On treaties, Congress has substantial powers—if it claims them

By Kurt Couchman

President Trump’s threats to remove the United States from trade treaties and international organizations are sowing unease at home and around the world.

President Trump already withdrew America from the Trans-Pacific Partnership (TPP) process. He has threatened to exit the North American Free Trade Agreement (NAFTA) and the (South) Korea-U.S. Free Trade Agreement (KORUS). He ended U.S. participation in the United Nations Economic, Scientific, and Cultural Organization (UNESCO).

Even Congress, normally deferential on foreign affairs, is rousing itself. The Senate Foreign Relations Committee recently held a hearing to examine presidential and congressional authorities over international accords. The House Committee on Foreign Affairs has considered the future of NAFTA.

Regardless of the merits of any particular agreement, the decision to enter the Unites States into—or withdraw it from—an accord shouldn’t belong to one person.

Treaties are agreements between countries. But they blend legislative and executive functions, so both branches must be involved. The Constitution gives the president the power "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur."

Alexander Hamilton explained in Federalist #75 that the president has no unilateral treaty powers: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”

The Constitution is silent, however, on ending or exiting a treaty. Federalist #75 is clear that Congress should have a role, but nowhere is the process laid out.

The courts have not clarified the issue. In 1978, President Jimmy Carter withdrew the U.S. from the 1954 defense treaty with Taiwan when diplomatic recognition shifted to the People’s Republic of China. Then Sen. Barry Goldwater (R-AZ) and other members of Congress sued because the Senate had not approved the withdrawal. The Supreme Court resolved the case but not the policy question when it ordered the district court to dismiss Goldwater v. Carter.

In 2001, President George W. Bush withdrew from the Anti-Ballistic Missile Treaty of 1972. Thirty-two House members sued in Kucinich v. Bush. The court declined to take the case, dismissing it without ruling on the central question. By not resolving the separation of powers issue, the courts let Mr. Bush’s and Mr. Carter’s precedents stand.

The courts ruled correctly, of course. Even if the Constitution is ambiguous and Congress hasn’t legislated, the courts still don’t have legislative powers.

As a result, unilateral authority is in the hands of an anti-globalist, populist, nationalist president. President Trump claims the power to withdraw the United States from any treaty he doesn’t like. And Congress has little chance of stopping him on a case-by-case basis.

Fortunately, Congress has the authority to settle the structural issue.

The Constitution empowers Congress to make Laws “carrying into execution” all powers of the federal government. This includes treaty powers. Standard congressional majorities can pass implementing legislation.

The outline is clear: The president would “recommend to [Congress’] Consideration such Measures as he shall judge necessary and expedient” for treaties. The Senate would decide whether to accept or reject his recommendations.

America’s extensive treaty commitments are overdue for review, but the Senate tends toward inaction. Expedited consideration might make sense.

An important question concerns the proper threshold. Ratification requires two-thirds, which assures consensus. But should the converse, of no longer being bound by a treaty, also require two-thirds?

Uncertainty could result if treaties had to be reaffirmed by two-thirds when challenged. On the other hand, a nation of free people should not be bound to another country with the support of barely more than a third of senators. Furthermore, Congress can pass regular legislation that would violate treaty terms. A simple majority may be the most appropriate balance.

The House would still have no formal role, although members could still try to persuade. Legislation must also clarify that unilateral presidential action does not constitute an abrogation, and that the misuse of executive discretion resulting in noncompliance with a treaty (except pursuant to duly-passed domestic law) is an illegal act.

President Trump is right to question the continued benefits of long-standing international agreements. America shouldn’t collect allies and treaties like baseball cards. If they advance our security and prosperity, let’s keep them. If they don’t advance our interests, they should be reformed, replaced, or rescinded.

Yet treaties powers are shared between the president and the Senate. The Constitution is silent about the key aspect of leaving them, however, and the courts have rightly declined to act as legislators. Congress alone cultivates statutory law, including filling in the gaps in the Constitution.

Resolving these questions can unify much of Congress. Defenders of U.S. treaty and trade commitments, supporters of international organizations, advocates of Congress’ Article I powers, and critics of executive overreach each have a stake. As for advocates of expansive presidential powers, Senate support for updating our international commitments would boost the legitimacy and durability of changes.

Kurt Couchman is an economist and the vice president of public policy at Defense Priorities. He previously served as a policy expert in congressional offices, most recently as a legislative director for a Republican member of the House of Representatives. Follow him on Twitter @KurtCouchman.

This piece was originally published by The Hill on January 15, 2018. Read more HERE