Does the U.S. President Have the Authority to Withdraw from NATO?
November 24, 2024
President-elect Donald Trump is not a fan of NATO—the North Atlantic Treaty Organization—which has been the backbone of the U.S.-European security alliance since its creation in 1949. He has mused publicly about withdrawing the United States from the treaty. Along the campaign trail, Trump has reminded audiences of his threat to refuse military support for a NATO ally that he believes doesn’t pay enough to support the alliance, despite the promise in Article V of the treaty that an attack on one member state represents an attack on all.
The only time in its history that Article V has been invoked was when the U.S. was attacked on September 11, 2001, and member states came to the defense of our nation. With the incoming Trump Administration just two months from assuming power, the future of NATO and America’s role in the organization, if any, is up in the air, which raises a constitutional question of great moment: Does the president possess unilateral authority to withdraw the United States from its treaties?
The question of the constitutional authority to terminate treaties is the subject of long-standing debate. The uncertainty, which stems from the fact that the Constitution is silent on the repository of the power to denounce treaties, has engendered doctrinal confusion and variety in practice. The Supreme Court bypassed an opportunity to resolve the controversy in Goldwater v. Carter (1979), when it dismissed as nonjusticiable on grounds of standing Sen. Barry Goldwater’s legal challenge to President Jimmy Carter’s termination of the 1954 Mutual Defense Treaty with Taiwan. While the decision, technically, did not establish a precedent, it left Carter’s act undisturbed, and it was invoked in 1986 as authority for President Ronald Reagan’s termination of a treaty of friendship and commerce with Nicaragua, and again in 2020 by then President Trump as justification for his termination of the Open Skies Treaty with Russia. Full disclosure: as a young scholar, in law review articles and correspondence with Goldwater’s team, I supported the Senator’s argument that treaty termination requires approval of the Senate.
The location of authority to terminate treaties presents serious ramification for constitutional doctrine and the course of American foreign policy, as measured by mutual security treaties, treaty alliances, and nuclear weapons agreements that expressly govern U.S. security matters, and other international arrangements that have an important effect on economic, environmental, and commercial interests.
The Constitutional Convention did not address the issue of treaty termination, at least directly. It seems likely, however, that the Framers’ fear of unilateral executive power in foreign affairs, their commitment to collective decision making, and the policy concerns that impelled them to create a treaty power shared by the president and the Senate, would have precluded the possibility of a unilateral presidential power to terminate treaties. The shared power regarding the treaty power satisfied the southern states, which feared that their regional, economic, and security interests would be ignored by northern states. It was made clear in the Convention that without those accommodations, including Senate approval of a treaty by a two-thirds vote, the treaty power would not have been accepted.
Obviously, the termination of a treaty could do as much harm to the jealously guarded sectional and state interests as the negotiation of a treaty, and its denunciation by one person could hardly maintain the delicate balance of this carefully crafted system. In fact, writings at the time suggest the Framers assumed that the power to make treaties included the power to terminate them. This principle of symmetrical construction was endorsed by John Jay who wrote in Federalist No. 64, “they who make treaties may alter or cancel them,” and by James Madison, who stated: “That the contracting parties can annul a treaty cannot, I presume, be questioned, the same authority, precisely, being exercised in annulling as in making a treaty.”
The explanations of Jay, who was America’s foremost expert on foreign affairs, and Madison, the leading architect of the Constitution, without any opposition arguments on the question, that is, without any assertion of a unilateral executive authority to terminate treaties, strongly suggest the Convention’s understanding that the principle of symmetry would govern the important issue of treaty termination. Whether the aims and concerns of the Framers wield influence in the Trump Administration remains to be seen.
-David Adler