Originally Published in Legal Times

The president’s plan to terminate the Anti-Ballistic Missile Treaty with Russia was always a bad idea. It has only gotten worse with recent revelations that the Pentagon has submitted to Congress a document calling for contingency plans for the use of nuclear weapons against Russia, China, and a number of other countries. Unfortunately most members of Congress, including those opposed to termination, are under the impression that this is a done deal which they are powerless to reverse. But there is still time for Congress to act as a body before the president’s decision becomes effective next June — as a historical precedent illustrates.

In December 1978, President Jimmy Carter decided to terminate the Mutual Defense Treaty of 1954 between the United States and Taiwan. Court challenges to his authority to do so without congressional consent went all the way to the Supreme Court. It is generally believed that Congress “lost” this case, Goldwater v. Carter (1979), and that the resulting Supreme Court decision precludes further challenges to unilateral presidential treaty termination. In fact, Goldwater embodies no such obstacle — and indeed suggests a course of action that Congress might follow, thus proving that its role in treaty termination is still very much alive. As then-Justice William Rehnquist, quoting Chief Judge J. Skelly Wright of the D.C. Circuit, stated in his Goldwater concurrence, “Congress has a variety of powerful tools for influencing foreign policy decisions that bear on treaty matters.”

In the first stage of the Goldwater constitutional debate between 24 members of Congress and President Carter, Judge Oliver Gasch of the U.S. District Court for the District of Columbia found that the plaintiffs had standing to invoke the aid of the judiciary, and that their suit was not barred by the political question doctrine. Regarding the substantive question of treaty termination authority, on which the Constitution is silent, Judge Gasch first reviewed the history of two centuries of treaty termination. He found that, while there had been some apparently unchallenged instances of unilateral termination by the president, most of these “involved commercial situations where the need for the treaty, or the efficacy of it, was no longer apparent.” More significant, he found that “[t]he great majority of the historical precedents involve some form of mutual action, whereby the President’s notice of termination receives the affirmative approval of the Senate or the entire Congress.”

The Sole Organ?

President Carter invoked his foreign affairs power in support of his position. He cited the famous — or infamous, depending on one’s view — dictum in United States v. Curtiss-Wright Export Corp (1936) that the president is “the sole organ of the federal government in the field of international relations.” Judge Gasch dismissed the president’s argument in the following terms: “While the President may be the sole organ of communication with foreign governments, he is clearly not the sole maker of foreign policy. In short, the conduct of foreign relations is not a plenary executive power.”

In further support of the plaintiffs’ position, Judge Gasch relied on the constitutional status of treaties as the supreme law of the land and the president’s obligation to faithfully execute the laws. The president “alone cannot effect the repeal of a law of the land which was formed by joint action of the executive and legislative branches, whether that law be a statute or a treaty,” he wrote. The judge also quoted these words — a prescient comment on what has come to be known in common parlance as the imperial presidency — of Justice Felix Frankfurter: “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

In conclusion, Judge Gasch wrote that “the President’s notice of termination must receive the approval of two-thirds of the United States Senate or a majority of both houses of Congress for it to be effective under our Constitution.”

President Carter appealed, and the D.C. Circuit reversed in a per curiam opinion with concurrences. After reviewing a number of arguments in support of reversal, the per curiam opinion (filed by Chief Judge Wright) concludes, “Viewing the issue before us so narrowly and in the circumstances of this treaty and its history to date, we see no reason which we could in good conscience invoke to refrain from judgment . . . .” Perhaps more important for purposes of guiding Congress today, the opinion also takes pains to point out that the Senate had not, “since the giving of the notice of termination, purported to take any final or decisive action with respect to it, either by way of approval or disapproval.” This implies that had the Senate taken a final or decisive action of disapproval, the result might have been different.

No Single Voice

Chief Judge Wright, with Judge Edward Tamm concurring, would have dismissed the complaint for lack of standing. They also pointed out that “if Congress wants to participate directly in a treaty termination it can find the means to do so.”

Judge George MacKinnon, though concurring in part, thunderously dissented from the per curiam opinion’s reasoning. He chastised the majority for rendering “an obviously expedient decision” with which, he said, history “will not deal kindly.” He reviewed the 200-year history of treaty termination at length and concluded that reliance upon “miniscule precedent forcibly illustrates the great weakness in the President’s claim to absolute power in the present circumstances.” And he added, in a passage particularly relevant to the contemporary state of affairs, that “[foreign affairs become our national affairs. Hence, to the extent that we complacently grant to the President unbridled power in the international realm, we increase his power nationally, to an ever expanding degree.”

The Supreme Court had the last word in Goldwater, but it turned out to be a rather garbled one. It ordered the judgment of the D.C. Circuit to be vacated, and remanded the case to the District Court with directions to dismiss the complaint. The individual justices were somewhat more verbose.

Justice Lewis Powell Jr. agreed with the Court’s result, but would have dismissed the case as not ripe for judicial review. He thus disagreed with Justice Rehnquist (with whom Chief Justice Warren Burger and Justices Potter Stewart and John Paul Stevens concurred) that the issue was nonjusticiable on the grounds that it constituted a political question. On the contrary, Powell wrote words that, like the D.C. Circuit’s per curiam opinion, might offer some guidance to Congress today. He stated, “If the Congress, by appropriate formal action, had challenged the President’s authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue.”

Justice Harry Blackmun, joined by Justice Byron White, held that it was indefensible for the Court to have decided the case without briefing and oral argument; they would have set it for oral argument and given it “the plenary consideration it so obviously deserves.” Justice William Brennan Jr., accusing Justice Rehnquist of profoundly misapprehending the political question principle as applied to foreign relations, would have affirmed the “prudently narrow” judgment of the D.C. Circuit solely on the ground that the power to recognize and withdraw recognition from foreign regimes is the president’s alone. Justice Thurgood Marshall concurred in the result, without joining the statements of any of his brethren or issuing one of his own.

Plan of Action

So what is the lesson in this convoluted judicial history for the current dispute between Congress and the president? First, it is not possible to discern a coherent reason for the Court’s action in Goldwater. Given the fact- based but divergent opinions of Powell and Brennan, the nonsubstantive opinions of Blackmun and White, and the Sphinx-like silence of Marshall, it is impossible to extract from the judgment a majority rule that would provide guidance to a Court considering a new challenge to presidential termination.

Second, and equally important, some of the concurring and dissenting judicial voices suggest a plan of action for Congress. Congress can act, as an institution, to pass legislation or a sense of the Congress (or of the Senate) resolution, or to hold hearings, to assert its role in foreign affairs and indicate its strong objection to allowing the president to unilaterally terminate the ABM treaty. Such steps might work to stop the president’s action. And if they do not, they would at least provide a stronger basis for judicial intervention than existed in Goldwater.

If Congress fails to act, it will only risk — in the words of Justice Frankfurter — “the accretion of dangerous power” taking another giant step forward.
*Peter Weiss is president of the Lawyers’ Committee on Nuclear Policy, based in New York.