Unilateral Treaty Making, Or Unmaking?

Finally, we are headed towards the end of this Presidential campaign later today (we hope). One of the issues that has dominated the conversation is the relationship between the United States and other countries codified in the many international agreements we have signed. Both trade treaties, including NAFTA and the potential new TPP, and broader international agreements, like NATO, have been questioned this campaign. One candidate thinks that NAFTA is the “worst deal ever signed” while the other has been pushed to renounce previous support for the TPP.

Sidestepping the issue of whether these agreements are good or bad for the United States (there is some overview of the debate here and most economic studies find moderate positive effects), I’ve been curious what a President could actually do unilaterally as far as these international agreements are concerned. Can the President just rip up NAFTA? What checks are there on this power? I have a bit of background on foreign relations law and international trade law from some previous classes, so I’ll take a shot at thinking about this.

What’s the law on making treaties?

Treaty making in the United States is not simple. There are regular treaties, Congressional-Executive agreements, and even informal handshake deals between heads of state, and the sources of the power to make these agreements come from a number of areas. Note, a treaty (I) in the international sense is generally a term applied to all of these agreements, not just those made under the official treaty (D) domestic process outlined below.

First, the Constitution gives the President the power to make treaties – “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” US Const. Art II, § 2, cl 2. This is your traditional treaty making power. The President (and executive) negotiate and sign a treaty with another country; the Senate consents, sometimes with conditions; and the President then ratifies the treaty and it becomes international law.

Beyond the traditional treaty power, there are also a series of Executive Agreements that the government can make. The first and most similar to the treaty making power is the Congressional-Executive Agreement. This power is a combination of the general executive power to conduct foreign relations under Article II, with the legislative powers elucidated in Article I. Congress has significant Article I powers, including to regulate foreign commerce, buttressed by the necessary and proper clause. See US Const. Art I, § 8. These treaties (I) are made in the same way that normal Federal laws are made, through bicameralism and presentment. CE agreements can either be made ex post or ex ante – giving the power to the president to negotiate and sign a treaty in a particular area beforehand, or executing laws pursuant to a treaty afterwards. A key difference between CE agreements and the Article II treaty power is that CE agreements are limited in scope to those powers enumerated in Article I, while the Article II treaty power has no such limitation (one could conceivably use the treaty (D) power to pass laws outside the scope of Article I powers, notwithstanding that the current commerce clause understanding at SCOTUS is practically unbounded).

Lastly, there are Sole Executive Agreements. These have been made since the founding, and have their source of power in Article II. It is a bit unclear where this power comes from – some of it could be the expansive “sole organ” theory of foreign relations and the Hamiltonian wide ranging “vesting clause” argument – that all historically executive powers of the Crown are located within the President including broad foreign relations powers. Typically these agreements tend to relate to claims settlement, small military matters, or recognition of foreign governments (which has its own clause within Article II – the “receive ambassadors” clause). Though they are made solely by the President, they are binding treaties under international law in the same manner as treaties (D) and CE agreements.

While not technically treaties, the executive also has the power to enter into “political commitments.” These are a bit outside the scope of this post as well, as they are not binding under international law and are not treaties in the international sense. See Vienna Convention, Art. 1 (“‘Treaty’ means an international agreement concluded between States.”). These agreements use “should” type language instead of “shall” type language and are meant to be non-binding. These commitments are enforced by the actions of the parties, but not by any international legal framework. The Iran Deal concluded in the past few years is a good example of a non-binding commitment.

With this multitudinous set of ways that the United States can enter into a treaty, there is a historical gloss, created through practice, that determines which mechanism is used for what type of treaty. Legally, almost all agreements can be made with any of the methods, but in practice certain patterns emerge of what agreements use which process. For instance, important international commitments such as arms control treaties generally pass through the Senate. Additionally, there has been a sizable shift away from the traditional treaty power as time has passed.

Period Treaties Executive Agreements
1789 – 1839 60 27
1839 – 1889 215 238
1889 – 1939 524 917
1939 – 1989 702 11,698
Total 1,501 12,880

Source: My Class

It is important to note that there are also some interesting questions about what operative effect of treaties once they are signed. The Supremacy Clause states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” US Const. Art VI. Some treaties thus immediately become domestic law (if they are designed to) and are thus self-executing, while others need to be paired with legislation that adapts them and makes them operative for our legal system. The details of this are beyond the scope of what I want to talk about today.

What about withdrawing from treaties?

Some agreements are almost self-evidently possible to withdraw from. In areas where the President has unilateral power to enter an agreement, as in the case of Sole Executive Agreements and political commitments, the President also has the power to exit these agreements in the same way. Either new President could rip up the Iran Deal immediately.

It is a little more complicated for agreements made using the other two processes – either with the advice and consent of the Senate, or with overall Congressional approval.

The treaty power, described above, only gives the Senate the power to advise and consent on the making of a treaty. It is silent on the process for withdrawing from an agreement already made. By implication, one could argue that the Constitution implicitly would suggest the President should consult with the Senate on the abrogation of a duly made treaty, but typically this is not how the Constitution works. Other areas of Congressional involvement in Article II like appointments do not include the corresponding power to stop the President from firing an Executive officer. If one believes the vesting clause argument, this silence implies that the residual “executive power” to withdraw from treaties was left within the President alone due to the beginning of Article II.

The closest analogue to a pure treaty withdrawal case is found in Goldwater v. Carter, 444 U.S. 996 (1979). In that case, President Carter terminated a treaty with the Republic of China as part of his recognition of the People’s Republic of China. The termination was challenged by Congress, which made the argument that the Constitution required 2/3 Senate approval to withdraw from the treaty (the treaty included a provision to terminate after 1 year’s notice). In a plurality opinion, the court held that it was a nonjusticiable political question and that the court would not interfere in the President’s conducting of foreign relations (citing Justice Jackson’s broad conception of foreign relations power in his concurring opinion in Curtiss-Wright). The lack of a constitutional provision on treaty termination, and the fact that the President was also using the recognition power, also seemed to hold weight in the case. However, there was not a strong rule that came out of it (and later cases might hold that this is not a political question given changes in the law). This is the only real legal authority we have on the constitutional question, and supports that the President can likely terminate a treaty unilaterally (as long as their is a withdrawal provision, at least – it might be possible even if there is no explicit withdrawal provision but this is mostly a reading between the lines of the constitutional silence).

Congressional-Executive Agreements are a little more complex. In addition to being binding under international law, these agreements are also passed by Congress so have the effect of being domestic law. The President does not have the power to overrule domestic laws duly passed through Constitutional processes, and must “take care” to execute them. It seems highly unlikely that they could be terminated without Congress passing a new law removing those laws on the books, if there is no withdrawal provision.

Many CE agreements have these exit provisions that allow for exit processes exit processes. NAFTA has a provision that allows a party to withdraw 6 months after providing written notice. A withdrawal provision of a CE agreement would be part of domestic law, and could be exercised. Again, when there is a question of who can activate a withdrawal provision, the historically strong constitutional gloss on the President’s powers to conduct foreign relations seem to make him the most likely candidate to exercise the exit lever, but this is untested at law.

So what might happen with current international agreements?

Given this background, what does it mean for some of our current agreements? I’ll just consider a few that have been mentioned previously and drawn the more ire during the campaign.

  • NAFTA – The North American Free Trade Agreement between the United States, Canada, and Mexico is a Congressional-Executive agreement. It was passed with Congressional approval in 1993. Article 2205 of the agreement allows a party to withdraw 6 months after providing written notice. While it would probably be seriously litigated, there is a good case that the President could activate this provision unilaterally and pull out of the treaty without Congressional Approval. However, it is a little more complicated what would happen to actual policy – killing the NAFTA treaty would not undo the federal law that was enacted to change trade rules towards Canada and Mexico. Domestic legislation would be needed to return entirely to the pre-NAFTA status quo.
  • TPP – The Trans Partnership is still not fully complete, but it will go through fast track authority and be subject to an up or down Congressional vote. Article 30.6 provides a similar withdraw provision to NAFTA. It is likely that the President can exit the treaty if it is in place, and even easier if it still needs to be proposed to Congress to be approved.
  • Iran Deal – As a strictly informal agreement, the Iran Deal can be unquestionably terminated immediately by any President.
  • NATO – The North Atlantic Treaty Organization was formed in 1949 in a traditional treaty structure, with the Senate providing advice and consent under Article II. Interestingly, the balance of the termination power for NATO probably swings even closer to the President. Like Goldwater v. Carter, there is another enumerated power implicated – the Commander in Chief power. NATO is inherently a military alliance. It is likely the President could also unilaterally withdraw from it. NATO itself, in Article 13, confers withdrawal powers after the treaty has been in force for 20 years.
  • WTO – The World Trade Organization also has a similar withdrawal provision to NAFTA, although it is a bit more complicated in terms of overlapping agreements over time. It is possible that a President could also unilaterally withdraw.

Anyway, does not seem like a pretty picture. I might edit this later, but I wanted to finish it up before election returns start coming in. It seems as though there are some significant unilateral powers on the line tonight that I would prefer were not exercised.

Later note – not totally related, but this document from the Peterson Institute for International Economics has a great analysis of the unilateral trade powers of the executive in terms of tariffs and other trade barriers. Relevant for the Trump world, and likely to be used early on in his presidency.

Let me know your thoughts!