While the Constitution requires joint action by the President and Senate in making treaties, it is silent on the repository of authority to terminate treaties. The Framers certainly were aware of the fact that treaties, for a variety of reasons, might require termination, and international law provided rules and regulations to govern their repeal. James Madison and John Jay, among others, seemed to believe that treaties ought to be terminated by the President and Senate, and historically, some have. In Federalist No. 64, Jay had drawn on the structure of the treaty power, and invoked the principle of symmetrical construction in concluding that “they who make treaties may alter or cancel them.” Similarly, Madison in 1791 remarked in a letter: “That contracting parties can annul the treaty cannot, I presume be questioned, the same authority, precisely, being exercised in annulling as in making a treaty.” It seems that both Jay, the most experienced diplomat in early American history, and Madison, whose contributions to the Constitution constituted his status as the principal architect of the document, embraced the principle of symmetry: when a power is given to do an act, the power is also given to repeal the act.
There are several reasons why the Framers might have applied this symmetrical rule of interpretation to the subject of treaty termination. Nothing less than this symmetry would have reached the concerns that lay at the core of the debate on the treaty power. The various regional interests and state jealousies that necessitated a mechanical solution in which states would have an “equal voice” in the treaty power. Without it, the small states would not have agreed to confederate. It would fly in the face of these concerns, moreover, if the Framers had not intended to provide the states with a voice in the termination of treaties which, clearly, might strike at the heart of their interests. Given the intensity of the debate, it is unlikely that the states would have left the door open for another branch to ignore or sacrifice their interests. The symmetrical principle also would be consistent with the authority of the President and the Senate to affect the status of treaties at every other stage of the treaty-making process. Given the centrality of the treaty power to the formulation and conduct of American foreign policy, as conceived by the Framers, and Hamilton’s declaration to the New York Ratifying Convention that the Senate, “together with the President, are to manage all our concerns with foreign nations,” the omission of the Senate in the termination of treaties would be striking.
Perhaps the most thorough consideration devoted to the subject of treaty termination by a governmental branch occurred in a Senate debate in 1856. The question was discussed in connection with the proposed termination of the Treaty of Commerce and Navigation with Denmark of April 26, 1826. In his annual message to Congress on December 4, 1854, President Franklin Pierce stated that the required notice for the termination of treaty should be given. On March 3, 1855, the Senate, in executive session, unanimously passed such a resolution. Pursuant to the resolution, President Pierce delivered notice to the government of Denmark. Senator Charles Sumner, however, subsequently questioned the authority of the termination, because it would be equivalent to a repeal of a law by the Senate alone. The Senate Committee on Foreign Relations, to which the question was referred, issued its report on April 7, 1856, in which it maintained the right of the Senate to authorize the delivery of notice. The report stated: “the committee entertains no doubt that that where the right to terminate a treaty . . . is reserved in the treaty itself, such discretion resides in the President and Senate.” The Senate committee considered it beyond dispute that the authority to terminate a treaty was part and parcel of the authority to make a treaty.
Presidents William Howard Taft and Woodrow Wilson embraced the rule of symmetry in the termination of treaties. Taft wrote: “The abrogation of the treaty involvers the exercise of the same kind of power as the making of it.” Wilson, addressing the Merchant Marine Act, objected to any interference by Congress in the denunciation of treaties, because that would constitute an infringement of the treaty power.
But the historical record also includes repeal by unilateral presidential action and by Congress as a whole. Since Article 6 vests treaties with the same domestic status as federal statutes, treaties may be terminated by subsequent acts of Congress through the regular legislative process. The fact that the House of Representatives, which is not a part of the treaty power, can play a role in terminating, if not making, treaties, may appear to be anomalous. The same may be said of the argument for a unilateral presidential termination power, which would negate the philosophy of the Convention and the entire foreign policy design, which rejected unilateral executive authority and embraced the premise of collective decision- making.
The issue of executive authority to terminate treaties came to a head in 1979 with President Jimmy Carter’s announcement that he intended to terminate the 1954 Mutual Defense Treaty with Taiwan. The decision resulted in a lawsuit, Goldwater v. Carter (1979), in which the Supreme Court declined to reach the merits of the case and dismissed it as “nonjusticiable.” President Carter relied on the Commander in Chief Clause and the sole organ doctrine as authority for his action.
Following President Richard Nixon’s overtures to the People’s Republic of China (PRC), essentially a method toward normalization of relations, President Carter completed the process in 1978 when he withdrew recognition from the Republic of China (ROC) and granted recognition to the PRC. The act of recognition, an exercise in “conditional” recognition, required the United States to terminate the 1954 Mutual Defense Treaty with the ROC, the cornerstone of American relations with Taiwan. The treaty permitted “either” party” to terminate the pact after giving the other nation one year’s notice. The treaty did not provide which US department possessed constitutional authority to end the agreement. Members of Congress, concerned about the future of US-Taiwan relations, passed a nonbinding resolution in 1978, which stated: “It is the sense of the Congress that there should be prior consultation between the Congress and the executive branch” on any changes affecting the Mutual Defense Treaty. While Congress was out of session, President Carter officially recognized the PRC and unilaterally terminated the treaty.
Senator Harry Byrd, invoking the views of Madison, Jay, Pierce and the Senate Foreign Relations Committee declaration in 1856, successfully promoted Senate adoption of a resolution stating that it was the sense of the Senate that “approval of the United States is required to terminate any Mutual Defense Treaty between the United States and another nation.” The federal district court held that the President could not act alone in terminating treaties; rather, the authority to terminate treaties lay in the hands of the two elected branches.
But the D.C. Circuit rejected the district court’s decision. The appellate court sided with President Carter and held that the President possessed constitutional authority as Commander in Chief and under the sole organ doctrine, to terminate the Taiwan treaty. The court observed that it was unable to distinguish treaties that could be terminated by the President and those that required joint executive-legislative action. Congress, the court noted, was aware of its substantial powers to express disapproval of Carter’s act, but that it had “not take those measures.” The court drew upon the doctrine of equitable construction and concluded that if Congress was not going to exercise its powers to confront the President, that it could not ask the judiciary to do so.
The Supreme Court, acting without oral argument and within days of the scheduled termination of the Taiwan Treaty, dismissed Senator Goldwater’s complaint on grounds of non-justiciability, and the various opinions provided no answer to the question of the repository of authority to terminate treaties. A plurality, led by chief Justice William Rehnquist, held that the issue was a non-justiciable political question. Justice Lewis Powell said that the case was not ripe for review. Justices Harry Blackmun and Byron White would said the Court should have held oral argument and given the case full consideration. Justice William Brennan wrote that the President enjoyed authority to terminate treaties as an incident of his power to recognize foreign governments. The Court’s dismissal of the cases left Carter’s termination of the Taiwan Treaty intact.
President George W. Bush, in the aftermath of 9/11, asserted authority to terminate and suspend treaties as Commander in Chief and sole organ of American foreign policy. On December 13, 2001, President Bush announced the withdrawal of the United States from the Antiballistic Missile (ABM) Treaty that had been signed with the Soviet Union in 1972. Bush reasoned that the treaty undermined the ability of the United States to protect the nation from “terrorist or rogue state missile attacks.” Thirty-two members of the House of Representatives filed suit, arguing that since the Supremacy Clause classified treaties, like statutes, as the “supreme law of the Land,” that the President may not terminate treaties without congressional consent. A federal district court held, in Kucinich v. Bush (2002), that the legislators lacked standing to bring the case, which also raised a non-justiciable political question. The lawmakers did not appeal and thus the ABM Treaty was terminated.
On February 7, 2002, President Bush asserted a capacious understanding of the Commander in Chief Clause, broad enough, in the opinion of the Office of Legal Counsel (OLC), to suspend the Geneva Convention’s prohibitions on torture. His assertion, and the notorious legal memos authored by attorneys in the Bush Administration—in the OLC, the Attorney General’s Office, and the White House Counsel—unleashed an international firestorm on the question of whether the President might authorize the torture of prisoners at Abu Ghraib and Guantanamo Bay, in conflict with domestic and international law prohibitions against such conduct. It is difficult to understand why either the Commander in Chief Clause or the sole organ doctrine can be invoked as authority to terminate or suspend treaties, but they are likely to be invoked by future presidents who decide to abrogate US treaties.