Could the President Unilaterally Terminate All International Agreements?

This chapter examines Section 313 of the Fourth Restatement of the Foreign Relations Law, regarding “Authority to Suspend, Terminate, or Withdraw from Treaties.” That provision states that “according to established practice, the president has the authority to act on behalf of the United States in suspending or terminating U.S. treaty commitments and in withdrawing the United States from treaties.” While the reporters cautioned that this section currently applies only to Article II treaties, one of them recently wrote that “if presidents do have the legal authority to withdraw from Article II treaties, it is not clear why that authority would not extend to congressional-executive agreements” and presumably, other agreements as well. Donald Trump’s tumultuous presidency has called this broad supposition into question. Since 2017, the Trump administration has announced its withdrawal from a host of bilateral and multilateral arrangements. One could easily imagine this president and his lawyers misconstruing Section 313 as justifying a general power of the president to terminate, suspend, or withdraw from any and all international agreements to which the United States is a party. The chapter argues that no such power exists. The U.S. Constitution does not confer upon the president a general unilateral power of treaty termination. Nor can such a general unilateral power be derived from constitutional text, structure, or U.S. Supreme Court precedent.

Questions

10.1093/oso/9780190865214.003.0007 ◽

2018 ◽

Cited By ~ 1

Author(s):

James L. Gibson ◽

Michael J. Nelson

Keyword(s):

United States ◽

African Americans ◽

Supreme Court ◽

Legal System ◽

Public Support ◽

The United States ◽

Future Research ◽

White Americans ◽

Two Factors ◽

The U.S

We have investigated the differences in support for the U.S. Supreme Court among black, Hispanic, and white Americans, catalogued the variation in African Americans’ group attachments and experiences with legal authorities, and examined how those latter two factors shape individuals’ support for the U.S. Supreme Court, that Court’s decisions, and for their local legal system. We take this opportunity to weave our findings together, taking stock of what we have learned from our analyses and what seem like fruitful paths for future research. In the process, we revisit Positivity Theory. We present a modified version of the theory that we hope will guide future inquiry on public support for courts, both in the United States and abroad.

International Agreements and U.S. Foreign Relations Law

The Oxford Handbook of Comparative Foreign Relations Law ◽

10.1093/oxfordhb/9780190653330.013.9 ◽

2019 ◽

pp. 155-171

Author(s):

Jean Galbraith

Keyword(s):

United States ◽

Foreign Relations ◽

Constitutional Law ◽

Comparative Law ◽

The United States ◽

International Agreements ◽

Constitutional History ◽

Administrative Reforms ◽

Administrative Efficiency ◽

International Commitments

Over its constitutional history, the United States has developed multiple ways of joining, implementing, and terminating treaties and other international commitments. This chapter provides an overview of the law governing these pathways and considers the extent to which comparative law has influenced them or could do so in the future. Focusing in particular on the making of international commitments, the chapter describes how, over time, the United States came to develop alternatives to the process set out in the U.S. Constitution’s Treaty Clause, which requires the approval of two-thirds of the Senate. These alternatives arose partly from reasons of administrative efficiency and partly from presidential interest in making important international commitments in situations where two-thirds of the Senate would be unobtainable. These alternatives have had the effect of considerably increasing the president’s constitutional power to make international commitments. Nonetheless, considerable constraints remain on presidential power in this context, with some of these constraints stemming from constitutional law and others from statutory, administrative, and international law. With respect to comparative law, the chapter observes that U.S. practice historically has been largely but not entirely self-contained. Looking ahead, comparative practice is unlikely to affect U.S. constitutional law with respect to international agreements, but it might hold insights for legislative or administrative reforms.

Foreign Relations Law

The Oxford Handbook of Comparative Foreign Relations Law ◽

10.1093/oxfordhb/9780190653330.013.3 ◽

2019 ◽

pp. 43-61

Author(s):

Karen Knop

Keyword(s):

United States ◽

International Law ◽

Foreign Relations ◽

Comparative Law ◽

The United States ◽

Legal Systems ◽

The U.S

The two starting points for this chapter are that fields of law are inventions, and that fields matter as analytical frames. All legal systems deal with foreign relations issues, but few have a field of “foreign relations law.” As the best-stocked cabinet of issues and ideas, U.S. foreign relations law would be likely to generate the field elsewhere in the process of comparison. But some scholars, particularly outside the United States, see the nationalist or sovereigntist strains of the U.S. field, and perhaps even just its use as a template, as demoting international law. The chapter begins by asking whether this apprehension can be alleviated by using international law or an existing comparative law field to inventory the foreign relations issues to be compared. Finding neither sufficient, it turns to the U.S. field as an initial frame and sketches three types of anxieties that the U.S. experience has raised or might raise for international law. The chapter concludes by suggesting how Campbell McLachlan’s allocative conception of foreign relations law might be adapted so as to turn such anxieties about international law into opportunities.

Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom

Laws ◽

10.3390/laws10010012 ◽

2021 ◽

Vol 10 (1) ◽

pp. 12

Author(s):

Paul Baumgardner

Keyword(s):

United States ◽

Supreme Court ◽

Legal System ◽

Religious Freedom ◽

The United States ◽

Religious Practices ◽

The Past ◽

The U.S

When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.

U.S. Supreme Court Denies Certiorari in Habeas Case Brought by Guantánamo Bay Detainee Challenging His Continuing Detention

10.1017/ajil.2019.64 ◽

2019 ◽

Vol 113 (4) ◽

pp. 849-855

Keyword(s):

United States ◽

Supreme Court ◽

The United States ◽

September 11 ◽

Habeas Corpus ◽

Past Time ◽

Guantanamo Bay ◽

The Supreme Court ◽

September 11 Attacks ◽

The U.S

On June 10, 2019, the Supreme Court denied certiorari in a case in which the D.C. Circuit held that the United States could continue to detain an individual at Guantánamo Bay until the cessation of the hostilities that justified his initial detention, notwithstanding the extraordinary length of the hostilities to date. The case, Al-Alwi v. Trump, arises from petitioner Moath Hamza Ahmed Al-Alwi's petition for a writ of habeas corpus challenging the legality of his continued detention at the United States Naval Base at Guantánamo Bay. The Supreme Court's denial of certiorari was accompanied by a statement by Justice Breyer observing that “it is past time to confront the difficult question” of how long a detention grounded in the U.S. response to the September 11 attacks can be justified.

Trump Administration Announces Withdrawal from Four International Agreements

10.1017/ajil.2018.115 ◽

2019 ◽

Vol 113 (1) ◽

pp. 131-141

Keyword(s):

United States ◽

The United States ◽

International Agreements ◽

Vienna Convention ◽

Nuclear Forces ◽

International Court Of Justice ◽

Economic Relations ◽

Optional Protocol ◽

International Court ◽

In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.

Trump v. Hawaii

10.1017/ajil.2018.105 ◽

2019 ◽

Vol 113 (1) ◽

pp. 109-116 ◽

Cited By ~ 2

Author(s):

Peter J. Spiro

Keyword(s):

United States ◽

Supreme Court ◽

United States Supreme Court ◽

The United States ◽

United States Supreme ◽

Lower Courts ◽

In Trump v. Hawaii, the United States Supreme Court upheld admissions restrictions imposed by the Trump administration on nationals of certain countries for putative security reasons. In so doing, the Court's opinion reaffirmed judicial deference to the president on matters relating to immigration. Although the decision marked a Trump administration victory at the end of a protracted judicial clash, the lower courts are likely to continue operating as a check on aggressively restrictionist policies pursued by the administration on other fronts.

Jam v. International Finance Corp. (U.S. Sup. Ct.)

International Legal Materials ◽

10.1017/ilm.2019.21 ◽

2019 ◽

Vol 58 (3) ◽

pp. 646-663 ◽

Cited By ~ 2

Author(s):

Nancy Perkins ◽

Sally Pei

Keyword(s):

United States ◽

Supreme Court ◽

International Finance ◽

International Organizations ◽

The United States ◽

Critical Importance ◽

The U.S

On February 27, 2019, the U.S. Supreme Court issued an opinion in Jam v. International Finance Corp., a case of critical importance for international organizations. The question presented in Jam was whether U.S. law affords international organizations absolute immunity from suit in the United States, or whether international organizations instead are entitled to only the more limited or “restrictive” immunity that applies to foreign sovereigns under the Foreign Sovereign Immunities Act.

Atlas Shrugged: The U.S. Fatigue with Being the Market of Last Resort

Proceedings of the ASIL Annual Meeting ◽

10.1017/amp.2018.19 ◽

2018 ◽

Vol 112 ◽

pp. 271-274

Author(s):

Elizbeth Baltzan

Keyword(s):

United States ◽

The United States ◽

Trade Expansion ◽

Trading System ◽

New Members ◽

Appellate Body ◽

Campaign Rhetoric ◽

Excess Production ◽

The U.S ◽

The Trump administration has made no secret about its frustration with the World Trade Organization (WTO). Campaign rhetoric is being channeled into policy. The United States is single-handedly strangling the Appellate Body by blocking appointment of new members and complaining about those who are holding over past their terms. The latest WTO ministerial resulted in no deals. An administration that touts enforcement has largely eschewed filing WTO complaints. The president's imposition of duties pursuant to Section 232 of the Trade Expansion Act of 1962 (Section 232) is a manifestation of deeper concerns with the asymmetry that was built into the global trading system—asymmetry the United States encouraged at the time. That asymmetry contributed to the U.S. status as the market of last resort: the destination of choice for excess production, with adverse consequences for domestic producers of similar goods.

Sabbatino Resurrected: The Act of State Doctrine in the Revised Restatement of U.S. Foreign Relations Law

10.2307/2202664 ◽

1985 ◽

Vol 79 (1) ◽

pp. 68-91 ◽

Cited By ~ 3

Author(s):

Malvina Halberstam

Keyword(s):

United States ◽

Supreme Court ◽

International Law ◽

Foreign Relations ◽

Supreme Court Decision ◽

The United States ◽

Court Decision ◽

Foreign State ◽

The Supreme Court

Among the more controversial provisions of the Restatement of the Foreign Relations Law of the United States (Revised), are the sections dealing with the act of state doctrine in Tentative Draft No. 4. Section 428 provides: “Subject to §429, courts in the United States will refrain from examining the validity of an act of a foreign state taken in its sovereign capacity within the state’s own territory.” This provision, of course, is based on the Supreme Court decision in Sabbatino. The Court there stated, “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government” even if it is alleged that the taking is contrary to international law.