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In new article, Galbraith examines presidential power to rejoin treaties

December 02, 2019

As President Donald J. Trump continues to exercise his authority to unilaterally withdraw the United States from international agreements, a vital new article by University of Pennsylvania Law School Professor of Law Jean Galbraith illuminates how and why future presidents can use their power to reenter the same agreements without returning to Congress for renewed advice and consent. “Rejoining Treaties,” forthcoming in the Virginia Law Review, addresses an underexplored question of separation of powers and international law that has become increasingly urgent in the current polarized political climate: “Does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from [that] treaty?” Delving deep into the constitutional and theoretical underpinnings of presidential and Congressional authority relating to treaties, the article answers that question in the affirmative, providing a valuable framework that has the potential to increase stability in the international order. 

Jean Galbraith is a scholar of U.S. foreign relations law and public international law. Her work focuses on the allocation of legal authority among U.S. governmental actors and, at the international level, between domestic actors and international regimes.

“Since coming to office, President Trump has pursued a policy of international disengagement on many fronts,” Galbraith writes, not only rolling back international commitments made by President Barack Obama through executive or other authority, but also signaling an interest in terminating treaties — “legal instruments that received the advice and consent of two-thirds of the Senate and thus commanded, at least at one point in history, strong bipartisan support.”

Indeed, “[i]n October 2018, the Trump administration announced the immediate or planned U.S. withdrawal from three treaties: the Optional Protocol to the Vienna Convention on Diplomatic Relations; the Treaty of Amity, Economic Relations, and Consular Rights with Iran; and the Intermediate-Range Nuclear Forces Treaty with Russia.” President Trump has also repeatedly signaled an interest in withdrawing from the North Atlantic Treaty, which underlies NATO.

To the extent that one president can lawfully withdraw the United States from such treaties without input from Congress, a future president may unilaterally rejoin them, Galbraith argues. The argument rests on two propositions: “The first is that, as a constitutional matter, an initial resolution of advice and consent could serve as advice and consent for rejoining after a unilateral presidential withdrawal. The second is that, as a matter of their interpretation, existing Senate resolutions of advice and consent do in fact serve as such.”

Importantly, she points out, Senate resolutions of advice and consent to treaties “are already understood to remain operative well after the end of the Senate session in which they are passed, as the executive branch often does not ratify treaties until years after the Senate’s advice and consent has been given.” In the absence of any deadline imposed on such resolutions’ effectiveness, an argument against relying upon the original resolution of advice and consent to rejoin a treaty would effectively give a withdrawing President the power to “unmake a ‘supreme law of the land’ that was made initially not just with presidential authority but also with a bipartisan super-majority of the Senate.”  However, [t]he concept of checks and balances lies at the heart of our constitutional system,” Galbraith writes. “To hold that, as a constitutional matter, the Senate may not authorize rejoining [in its initial resolution] would be to enhance the reach of this unchecked power of withdrawal.  By contrast, if the Senate can authorize rejoining, then it has available to it a tool that can blunt the long-term impact of the unilateral presidential power of withdrawal.”

Further, she argues, “[t]he Senate presumably advises and consents to treaties because it wants the United States to become a party to these treaties. Interpreting a Senate resolution of advice and consent to authorize the rejoining of a treaty advances this underlying purpose.”

Although constitutionally and interpretively, future Presidents should be understood to have the power to rejoin treaties based on the original Congressional resolution, Galbraith acknowledges that such power may have a few legal and practical limitations. Among them are cases in which “either Congress or two-thirds of the Senate has expressly or impliedly repealed the Senate’s original advice and consent,” instances where “the President is unable as a matter of international relations or international law to rejoin the treaty, or at least unable to rejoin it in a manner consistent with the Senate’s original resolution of advice and consent,” and finally those situations when “intervening changes in U.S. law may limit the implementation of the treaty, which in turn can affect whether and when the United States rejoins it.”

Apart from those scenarios, however, Galbraith’s article demonstrates that presidential authority to unilaterally rejoin treaties is “textually supported, well-grounded in cognate practice, and structurally sound.”

“The Trump administration has yet to run its course, but it seems clear that there will be rebuilding on many fronts at the end of it. With respect to treaties, we do not yet know how many will be undone before the end of President Trump’s term,” Galbraith writes. “Should [the next] President deem certain treaty withdrawals by President Trump or his predecessors to be unwise, then, subject to the limitations discussed earlier, he or she may promptly rejoin the United States to these treaties without the need for a second round of advice and consent from the Senate… . If President Trump has the unilateral power to withdraw, then his successor does and should have the unilateral power to rejoin.”