Donald Trump withdrew from the Paris Agreement without asking for congressional agreement—though there’s little doubt the Republican Congress would have urged him to jump right off the climate change cliff. Trump also didn’t ask for any permission on the Iran deal, which might have had a bit more trouble getting approval even though it was a favorite talking point on the far right.
But when it comes to summarily sliding the United States out of the agreement on Intermediate-Range Nuclear Forces (INF), inked during a meeting between Ronald Reagan and Mikhail Gorbachev more than three decades ago, Trump’s solo word may not be law. Because, as the Bulletin of the Atomic Scientists points out, the INF is not merely an executive agreement or a moral obligation,p: It’s a full-on congressionally-approved treaty. When a treaty has been submitted to Congress and approved by a majority, can it be nixed from the White House without seeking similar approval?
The answer is a solid maybe. The Constitution offers multiple rules on getting into a treaty, but doesn’t define the conditions for getting out. But there is plenty of precedent, going right back to the start.
The first treaties terminated by the United States were its 1778 alliance and commercial treaty with France—both of which were ended in 1798 by an act of Congress.
So while it may be possible to argue the constitutionality of having the executive squelch a treaty on his own, that is not the way the Congress handled it at a time barely a decade after the Constitution was signed and when many of the men who signed it were still in government.
But Trump wouldn’t be the first to try and end a treaty on his own. Others have done so, including Jimmy Carter who in 1978 pulled the United States out of a mutual defense treaty with Taiwan. What Congress did then is something Congress could do now: they sued him.
It wasn’t just any congressman who launched the suit against Carter: It was former presidential candidate and all-around right-wing hero Barry Goldwater. But after kicking its way through the courts with decisions going both ways, Goldwater v. Carter hit the Supreme Court in 1979, and the court … sidestepped. It declared the dispute a political question where the court had no say. In the specific case of Taiwan, the court ruling meant that if Congress wanted to stop Carter from dropping the alliance, which was a critical factor in negotiations with China, it had to pass a bill to make him stop. But on the broader question of what it takes to end a treaty, this non-answer seems like a missed opportunity for the Supreme Court to address an issue whose boundaries are still extremely murky.
In the case that might be most like that of the INF, George W. Bush pulled out of the Anti-Ballistic Missile treaty in 2002. As in the Carter case, that resulted in a lawsuit from Congress, this time filed by Dennis Kucinich and 31 other members. But it ran almost immediately into the previous ruling, and was once again declared a political question before reaching the Supreme Court. Which … is frustrating.
In both the Taiwan and ABM cases, what was missing from the congressional side was any real chance that a veto-proof majority would overrule the action, making the suits the only available action. No one should be asking the Court for a ruling on a treaty, but that’s not the question here. The question is: What’s the constitutional method for ending a treaty? And that’s exactly the sort of question that the Supreme Court should address.
In the case of the INF, not only does it seem impossible that two-thirds of Congress could be mobilized to push back against Trump, it’s extremely unlikely that even a majority could be found in the Senate. In 2017, the Republican-controlled Senate passed legislation that specifically ordered the development of a new missile that was in direct violation of the INF. Senate Majority Leader Mitch McConnell isn’t about to complain that Trump is treading on Congress’ authority. Instead, he is cheering it on.
About the best that can be hoped for is that members of Congress take to the courts for a third time. Considering previous rulings, such a case would be unlikely to receive anything but a swift dismissal, but there’s the chance it might make its way to the Supreme Court again. And in that case, maybe the country would get some basis for how treaties are supposed to end. Even if we don’t like it.
But Vladimir Putin likes it. He likes it very much.