Canceling a treaty

[A18]

Several methods have been (successfully) attempted, but scholars continue to argue over whether these actions were permissible.

Of course, I suppose the Congress can just pass a law undoing the enforcement clauses of a treaty, but as a technical matter this wouldn't completely undo the treaty, since the enforcement clauses can be re-activated.

[Emsworth]

It is important to note that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" (Article VI, Clause 2). Treaties are a part of the supreme Law of the Land, as much as any Act of Congress.

The President alone does not have the authority to act alone in terminating a treaty. The Constitution does not delegate to him the authority to repeal the law of the land; on the contrary, he is required to "take Care that the Laws be faithfully executed." The idea that the executive may suspend the operation of the law of the land was rejected even in England, where the executive was the Sovereign. The English Bill of Rights declared, "the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal." The same principle should apply in the United States--the President may not unilaterally suspend the law of the land.

Nor can the assertion that the President may terminate treaties with the assent of some number of Senators be justified. There is no textual basis for such a procedure. It might seem logical, but it is not ordained by the Constitution.

When the President ratifies a treaty, with the advice and consent of the Senate, that treaty becomes a part of the law of the land. Therefore, it can only be terminated by another law (a constitutional amendment, an Act of Congress, or another treaty).

[ATFFL]

I would add to Emsworth's comments that any treaty may be cancelled by any mehtod proscribed within.  If a treaty say that to leave it, all that is needed is to give warning you are leaving and then do so, with no method about how a nation is to go about it, the President may leave the treaty under his excutive power.

In other words, the plain text of the treaty can add a way to cancel it.

[MODU]

Simple majority of the Senate should be all that is required.

[A18]

Option 1

When the termination question first arose in 1793, Washington and his Cabinet, which included Hamilton and Jefferson, all embraced the view that Washington could, of his own authority, terminate a treaty with France to keep the United States neutral in the ongoing war.

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An entirely foreign situation. The idea that the sovereign could suspend laws was of course rejected in favor of Parliamentary supremacy. But the United States president is the chief negotiator of treaties.

It is true, yes, that his power to make treaties is subject to ratification by two-thirds of the Senate. Similarly, the Congress's power to legislate is subject to approval by the president, and no one asserts that the Congress may merely cancel a law without going through the presentment process.

I would argue, however, that this issue is more similar to presidential appointments. The president may appoint officers to executive positions only with Senate approval, but he may fire them at will.

[Emsworth]

When the termination question first arose in 1793, Washington and his Cabinet, which included Hamilton and Jefferson, all embraced the view that Washington could, of his own authority, terminate a treaty with France to keep the United States neutral in the ongoing war.

Ultimately, the treaty with France was not abrogated, by the President, but by Congress, which passed a law to that effect in 1798.

When the House debated the measure in the Committee of the Whole, Representative Samuel Sewall said, "It is certainly a novel doctrine to pass a law declaring a treaty void; but the necessity arose from the peculiar situation of this country. In most countries it is in the power of the Chief Magistrate to suspend a treaty whenever he thinks proper; here only Congress has that power.

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The treaty making process is similar to the appointment in only one respect: it is performed by the President with the advice and consent of the Senate. There is, however, one very crucial difference: a treaty is a part of the law of the land, but an appointment is not.

The President alone cannot repeal any part of the law of the land, whether a constitutional amendment, an Act of Congress, or a treaty. No such power is committed to him.

[A18]

That was the first time a treaty was actually canceled, but as I mentioned, there was a consensus between some very different people that the president could do this during the Washington Administration.

When Adams and the Congress nullified the treaty, there was little discussion of the constitutional ramifications.

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Again, I don't think that's a fair assessment of the situation. The Constitution does make the president the chief arbitrator of treaties. I don't see why it matters, then, that a treaty is part of "the law of the land." I think the implications here are the same as with presidential appointments.

[Emsworth]

That was the first time a treaty was actually canceled, but as I mentioned, there was a consensus between some very different people that the president could do this during the Washington Administration.

At the very least, however, one can say that the contemporary interpretation was somewhat unclear.

I would analogize the issue not with the appointment power, but with the congressional lawmaking power. The specific provision in the Constitution is that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

Thus, the actual and strict words of the Constitution are merely that the President has the power to "make Treaties," not that he is the "chief negotiator" or "chief arbitrator." (Although this is undoubtedly the case, this is not the language used by the Constitution.) The power to "make Treaties" is in a sense comparable to the congressional power to "make laws."

Section 8 of Article I refers to the power to "make Rules concerning Captures on Land and Water," to "make Rules for the Government and Regulation of the land and naval Forces," and to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Article III refers to "such Regulations as the Congress shall make," and Article IV to the congressional power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The First Amendment provides that "Congress shall make no law [etc.]"

That the treaty power is closer to the congressional power to pass laws than the presidential power to make appointments is made somewhat more apparent by the supremacy clause, as well as by Article III: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties..."

On the whole, therefore, I would say that just as Congress "makes laws," so does the President "make treaties." Just as Congress alone cannot unmake its laws, so too is the President forbidden from unilaterally unmaking treaties. I do not believe that the power of repealing a part of the law of the land vests in the President by such a questionable implication.

[CARLHAYDEN]

I would add to Emsworth's comments that any treaty may be cancelled by any mehtod proscribed within.  If a treaty say that to leave it, all that is needed is to give warning you are leaving and then do so, with no method about how a nation is to go about it, the President may leave the treaty under his excutive power.

In other words, the plain text of the treaty can add a way to cancel it.

Yours is the best post on the subject to date, but, a key point is missing.

What happens in a simple bilateral treaty when one of the signators ceases to exist as a nation-state?  I maintain that such a treaty is from that point on, not binding.

[A18]

At the very least, however, one can say that the contemporary interpretation was somewhat unclear.

I concede as much, but that touches on one almost undeniable truth: the founding generation was far more concerned with checks on entering into treaties, than rescinding one.

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The point to including treaties in the supremacy clause was not to convey anything specific about the way they are to be made or withdrawn, but rather to require that states abide by them.