President may be more likely
to proceed to ratify the treaty as an ex post congressional-executive agreement (which requires a
majority vote in both houses), rather than an Article II treaty (which requires a super-majority in the
Senate for ratification, plus a majority of both houses for the implementing legislation). Medellin,
therefore, could incentive Presidents to shift from the Article II process to the ex post congressionalexecutive agreement process. However, for constitutional, historical, and political reasons, there will
continue to be Article II treaties for some subjects. See supra note 29 and accompanying text; infra
note 264 and accompanying text. For example, human rights treaties and arms control treaties have
consistently been concluded through the Article II process. The “for-cause” termination reservation
will have continued relevance for those treaties that proceed through the Article II process.
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RUD would secure such involvement by allowing unilateral presidential
termination only in instances where the President could demonstrate
“good cause,” and otherwise requiring the President to return to the
Senate — in its capacity as either consent-giver to treaties or part of
bicameral approval for legislation — to change course on the issue. The
RUD would keep the policy concerns that initially underlay the treaty
under the control of both political branches. Relatedly, the Senate might
impose a RUD, even when its object is not future Senate involvement in
the issue, if the Senate wants to insulate the particular policy embodied in
the treaty from future executive policy shifts that might result from, for
example, a change in the party holding the presidency.
The reasons for presidential proposal of a termination RUD are perhaps
less obvious. The President may in some circumstances choose to restrict
his own decision set. Similar to one possible goal of the Senate, a President
may propose a RUD in order to protect a particular policy from future
shifts in executive preference, that is, the President may wish to tie — at
least a little — the hands of his or her successor. Such a restriction is, as
this Article has argued, not without effect, but neither is it terribly
burdensome. It would merely force a subsequent President to return to
Congress for ratification of another treaty or enactment of a later-in-time
statute. Of course, the subsequent President could also terminate
unilaterally despite the RUD. The RUD would simply raise the political
cost of such action.
Presidential assent to a termination RUD would not be constitutionally
problematic. True, the Supreme Court has warned that “an individual
President might find advantages in tying his own hands. But the separation
of powers does not depend on the views of individual Presidents, nor on
whether ‘the encroached-upon branch approves the encroachment.’”252
However, to the extent the President would be “tying his hands” by
accepting a “for-cause” termination RUD, he would only be doing so to
the extent that the Court has recognized to be constitutionally permissible
in the analogous Appointments Clause context.253 In addition, long
252. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010)
(citations omitted) (citing Freytag v. Commissioner, 501 U.S. 868, 879–80 (1991), and quoting New
York v. United States, 505 U.S. 144, 182 (1992)); see also New York v. United States, 505 U.S. 144,
182 (1992) (“The Constitution’s division of power among the three branches is violated where one
branch invades the territory of another, whether or not the encroached-upon branch approves the
encroachment.”); see also id. (“The constitutional authority of Congress cannot be expanded by the
‘consent’ of the governmental unit whose domain is thereby narrowed, whether that unit is the
Executive Branch or the States.”(citing Buckley v. Valeo, 424 U.S. 1, 118–37 (1976), and INS v.
Chadha, 462 U.S. 919, 944–59 (1983)).
253. The RUD would also not pose a problem under the logic of Justice Breyer’s PCAOB
dissent, which emphasized that “‘the essence of the decision in Myers was the judgment that the
Constitution prevents Congress from “draw[ing] to itself . . . the power to remove or the right to
participate in the exercise of that power.”’” Free Enter. Fund v. Pub. Co. Acctg. Oversight Bd.
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historical practice shows that Congress has often been involved in
instances of treaty termination.254 While the historical record does not
show that Senate or congressional involvement is necessary as a
constitutional matter, the long practice of congressional involvement
strongly suggests that such involvement is not constitutionally prohibited.255
The President could also desire a “for-cause” termination RUD because
it would be useful to him or her at the international level. As discussed
above, a “for-cause” RUD could be employed as a bargaining chip in
treaty negotiations to signal U.S. commitment to a particular treaty or to
exact concessions from potential treaty partners by showing that the
President is constrained by a Senate that, in exchange for greater
permanence of the treaty commitment, will demand a more favorable
agreement.256 Separately, even if the President does not propose and does
(PCAOB), 130 S. Ct. 3147, 3167 (2010) (Breyer, J., dissenting) (emphasis omitted) (alteration in
original) (quoting Morrison v. Olson, 487 U.S. 654, 686 (1988)). Thus, a RUD requiring congressional
consent for termination would pose a problem for the PCAOB dissenters because it would be an
attempt by Congress to “aggrandize” its own power, but a “for-cause” termination RUD would not be
problematic because it would not preserve a role for Congress in termination and so would not
constitute an aggrandizement of congressional power.
254. See ROLE OF THE UNITED STATES SENATE, supra note 7, at 198–207 (discussing and
classifying various instances of treaty termination on the basis of the type of congressional
involvement in the termination action).
255. See id.; ADLER, supra note 3, at 149–90 (cataloguing all of the alleged instances of U.S.
termination of treaties and concluding that there were nine instances of unilateral presidential
termination, seven at the direction of Congress, and two at the direction of the Senate);
HACKWORTH, supra note 30, at 330 (“In some cases treaties have been terminated by the President
pursuant to action by Congress. In other cases action has been taken by the President pursuant to
resolutions of the Senate alone. In still others the initiative has been taken by the President. In some
cases his action was afterwards notified to the Senate or to both Houses of Congress and approved,
on other cases it was not referred to either House. No settled rule or procedure has been followed.”
(quoting 1936 Department of State memo to President Roosevelt)). In addition, the historical
practice was compiled in briefs in Goldwater v. Carter, and the D.C. Circuit opinions discussed it
extensively. See, e.g., Goldwater v. Carter, 617 F.2d 697, 715 (D.C. Cir. 1979) (Wright, C.J., concurring
in the result) (“There has never been a single, settled method of termination.” (citations omitted)); id.
at 715 n.20 (Wright, C.J. concurring in result). In the dissenting opinion, Judge Mackinnon concluded
that “[c]ongressional participation in termination has been the overwhelming historical practice,” id.
at 723 (Mackinnon, J., dissenting), and stems from soon after the founding when Congress on July 7,
1798, passed “An Act to Declare the Treaties Heretofore Concluded with France No Longer
Obligatory on the United States,” which “pronounced the United States freed and exonerated from
Treaties of 1778 with France,” id. at 723–24 (Mackinnon, J., dissenting).
256. See Oona Hathaway, Presidential Power over International Law: Restoring the Balance, 119 YALE L.J.
140, 233–36 (2009) (drawing on the work of Thomas Schelling to argue that the legislative approval
required for ex post congressional-executive agreements can produce substantively better agreements
for the United States than sole executive agreements or ex ante congressional-executive agreements
because the President can point to the need to gain congressional acceptance of the agreement as a
limitation on his ability to make concessions); Yoo, supra note 244, at 42–43 (drawing on Schelling’s
work to argue that the greater consensus required to achieve approval by two-thirds of the Senate
means that treaties put the President in a stronger negotiating position than even congressionalexecutive agreements because Article II treaties further narrow the range of options that will be
acceptable to the United States, clarifying that the President has even less room for concessions).
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not even favor a RUD for a particular treaty, he or she may still agree to a
proposed Senate treaty termination RUD because, as discussed above,257 if
the Senate proposes a RUD, then the President may be faced with a choice
either to ratify the treaty with the RUD or to forego the treaty altogether.
With the shift in recent decades toward the prevalence of congressionalexecutive agreements at the expense of Article II treaties,258 one may
wonder what effect the introduction of a “for-cause” treaty termination
RUD would have on the prevalence of treaties versus congressionalexecutive agreements.259 Practice has shifted toward congressionalexecutive agreements presumably because they are sometimes easier to
enact than Article II treaties.260 A majority vote in both houses may be a
particularly attractive mechanism if the treaty will require implementing
legislation, which must be approved by a majority of both houses, even if
the international agreement were initially approved only by two-thirds of
the Senate. That would be the case for non-self-executing treaties.261 It is
likely, however, that in some instances and given some political
configurations, a President may view ratification by two-thirds of the
Senate as an easier hurdle to overcome.262 This may be particularly true if
an international agreement is self-executing (i.e., “become[s] part of
domestic law immediately upon ratification,” without implementing
legislation).263 Because a self-executing treaty does not require
implementing legislation, such an agreement could be enacted with the
257. See supra text accompanying notes 218–221.
258. See, e.g., Hathaway, supra note 3, at 1258–60 (showing that from 1980 to 2000, the United
States concluded 375 treaties as compared to 2744 congressional-executive agreements); id. at 1287–
88 (describing relative rise of congressional-executive agreements since the early days of the United
States); see also supra notes 24–28.
259. I have assumed throughout this Article that agreements that fall within the President’s sole
executive authority are most often concluded as sole executive agreements, without the involvement
of either house of Congress. Continuing this assumption, it stands to reason that a “for-cause” treaty
termination RUD would not affect the prevalence of this sort of agreement, meaning that any effect
of the RUD would occur in the executive’s choice between seeking to conclude an agreement as an
Article II treaty or a congressional-executive agreement.
260. Cf. Hathaway, supra note 3, at 1312 (noting that Article II treaties require “an extraordinary
level of consensus,” “can be halted by those far outside of the mainstream,” and “can be held
hostage even in the face of broad popular support”); Spiro, supra note 27, at 1004 (“[I]t is not evident
which form poses the greater constraint on presidential discretion, in other words, whether it is more
difficult to secure a two-thirds Senate majority or a simple majority of both Houses. Historical
experience — and indeed the origins of the congressional-executive agreement — would seem to
indicate that the Senate route presents the higher hurdle.”). Congressional-executive agreements are
especially easy to conclude if based on ex ante congressional approval. See Hathaway, supra note 256,
at 155–67.
261. See Hathaway, supra note 3, at 1318–20.
262. Cf. id. at 1314–15 (“This is not to say that obtaining approval of two-thirds of the Senate is
always harder than obtaining the approval of a majority of both houses of Congress. If the House
and Senate are extremely far apart ideologically — unlikely, but possible — then agreements with
majority support in one body may face tough sledding in the other.”).
263. Id. at 1317.
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participation of only the Senate and never involve the House of
Representatives at all. However, regardless of the relative political
expediency of the two options, some issues may only be addressed via
Article II treaties, though the scope of that category is debated.264
The ease of termination does not seem to have played a major role in
Presidents’ choices between concluding international agreements as Article
II treaties or congressional-executive agreements in recent decades. If ease
of termination were a major concern, one would have expected Presidents
to favor Article II treaties, which in practice have been easy for the
President to terminate, not congressional-executive agreements, which as a
domestic matter can only be terminated with legislative support. That is, of
course, contrary to recent practice, which has favored congressionalexecutive agreements. Since the current ease of terminating Article II
treaties has not increased their popularity with the executive branch,
making them more difficult to terminate seems unlikely to increase their
appeal for the executive — except perhaps for the signal of commitment a
RUD would show to treaty partners or if a President is particularly
concerned with insulating a policy against future changes.265
The introduction of a “for-cause” termination RUD, however, may
affect the Senate’s preference as between the two modes of agreementmaking. Because a “for-cause” termination RUD limits the President’s
ability unilaterally to terminate Article II treaties of which two-thirds of
Senators have approved, Senators may favor Article II treaties with a
termination RUD over congressional-executive agreements for two
reasons. First, using the Article II treaty mechanism protects the Senate’s
constitutional role in the treaty process and avoids sharing power over
international agreement formation with the House of Representatives.
Second, a termination RUD renders a treaty almost as stable of a
commitment as a congressional-executive agreement, which makes less
likely a situation in which the Senate devotes substantial time to learning
about, considering, and ratifying a treaty, only to have a subsequent
President terminate it because of a political disagreement.
The House of Representatives will likely continue to prefer
congressional-executive agreements because of the House’s ability to vote
such agreements up or down at the time of their proposal.266 However, a
264. Compare id. at 1345–49 (arguing that treaties are required only when “an international
agreement requires the federal government to exercise powers beyond those granted to Congress”),
and Hathaway, supra note 256, at 260 (same), with Yoo, supra note 27, at 821 (arguing that treaties are
required “when the federal government reaches international agreements on matters outside of
Article I, Section 8, or over which the President and Congress possess concurrent and potentially
conflicting powers”).
265. See supra note 256 and accompanying text.
266. Cf. HENKIN, supra note 6, at 195 (explaining that the House has “frequently bristled” at its
exclusion from the Article II treaty process, but has “had to find consolation in that it has some voice
2013]
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307
“for-cause” termination RUD may have an indirect benefit to the House.
If the President wishes to terminate a treaty with a “for-cause” RUD for a
reason other than “good cause,” then he or she must return to Congress
for either a subsequent treaty — which would involve only the Senate —
or subsequent legislation, which would involve both houses. A “for-cause”
termination RUD, therefore, could increase the House’s participation in
international agreements by increasing the number of issues on which the
President has to consult Congress. This is, however, an indirect and
somewhat speculative benefit to the House, and therefore is unlikely to
change the House’s general preference for congressional-executive
agreements.
To better understand the practical consequences of a “for-cause” RUD,
it would be useful for the Senate Foreign Relations Committee to
investigate the issue in the abstract, divorced from the politics of any
particular treaty. Like the hearings and reports it produced in the wake of
President Carter’s termination of the Taiwan treaty, the Foreign Relations
Committee could hold hearings and solicit views from the executive
branch, practitioners, and academics. Agreement on the use of a “forcause” termination RUD in general would smooth the path to attachment
of such a RUD to a particular treaty in the future.
CONCLUSION
For the sake of U.S. credibility abroad, treaty terminations should be a
rare event. Ratifying a treaty requires extensive deliberation and
supermajority support in the Senate; this careful consideration at the front
end should and has limited the number of instances in which the United
States terminates its treaty commitments. Even rarer have been unilateral
presidential treaty terminations. But when they have occurred, the
unilateral presidential terminations have been some of the most
controversial, and they have provoked discord not just about their policy
wisdom, but about fundamental issues of constitutional structure.
In the absence of an authoritative pronouncement by the Supreme
Court, the political branches either have to fight out the issue between
themselves or reach an accommodation that will avoid conflict in the
future. This Article has proposed a new method for taking the latter
course. A “for-cause” termination RUD would allow the Senate and the
President to contract around intractable constitutional conflict. A RUD
would be more narrowly tailored than framework legislation on the issue
of termination because it could be included in treaties where it would be
when, as often, the President must come to Congress for appropriation of funds or other
implementation of a treaty, or when the treaty-makers voluntarily leave some subjects to regulation
by Congress (e.g., international tariffs and trade)”).
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desirable and omitted where it would be an obstacle to prudent policy. The
Supreme Court’s Appointments Clause jurisprudence highlights the
constitutional problem with a RUD that would require Senate or
congressional consent prior to a termination, but also points the way
toward a constitutionally permissible alternative in a “for-cause”
termination RUD. A “for-cause” RUD has the added benefit of increasing
the reliability of U.S. treaty commitments, which renders it a useful
bargaining chip and signaling mechanism for U.S. interactions with
potential treaty partners.
If the Supreme Court’s plurality statement in Goldwater is correct that
treaty termination is a “political question,” then the best hope for a
political solution to the constitutional question about treaty termination is
a negotiated RUD at the time of treaty formation.