[923] in peace2
NYTimes.com Article: Treaties Don't Belong to Presidents Alone
daemon@ATHENA.MIT.EDU (auyeung@alum.mit.edu)
Thu Aug 30 12:20:22 2001
Reply-To: auyeung@alum.mit.edu
Errors-To: articles-email@ms1.lga2.nytimes.com
From: auyeung@alum.mit.edu
To: peace-list@mit.edu
Message-Id: <20010830190310.D4FFB15C28@email4.lga2.nytimes.com>
Date: Thu, 30 Aug 2001 12:03:10 -0700 (PDT)
This article from NYTimes.com
has been sent to you by auyeung@alum.mit.edu.
i asked if bush can unilaterally withdraw the united states from a treaty, and here is one yale expert's answer:
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Treaties Don't Belong to Presidents Alone
By BRUCE ACKERMAN
NEW HAVEN -- President Bush has told the Russians that he will
withdraw from the Antiballistic Missile Treaty, which gives both
countries the right to terminate on six months' notice. But does
the president have the constitutional authority to exercise this
power without first obtaining Congressional consent?
Presidents don't have the power to enter into treaties
unilaterally. This requires the consent of two-thirds of the
Senate, 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. Should the
termination of treaties operate any differently?
The question first came up in 1798. As war intensified in Europe,
America found itself in an entangling alliance with the French
under treaties made during our own revolution. But President John
Adams did not terminate these treaties unilaterally. He signed an
act of Congress to "Declare the Treaties Heretofore Concluded with
France No Longer Obligatory on the United States."
The next case was in 1846. As the country struggled to define its
northern boundary with Canada, President James Polk specifically
asked Congress for authority to withdraw from the Oregon Territory
Treaty with Great Britain, and Congress obliged with a joint
resolution. Cooperation of the legislative and executive branches
remained the norm, despite some exceptions, during the next 125
years.
The big change occurred in 1978, when Jimmy Carter unilaterally
terminated our mutual defense treaty with Taiwan. Senator Barry
Goldwater responded with a lawsuit, asking the Supreme Court to
maintain the traditional system of checks and balances. The court
declined to make a decision on the merits of the case. In an
opinion by Justice William Rehnquist, four justices called the
issue a political question inappropriate for judicial resolution.
Two others refused to go this far but joined the majority for other
reasons. So by a vote of 6 to 3, the court dismissed the case.
Seven new justices have since joined the court, and there is no
predicting how a new case would turn out. Only one thing is clear.
In dismissing Senator Goldwater's complaint, the court did not
endorse the doctrine of presidential unilateralism. Justice
Rehnquist expressly left the matter for resolution "by the
executive and legislative branches." The ball is now in Congress's
court. How should it respond?
First and foremost, by recognizing the seriousness of this matter.
If President Bush is allowed to terminate the ABM treaty, what is
to stop future presidents from unilaterally taking America out of
NATO or the United Nations?
The question is not whether such steps are wise, but how
democratically they should be taken. America does not enter into
treaties lightly. They are solemn commitments made after
wide-ranging democratic debate. Unilateral action by the president
does not measure up to this standard.
Unilateralism might have seemed more plausible during the cold
war. The popular imagination was full of apocalyptic scenarios
under which the nation's fate hinged on emergency action by the
president alone. These decisions did not typically involve the
termination of treaties. But with the president's finger poised on
the nuclear button, it might have seemed unrealistic for
constitutional scholars to insist on a fundamental difference
between the executive power to implement our foreign policy
commitments and the power to terminate them.
The world now looks very different. America's adversaries may
inveigh against its hegemony, but for America's friends, the
crucial question is how this country will exercise its dominance.
Will its power be wielded by a single man — unchecked by the
nation's international obligations or the control of Congress? Or
will that power be exercised under the democratic rule of law?
Barry Goldwater's warning is even more relevant today than 20
years ago. The question is whether Republicans will heed his
warning against "a dangerous precedent for executive usurpation of
Congress's historically and constitutionally based powers." Several
leading senators signed this statement that appeared in Senator
Goldwater's brief — including Orrin Hatch, Jesse Helms and Strom
Thurmond, who are still serving. They should defend Congress's
power today, as they did in the Carter era.
If they join with Democrats in raising the constitutional issue,
they will help establish a precedent that will endure long after
the ABM treaty is forgotten. Congress should proceed with a joint
resolution declaring that Mr. Bush cannot terminate treaty
obligations on his own. And if the president proceeds unilaterally,
Congress should take further steps to defend its role in foreign
policy.
We need not suppose that the president will respond by embarking
on a collision course with Congress. His father, for example, took
a different approach to constitutionally sensitive issues. When
members of Congress went to court to challenge the
constitutionality of the Persian Gulf war, President George H. W.
Bush did not proceed unilaterally. To his great credit, he
requested and received support from both houses of Congress before
making war against Saddam Hussein. This decision stands as one
precedent for the democratic control of foreign policy in the
post-cold war era. We are now in the process of creating another.
Bruce Ackerman is a professor of constitutional law at Yale and
co-author of "Is Nafta Constitutional?''
http://www.nytimes.com/2001/08/29/opinion/29ACKE.html?ex=1000198190&ei=1&en=e873e3a72ab3b89d
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