The US constitution provided for the separation of powers to save us from autocrats. But the legislative branch undermined that.
By Russell Feingold
During this administration, everyone has to be alert and watching for potential misuses or abuses of power. Unfortunately, due to decades of executive aggrandizement and congressional acquiescence — coupled with judicial timidity — the ability to unilaterally withdraw the United States from every last treaty the Senate has ever ratified has been left solely in the hands of President Donald Trump.
So one of these mornings, Trump could well get up very early, issue a series of angry tweets and then proceed to issue an order withdrawing the United States from the United Nations. And, though it took a 1945 vote in the Senate to allow President Harry Truman to ratify the U.N. Charter, the current weight of legal opinion holds that President Donald Trump has the power to withdraw the U.S. from this or any treaty without similar consultation with the legislative branch of government.
(And, if this reminds you of what has happened to our constitution's exclusive grant to Congress of the power to declare war, you would be right.)
During the 20th and early 21st centuries, the view that the power to withdraw from ratified treaties rests solely within the executive branch has gradually become considered settled by too many scholars, though it seemingly contravenes the founders' own understanding of the Constitution.
No treaty can be ratified without a two-thirds vote in the Senate. And once ratified, a treaty becomes part of the "supreme law of the land" — which should logically mean that it could only be undone by Congress and the President, or at least by a vote of the Senate.
There were few comments by the founders on the issue of withdrawal, but arguably the clearest comes via Thomas Jefferson. He wrote in his manual of parliamentary practice, which he composed while presiding over the Senate: "Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded."
Unfortunately, that is not what is "understood" today. When President George W. Bush unilaterally withdrew the U.S. from the Anti-Ballistic Missile Treaty in 2002, only a few members of Congress protested; Congress as a whole failed to insist on a vote. Several members of the House then sued to force a vote (an effort I was prevented from joining by the Senate Ethics Committee). That lawsuit was rejected by the courts, because Congress had failed adequately to assert its powers and because the judgeruled "issues concerning treaties are largely political questions best left to the political branches of the government, not the courts, for resolution."
That failure to act to assert our constitutional prerogative now hands an erratic and often vengeful president the power to undo crucial international agreements.
Considering Trump's recent outbursts at the U.N., where he threatened to "totally destroy" North Korea, and his pique over opposition to his decision to recognize Jerusalem as Israel's capital (U.N. Ambassador Nikki Haley wrote a letter to dozens of UN member nations stating that, "The president will be watching this vote carefully and has requested I report back on those countries who voted against us"), it's easy to imagine a scenario that could prompt him to yank us from the organization.
And it's not just withdrawal from the U.N. that should concern us: the NATO Treaty (which established organization), and the New START Treaty (in which the U.S. and Russia agreed to reduce our nuclear arsenals)— just to mention two — are crucial to various aspects of the post-war American foreign policy that has helped ensure our national security and prosperity.
There have been relatively few treaties considered by Congress in recent decades, in part because executive agreements and regular legislation have become a more popular way to establish various forms of relations with other countries. And many others were negotiated by various administrations but never ratified by the Senate, largely because of the high bar for approval: The SALT II agreement (another nuclear disarmament treaty with the then-Soviet Union), the Law of the Sea Convention (which was intended to govern the use of the world's oceans), the UN's Convention to Eliminate All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities and the Kyoto Protocol (which sets greenhouse gas emissions reduction targets to mitigate climate change) have all been sidelined by partisanship.
Should any of those, or any future, treaties make it through the Senate gauntlet, it doesn't seem possible that the founders' intent was that any subsequent president could remove us from them whenever he or she felt like it.
A Trump pull-out from the UN may not remove us from all of our obligations and opportunities within the organization, but it would surely be detrimental to our influence within it and our standing internationally. Congress must be ready to vote in opposition to any such unilateral withdrawal and, if need be, refer the question to the Supreme Court.
Hopefully, if that happens, the justices will not shirk their responsibility to uphold the constitution. The rule of law and international stability demand nothing less.
Russell Feingold is the Martin R. Flug visiting professor in the practice of law at Yale Law School. He served as a U.S. senator from Wisconsin from 1993 to 2011, and a Wisconsin state senator from 1983 to 1993. From 2013 to 2015, he served as the United States special envoy to the Great Lakes Region of Africa and the Democratic Republic of the Congo.
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