Search This Blog

Saturday, December 30, 2023

Withdrawing from a Treaty

 Gary J. Schmitt at AEI:

Arguments have been made that Congress must approve such a decision or that the Senate, given its role in sanctioning a treaty, should also have a say in terminating that pact. Yet presidents acted on their own in the two most recent decisions to end America’s adherence to a security-related treaty. In late 1979, President Jimmy Carter announced that the 1954 security accord with the Republic of China (Taiwan) would end on January 1, 1980. And then, in December 2001, not long after 9/11, George W. Bush announced that the U.S. was pulling out of the Anti-Ballistic Missile Treaty.

Carter’s decision did not go unchallenged. Republican Sen. Barry Goldwater filed a lawsuit in federal court arguing that treaty termination required Senate concurrence. Eventually, the case made it to the Supreme Court, where six of the nine justices ruled that it should be dismissed, with no hearing or oral arguments required. Justice William Rehnquist, concurring with that judgment, issued a statement along with three other justices that said the issue at hand was a political question—a dispute between Congress and the president over how foreign affairs should be conducted—and, therefore, not something for the court to decide. It was up to Congress to defend its claimed prerogatives. Justice Lewis Powell also concurred in the decision, but argued in a separate statement that the case might in fact have been one for the court to hear if the Congress had acted as a whole by passing a resolution formally opposing Carter’s decision.

Goldwater v. Carter (1979) undoubtedly influenced how Congress reacted to Bush’s decision to pull out of the ABM Treaty two decades later. While there were certainly Democrats who criticized the decision, the party itself was in the minority in the House and held a slim, one-vote margin in the Senate. With the precedent of Goldwater v. Carter, individual members stood no chance of contesting the White House in court and, just as importantly, they lacked the political wherewithal to challenge the decision by passing a resolution that the court might have then taken cognizance of.