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In Q&A, Jean Galbraith discusses presidential authority to rejoin treaties from which the U.S. has withdrawn

February 11, 2019

A respected scholar of U.S. foreign relations law and public international law, Penn Law professor Jean Galbraith focuses her research on the allocation of legal authority among U.S. governmental actors and, at the international level, between domestic actors and international regimes. Recently, the prospect of the United States withdrawing from various international commitments has been the subject of significant news coverage. Against that backdrop, Penn Law’s Office of Communications spoke with Professor Galbraith about her current research on presidential authority to withdraw from and rejoin international agreements.

Penn Law: What are you currently working on?

Jean Galbraith: I have a number of articles in progress that are all in the fairly early development stage. One project that I’m doing has to do with the question of treaties. Right now, we’re having a big conversation within the scholarly field about treaty withdrawal because President Trump has withdrawn the U.S. from a number of international commitments and there is the potential on the horizon for many more withdrawals. Some of these withdrawals are ones where I think the president has the authority, as a constitutional matter, to do it pretty easily: for example, the Paris Agreement and the Iran deal. I’m not happy with those as policy choices, but I think that the president of the United States has the authority because those were entered into by President Obama without [him] going to get congressional approval for them.

Another set of agreements that President Trump has done a bit of withdrawing from, and may do more, is treaties that the Senate advised and consented to by a two-thirds majority. So far we’ve seen three of those that have been prominent in the news: one is the Treaty of Amity with Iran, one is an Optional Protocol to the Vienna Protocol on Diplomatic Relations, and the third is the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. For all these treaties, either the notice of withdrawal has been given or the withdrawal has actually taken place.

For these treaties, in order to join them, the president had the advice and consent of two-thirds of the Senate, and now President Trump is withdrawing the U.S. from them without going back to the Senate and asking for two-thirds’ approval to withdraw, or without getting a resolution from Congress. As a matter of constitutional practice, presidents have done this before. There’s currently a conversation going on about whether the president does in fact have the authority to do this unilaterally, or [whether he needs] Congress. I think this is a really hard issue, and if you push me on it, I probably come down in the camp that the president does have the authority to do this unilaterally unless Congress or two-thirds of the Senate has said explicitly, “you can’t do this unilaterally without us.”

But the question I’m looking at in the current paper is actually not about withdrawal per se, it’s about rejoining treaties. Can the next president just rejoin the U.S. in these treaties without going back to the Senate? You still have the original resolution of advice and consent out there.

PL: Which side do you come down on with regard to presidential authority to unilaterally rejoin treaties?

JG: I’m working through it. My tentative view is yes. It hasn’t been done before, but nor has it been an issue before, because even though we’ve had some controversial withdrawals, they haven’t been withdrawals at the level of controversy where the next president says, “I really want to roll that back.” I think with President Trump, we’re not necessarily at that point yet with the treaties that received the Senate’s advice and consent, but [we might be] if he does something like withdraw from the North Atlantic Treaty [which underlies NATO], or from a number of other treaties — I think the next president would want to correct and address that. My question is, does the [next] president have the legal power to rejoin those treaties — without returning to the Senate for advice and consent — on the basis of the prior resolution which is still out there? Or, does President Trump, by the act of withdrawal, have the power as the president to cancel out the actions of a coordinate branch of government and basically make that initial resolution moot and meaningless, and inoperative as a matter of law? This is a new question, which is really exciting, because you very rarely get questions that nobody has written about.

PL: What would be the theory underlying the idea that the next president could just rejoin a treaty that the prior president had withdrawn from?

JG: The theory would be that when the Senate gives its advice and consent to the treaty, it is saying to the president, “We authorize you to go ahead and ratify the treaty.” The president still has the discretion not to ratify it. Also, the Senate can give its advice and consent and years can pass before ratification. Even going back to the nineteenth and early twentieth centuries, we had treaties where the Senate advised and consented at point X, and then it wasn’t until three, five, or fifteen years later that the U.S. actually joined the treaty.

If the Senate put a time limit on [joining the treaty], that would be one thing, but they typically don’t put time limits on it. Therefore, they have advised and consented to joining, and if the U.S. is not part of the treaty and wishes to join it, even though it was previously in and withdrew, I don’t see why, as a matter of domestic law, being in and having withdrawn is different from not having joined and then joining in the first place. It’s still the act of joining the treaty.

In fact, if you take the hypothetical of a resolution of advice and consent and then 16 years go by, and then the president joins the U.S. to a treaty, versus the hypothetical where you get a resolution of advice and consent, the president immediately joins the US to a treaty, 16 years go by, another president withdraws, and then the following president immediately rejoins, it seems to me there’s actually a stronger case for saying that rejoining is appropriate because we’re restoring a status quo that the Senate has not signaled its disapproval of.

I think the Senate could withdraw a resolution of advice and consent by two-thirds, and I think Congress could effectively cancel one out by a congressional act. But until those acts exist, I think the resolution of advice and consent stands. Any other choice would give the president even more power than the president has, which is the power to cancel out what the Senate has done.

As a structural matter, I think [this theory is] valuable because otherwise there’s too strong a thumb on the scale against international cooperation, or at least against international cooperation that brings in the legislative branch. This is the critique of withdrawal: one president has to very laboriously get two-thirds of the Senate — and it has to be bipartisan because you never have two-thirds of the Senate that’s not a bipartisan combination—and then the next president can just say, “We’re out, we’re done,” and then a following president, in order to rejoin, would have to go back and get the Senate again. That’s a real disbalance. Whereas it’s not really that much of a disbalance if you’ve got the Senate and then the president says we’re in, and then the next one says we’re out, and then the next one can say we’re back in.

I grant you this is not a recipe for international stability, if we have presidents who are aggressively willing to exercise the withdrawal power. But I think the constitutional story over time is that actually presidents have been quite sensible and circumspect for the most part in their choices about withdrawal. This issue is really only going to come up if we have a president who is so unaware and unconscious of the essential elements of multilateral cooperation that there needs to be reworking of what’s been done.

PL: Would you say that the U.S. currently has a president who fits that description?

JG: We currently have a president like that in many areas of foreign affairs. On the particular issue of treaties, the president has not yet pulled the U.S. out of an Article II treaty, a blockbuster or really foundational treaty like the North Atlantic Treaty or the UN Charter. But the president seems to have real interest in pulling the United States out of the North Atlantic Treaty, and that to me is deeply concerning. [The North Atlantic Treaty] is a fundamental pillar of the post-World War II order that the U.S. has taken seriously for decades, and which is a bedrock part of our relationship with Europe and with the broader hemisphere. To rock that order on the basis of what seems not to be developed expertise and reasoning, but rather presidential whim, is profoundly problematic.