Congress’ power over treaties preempts the president’s

Last March, the Senate Foreign Relations Committee favorably reported S.J. Res. 17 to preclude the president from terminating United States membership in NATO without a two-thirds Senate vote or act of Congress.

The bipartisan joint resolution easily passes constitutional muster and would begin to restore the dominant role of Congress in foreign policy contemplated by the Constitution. The resolution would be improved by further declaring that Congress, not the president, is entrusted with the responsibility for deciding how to respond to aggression against a NATO member under the Constitution and under Article 11 of the North Atlantic Treaty.

Congress, at any time, may terminate our membership in NATO by act or by concurrent or joint resolution. American empire requires a Caesar as well as the abandonment of the separation of powers to make liberty subservient to world domination. Accordingly, the Constitution is routinely tortured to accommodate unchecked executive power. 

One modest example is the bogus constitutional claim that only the president is endowed with the authority to withdraw from treaties. For starters, Congress is empowered by statute to override treaties that “can become the subject of judicial cognizance in the courts of the country,” as the United States Supreme Court held more than a century ago in The Head Money Cases.

The reasoning for the Senate ratification of treaties applies equally to treaty revocations. Alexander Hamilton, the loudest proponent of a muscular executive, explained in “The Federalist Papers: No 75” that with sole power, the president would be tempted to sell out national interests in favor of personal ambition in international relations. That temptation is present as much in negotiating as in revoking treaties.

Furthermore, the Senate is authorized to condition a treaty’s ratification upon changes in treaty language or understandings. If the latter is not forthcoming, the Senate can kill the treaty. The Lodge Reservations to the Versailles Treaty submitted by President Woodrow Wilson are illustrative and constitutionally dispositive. The reservations provided, among other things, that Congress be authorized to withdraw the United States from the treaty by “concurrent resolution.”

President Wilson, an archenemy of Sen. Henry Cabot Lodge (R-Mass.), attacked the reservations with every weapon in his arsenal. But Wilson never questioned their constitutionality, including the reservation endowing Congress with authority to give notice of withdrawal.  The Lodge Reservations were no novelty. As early as July 7, 1798, Congress enacted a law “to declare the treaties heretofore concluded with France, no longer obligatory on the United States.” The statutory language is unambiguous, and decisively shows the treaty power is subservient to Congress:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the United States are of right freed and exonerated from the stipulations of the treaties, and of the consular convention, heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.”

In a recent piece in The American Conservative, Sen. Rand Paul (R-Ky.) counter-historically argues that the president’s sole power to terminate treaties is necessitated by the need for quick action. President George W. Bush provided six months’ notice to exit the Anti-Ballistic Missile Treaty, and President Donald Trump provided the same in exiting the Intermediate-Range Nuclear Forces treaty. Six months is leisurely, not mercury footed. NATO requires 12 months’ notice to withdraw. Further, it is not self-evident that terminating treaties necessarily requires greater speed than entering them. Pearl Harbor created an immediate need for the United States to collaborate with other nations in fighting Japan and Nazi Germany.

Paul wrongly insinuates that the president acting alone is required for the quickness and unity required to negotiate a treaty. The Treaty of Ghent of 1815, which ended the War of 1812, was negotiated in part by Federalist Sen. James Bayard (Del.) The United States delegation to negotiate the United Nations Treaty featured members of the House and Senate.

Finally, Paul observes that most treaty terminations during the 20th and 21st centuries were effectuated by the president alone. But recidivism does not legalize constitutional wrongs, including multiple wars launched by presidents since at least the Korean War. The Supreme Court invalidated the legislative veto in the Immigration and Nationality Act, notwithstanding its 50-year lifespan, in Chadha v. INS in 1983 and renounced a century of federal judicial usurpation of state power in Erie Railroad Company v. Tompkins in 1936.

The Supreme Court in Myers v. United States strongly emphasized the constitutional understandings of the earliest Congresses, many of whom attended the constitutional convention. And from 1798 to at least the Lodge Reservations in 1920, Congress asserted authority to terminate treaties without challenge by presidents.  S.J. Res. 17 is a positive step against misinterpreting the Constitution today or the original document as a bow to empire.

Bruce Fein was associate deputy attorney general under President Reagan and is the author of “American Empire Before The Fall.”