[Congressional Record Volume 148, Number 41 (Monday, April 15, 2002)]
[Senate]
[Pages S2640-S2642]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRESIDENTIAL WITHDRAWAL FROM ABM TREATY
Mr. KYL. Mr. President, Secretary Powell at this very moment in the
Middle East is striving mightily to effect a cease fire and develop
more support for our war on terror, especially to the extent we may
have to take military action against the country of Iraq.
It is in that context that I discuss today another way the
administration has prepared to deal specifically with the threat from
Iraq and other countries similarly situated in the Middle East.
On December 13, following a period of high-level negotiations,
President Bush notified Russia of his intent to withdraw the United
States from the 1972 Anti-Ballistic Missile Treaty. Since then, I have
addressed the Senate on the military justification for the President's
decision and the question of how much a national ballistic missile
defense system will cost. Today, I would like to discuss the
President's constitutional authority to unilaterally exercise the right
of withdrawal without the consent of the Senate or Congress as a whole.
The President withdrew the United States from the treaty pursuant to
Article XV, which allows either party to withdraw upon 6 months' notice
if it determines that ``extraordinary events . . . have jeopardized its
supreme interests.'' I believe his action is a proper exercise of the
authority of the chief executive to terminate a formal treaty to which
the Senate had given its consent pursuant to Article II, Section 2, of
the Constitution.
The question of Presidential authority is illustrated by the
following assertion in a New York Times editorial by Bruce Ackerman, a
professor of constitutional law at Yale:
Presidents don't have the power to enter into treaties
unilaterally . . . and once a treaty enters into force, the
Constitution makes it part of the ``supreme law of the land''
just like a statute. Presidents can't terminate statutes they
don't like. They must persuade both houses of Congress to
join in a repeal.
While the Constitution is silent with respect to treaty withdrawal,
the preponderance of writings and opinions on this subject strongly
suggests that the Framers intended for the authority to be vested in
the President. Article II, Section 1 of the Constitution declares that
the ``executive power shall be vested in the President.'' And Article
II, Section 2 makes clear that the President ``shall be Commander-in-
Chief,'' that he shall appoint, with the advice and consent of the
Senate, and receive ambassadors, and that he ``shall have power, by and
with the advice and consent of the Senate, to make treaties.''
The Constitution approaches differently the duties of Congress,
giving the legislative branch--in Article I's Vesting Clause--only the
powers ``herein granted.'' The difference in language indicates that
Congress' legislative powers are limited to the list enumerated in
Article I, Section 8, while the President's powers include inherent
executive authorities that are unenumerated in the Constitution. Thus,
any ambiguities in the allocation of a power that is executive in
nature--particularly in foreign affairs--should be resolved in favor of
the executive branch. As James Madison once wrote in a letter to a
friend, ``the Executive power being in general terms vested in the
President, all power of an Executive nature not particularly taken away
must belong to that department . . .''
The treaty clause's location in Article II clearly implies that
treaty power is an executive one. The Senate's role in making treaties
is merely a check on the President's otherwise plenary power--hence the
absence of any mention of treaty-making power in Article I, Section 8.
Treaty withdrawal remains an unenumerated power--one that must
logically fall within the President's general executive power.
A careful reading of the writings of the Framers strongly also
confirms that they viewed treaties differently than domestic law, and
that, while they desired to put more authority over domestic affairs in
the hands of the elected legislative representatives, they believed
that the conduct of foreign affairs lay primarily with the President.
As Secretary of State Thomas Jefferson observed during the first
Washington Administration, ``The constitution has divided the powers of
government into three branches [and] has declared that `the executive
powers shall be vested in the president,' submitting only special
articles of it to a negative by the Senate.'' Due to this structure,
Jefferson continued, ``The transaction of business with foreign nations
is executive altogether; it belongs, then, to the head of that
department, except as to such portions of it as are specially submitted
to the Senate. Exceptions are to be construed strictly.''
In the same vein is the history of Supreme Court rulings on the
subject of presidential powers. The Court has concluded that the
President has the leading constitutional role in managing the nation's
foreign relations. As one commentator, David Scheffer, noted in the
Harvard International Law Journal, ``Constitutional history confirms
time and again that in testing [the limits of presidential plenary
powers], the courts have deferred to the President's foreign relations
powers when the constitution fails to enumerate specific powers to
Congress.''
In Harlow v. Fitzgerald, the Supreme Court observed that
responsibility for the conduct of foreign affairs and for protecting
the national security are `` `central' Presidential domains.''
Similarly, in the Department of Navy v. Egan, the Supreme Court ``
`recognized the generally accepted view that foreign policy [is] the
province and responsibility of the Executive.' ''
The case most frequently cited as confirming that the President is
the supreme authority in the Nation's conduct of foreign affairs is the
Supreme Court's 1936 decision in the United States v. Curtiss-Wright
Corp. In that case, the Court reversed the decision of the district
court, and affirmed the constitutionality of President Franklin
Roosevelt's declaration of an arms embargo against both sides in the
conflict between Peru and Bolivia over the Chaco region. As stated in
the opinion issued by Justice Sutherland, the power to conduct foreign
affairs is ``the very delicate, plenary and exclusive power of the
President as the sole organ of the federal government in the field of
international relations--a power which does not require for its
exercise an act of Congress.''
Treaties represent a central tool for the successful conduct of
foreign policy. Such international agreements typically reflect the
circumstances of particular security or economic conditions which may,
of course, change
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over time. As such, in the course of protecting national security,
recognizing foreign governments, or pursuing diplomatic objectives, a
President may determine that it is necessary to terminate specific
United States' treaty obligations.
That is precisely the subject we are facing with respect to the
President's withdrawal from the 1972 ABM treaty.
As the D.C. Circuit stated in Goldwater v. Carter, ``The
determination of the conduct of the United States in regard to treaties
is an instance of what has broadly been called `the foreign affairs
power' of the President. . . . That status is not confined to the
service of the President as a channel of communication . . . but
embraces an active policy determination as to the conduct of the United
States in regard to a treaty in response to numerous problems and
circumstances as they arise.''
For these reasons, other unenumerated treaty powers have been
understood to rest within the plenary presidential authority. For
example, the President alone decides whether to negotiate an
international agreement, and also controls the subject, course, and
scope of negotiations. Additionally, the President has the sole
discretion whether to sign a treaty and whether to submit a treaty to
the Senate for advice and consent. The President may even choose not to
ratify a treaty after the Senate has approved it. Vesting the power to
terminate a treaty in the President is consistent with the accepted
view that other such unenumerated powers are the responsibility of the
President.
Furthermore, the executive branch has long maintained that it has the
power to terminate treaties unilaterally. The Justice Department has
argued that, ``Just as the Senate or Congress cannot bind the United
States to a treaty without the President's active participation and
approval, they cannot continue a treaty commitment that the President
has determined is contrary to the security or diplomatic interests of
the United States and is terminable under international law.'' The
State Department, in a 1978 memorandum advising that the President had
the authority under the Constitution to terminate the Mutual Defense
Treaty without Congressional or Senate action, opined that, ``The
President's constitutional power to give notice of termination provided
for by the terms of a treaty derives from the President's authority and
responsibility as chief executive to conduct the nation's foreign
affairs and execute the laws.''
One of the most well-known instances of treaty termination in recent
history is former President Carter's decision to withdraw the United
States from the Mutual Defense Treaty of 1954 between the U.S. and
Taiwan in order to normalize relations with the People's Republic of
China. That decision resulted in an extensive debate in the Senate and
among scholars as to the President's constitutional authority to
withdraw the United States from a treaty without the approval of the
Senate or Congress. Several members of Congress, including former
Arizona Senator Barry Goldwater, filed suit against President Carter,
and the full Senate addressed treaty termination in a series of
legislation that was debated by a number of my distinguished colleagues
who remain in this body today.
Senator Kennedy wrote a persuasive article for Policy Review in 1979
strongly supporting the notion that treaty termination is an executive
power not requiring legislative consent. In that article, he argued:
Article 10 of the treaty in question [the Mutual Defense
Treaty] provided for its termination. In giving notice of an
intent to terminate the treaty pursuant to that provision,
the President was not violating the treaty but acting
according to its terms--terms that were approved by the
Senate when it consented to the treaty.
As Charles C. Hyde, former Legal Advisor to the Department
of State, put it in his leading treatise: ``The President is
not believed . . . to lack authority to denounce, in
pursuance of its terms, a treaty to which the United States
is a party, without legislative approval. In taking such
action, he is merely exercising in behalf of the nation a
privilege already conferred upon it by the agreement'' . . .
At the time that each treaty is made and submitted [for the
advice and consent of the Senate, Senators] should seek to
condition Senate approval upon acceptance of the Senate's
participation in its termination. The Senate might have done
so when it consented to the 1954 defense treaty with the
Republic of China, but it did not. Any attempt, at this
point, to invalidate the President's notice of intention to
terminate that treaty is not only unwise . . . but also
without legal foundation.
As with the 1954 treaty, the ABM Treaty contains a withdrawal
clause--article XV(2)--for extraordinary events. That clause states:
Each party shall, in exercising its national sovereignty,
have the right to withdraw from this Treaty if it decides
that extraordinary events related to the subject matter of
this Treaty have jeopardized its supreme interests. It shall
give notice of its decision to the other Party six months
prior to withdrawal from the Treaty.
That, of course, is precisely what President Bush did.
The President was fully justified in using that withdrawal clause
unilaterally. Just as the Senate did not condition its approval of the
Mutual Defense Treaty with Taiwan upon its participation in termination
of that treaty, the Senate also did not place such a condition upon its
approval of the ABM Treaty.
Senator Goldwater's suit over the President's termination of the
Mutual Defense Treaty with Taiwan led to conflicting decisions by the
trial and appellate courts and an eventual non-decision by the Supreme
Court. The D.C. Circuit had reversed the trial court's decision, and
upheld President Carter's authority to terminate the Mutual Defense
Treaty, rejecting the arguments that (1) the advice and consent role of
the Senate in making treaties implies a similar role in termination,
and (2) that, because a treaty is part of the law of the land, a
minimum of a statute is required to terminate it.
The Circuit Court pointed out that the President is responsible for
determining whether a treaty has been breached by another party,
whether a treaty is no longer viable because of changed circumstances,
and even whether to ratify a treaty after the Senate has given its
advice and consent. The court said that, ``In contrast to the lawmaking
power, the constitutional initiative in the treaty-making field is in
the President, not Congress.'' Moreover, the court stated that, to
require Senate or Congressional consent to terminate a treaty 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.'' It would, therefore, deny the President the authority and
flexibility ``necessary to conduct our foreign policy in a rational and
effective manner.''
Finally, the court determined that ``of central significance'' was
that the Mutual Defense Treaty--as my colleague Senator Kennedy had
also pointed out in his article--contains a termination clause that
``is without conditions,'' and spells out no role for either the Senate
or Congress. As a consequence, the court concluded, the power to act
under that clause ``devolves upon the President.'' The facts are the
same with the 1972 ABM Treaty, and, therefore, the law must also be
consistent.
I should note that President Carter did not stand alone in exercising
his power to unilaterally terminate a treaty. According to David Gray
Adler's The Constitution and the Termination of Treaties, unilateral
executive termination has been practiced since the Lincoln
Administration, and seems to be the most commonly used method of
terminating treaties. And as the D.C. Circuit stated in Goldwater v.
Carter,
It is not without significance that out of all of the
historical precedents brought to our attention, in no
situation has a treaty been continued over the opposition of
the President.
It is interesting to me members of the Senate have also raised the
issue of the President's authority to withdraw from a particular treaty
without legislative consent in the context of debating the resolution
of ratification of a treaty. During the Senate's consideration of the
Comprehensive Test Ban Treaty, CTBT, proponents of the CTBT argued that
Safeguard F of that treaty meant that the President alone could
exercise the right of withdrawal from the treaty. Safeguard F states:
If the President of the United States is informed by the
Secretary of Defense and the Secretary of Energy--advised by
the Nuclear Weapons Council, the Directors of DOE's nuclear
weapons laboratories and the Commander of the U.S. Strategic
Command--
[[Page S2642]]
that a high level of confidence in the safety or reliability
of a nuclear weapon type which the two Secretaries consider
to be critical to our nuclear deterrent could no longer be
certified, the President, in consultation with Congress,
would be prepared to withdraw from the CTBT under the
standard ``supreme national interests'' clause in order to
conduct whatever testing might be required.
As Senator Biden stated on the Senate floor on October 12, 1999:
They have to assume, then, that the President, knowing that
this stockpile is no longer reliable, would look at the U.S.
Congress and say: I, President whomever, next President,
certify that we can rely on our stockpile. They either have
to assume that or they have to assume their concern about our
stockpile is not a problem because the moment the President
is told that, he has to call us and tell us and withdraw from
the treaty . . .
Senator Boxer likewise argued that withdrawal from the treaty would
be exclusively the responsibility of the President during her remarks
on the Senate floor on October 13, 1999, stating,
If our stockpile is not safe and reliable, the President
will withdraw from the treaty. There doesn't have to be a
Senate vote. It's not going to get bogged down in the rules
of the Senate. If there is a supreme national interest in
withdrawing from the treaty, we will withdraw.
Indeed, even some Senators openly opposed to the President's decision
to withdraw the United States from the ABM Treaty have recognized his
constitutional authority to make the decision without the consent of
the Senate or Congress. In December 2001, Inside Missile Defense quoted
Senator Daschle on the subject:
It's my understanding that the President has the unilateral
authority to make this decision. But we are researching just
what specific legal options the Congress has, and we'll have
to say more about that later . . . at this point, we're very
limited in what options we have legislatively.
Similarly, according to a July 2001 article in the New York Times,
Senator Levin stated,
The president alone has the right to withdraw from a
treaty, but Congress has the heavy responsibility of
determining whether or not to appropriate the funds for
activities that conflict with a treaty.
My own view is that while it would be anomalous for Congress to
withhold funding for a national missile defense system, Senator Levin
is correct on both counts: withdrawal is the President's decision and
any funding for anything must be through Congressional appropriation.
In conclusion, I believe history will judge President Bush's notice
of withdrawal from the 1972 ABM Treaty as equal in importance to his
historic decision to commit the United States to the war on terrorism.
With the withdrawal decision, he has paved the way for the United
States to work aggressively toward deployment of defenses to protect
the American people against the growing threat of a ballistic missile
attack.
In announcing his intent to withdraw the United States from the
treaty, President Bush acted in accordance with changed international
circumstances and our national interests--reestablishing the important
doctrine of ``peace through strength'' as the basis for U.S. security
policy. And he acted within the authority granted by the Constitution
to the Chief Executive.
I commend the President for arriving at a very difficult decision. As
we all know, the role of Congress has not ended with our withdrawal
from the treaty--the annual budget process can be used to either
undermine or support the President's decision, a matter I will address
in a future presentation. But for now, an essential first step in
moving forward to protect the United States against a serious threat
has finally been taken, and the President should be commended for his
action.
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