Exit and the Law

International law on withdrawal from international agreements is relatively clear and coherent. International agreements can contain provisions authorizing withdrawal—and usually do so.Footnote ⁴ For agreements that do not have withdrawal provisions, the Vienna Convention on the Law of Treaties provides that withdrawal is an option if the parties so intended or if the nature of the agreement so implies.Footnote ⁵ In addition, for all agreements, withdrawal is available if particular circumstances are satisfied, such as impossibility of performance.Footnote ⁶ Practically speaking, the overall result is that nations have internationally lawful ways to withdraw from most agreements, provided that they are willing to be patient about the exact timing. Only a modest number of important agreements (most notably certain human rights treaties) lack any clear path to withdrawal.Footnote ⁷

By contrast, U.S. domestic law on withdrawal is both complicated and opaque. The Constitution provides that the President can make treaties with the advice and consent of two-thirds of the Senate, but it says nothing specific about what domestic actor or actors have the power to withdraw the United States from treaties.

As Curtis Bradley has shown, “[h]istorical practice through at least the late nineteenth century suggests an understanding that congressional or senatorial approval was constitutionally required for the termination of U.S. treaties.”Footnote ⁸ Over the course of the twentieth century, however, presidents came to assert and exercise the power to withdraw the United States from treaties, at least where withdrawal was permissible under international law.Footnote ⁹ In 1978, withdrawal became a high-profile issue when President Carter gave notice that the United States would withdraw from its defense treaty with Taiwan. This triggered a lawsuit that went up to the Supreme Court. As described in more length in Curtis Bradley and Laurence Helfer's contribution to this symposium,Footnote ¹⁰ the Court held that the issue was nonjusticiable, effectively giving President Carter the green light to proceed.Footnote ¹¹

Since this incident, presidents have continued to claim and employ the power to terminate treaties.Footnote ¹² Currently the mainstream position is that “the President has the authority on behalf of the United States in … withdrawing the United States from treaties, either on the basis of terms in the treaty allowing for such action (such as a withdrawal clause) or on the basis of international law that would justify such an action.”Footnote ¹³ But as with all practice-based constitutional conclusions, there is always the chance that the Supreme Court will one day decide otherwise. Moreover, this position leaves some intriguing questions unanswered. Can the President withdraw the United States from treaties (at least for all domestic law purposes) where international law does not permit withdrawal? Under what circumstances will the President's withdrawal of the United States from a treaty trigger the suspension or the sunset of an existing statute that implements the treaty?Footnote ¹⁴

U.S. law related to withdrawal is made even more complicated by the existence of international agreements other than treaties. Over time, the United States has come to make international agreements in ways other than those specified in the Treaty Clause, including (1) sole executive agreements, which are negotiated and ratified solely by executive branch actors; (2) ex ante congressional-executive agreements, which are authorized to at least some degree by congressional statutes prior to being negotiated and ratified by executive branch actors; and (3) ex post congressional-executive agreements, which are negotiated by executive branch actors, approved by Congress with accompanying implementing legislation, and then ratified by executive branch actors. The courts have for the most part not addressed what branch or branches within the federal government can withdraw from these agreements. For the first two ways, which include the Paris Agreement, logic strongly suggests that the President has the constitutional power to trigger withdrawal.Footnote ¹⁵

Ex post congressional-executive agreements present a harder issue. Presently, major trade agreements are typically made as ex post congressional-executive agreements: NAFTA is one, the U.S.-Korea Free Trade Agreement is another, and the Trans-Pacific Partnership Agreement would have been yet another if it had made it through the domestic approval process instead of being abandoned postnegotiation by President Trump. May the President withdraw the United States from these agreements as though they were treaties, or does he or she need to obtain congressional approval for withdrawal? There are substantial arguments on both sides,Footnote ¹⁶ and the issue may one day be forced by presidential withdrawal. Assuming that the President does have this power, a further question is under what circumstances withdrawal will automatically suspend or terminate implementing legislation. Sometimes implementing legislation specifies that it will not outlive the underlying agreement,Footnote ¹⁷ but other implementing legislation lacks such obvious signals.

Exit and the Future

In practice, the President has the ability to withdraw the United States from at least most international agreements. Yet this formal flexibility has historically been balanced out by functional stability. While presidents can exit international agreements, they have many reasons to be cautious in doing so. The United States joined these agreements in the first place because of their perceived value. The arguments in their favor may remain strong—or have become even stronger over time due to embeddedness or other factors. Factors independent of the merits can also favor continuation, including international reputational costs that might arise from withdrawal, bureaucratic entrenchment, and overall preferences for the status quo. It is not surprising that presidents have been chary in their use of withdrawal, especially with respect to major multilateral agreements.

The Trump Administration is disrupting this comfortable balance. The announced future withdrawal from the Paris Agreement, the indications that NAFTA hangs by a thread, the intermittent disparaging remarks about other international agreements, and the general aura of chaos overhanging the Trump Administration all make concerns about exit highly salient. Whether or not the Trump Administration actually ends up exiting major agreements, we may see future attempts to curb presidential discretion with respect to exit. In what follows, I identify five institutions that might take such steps and describe what these steps might look like. I suggest that the underlying constitutional law is relatively unlikely to change to limit presidential discretion, but that we may see more limits arise with respect to particular international agreements or more generally through the development of statutory or administrative constraints.

First, U.S. courts hold the keys to new limits on presidential power with respect to constitutional law and to the interpretation of implementing legislation. As examples in the constitutional domain, the Supreme Court could one day hold (1) that the President lacks the power to terminate treaties, (2) that the President lacks the power to terminate ex post congressional-executive agreements, or (3) drawing on Clinton v. City of New York,Footnote ¹⁸ that presidential withdrawal from an international agreement can never trigger the termination of implementing legislation whose content has an independent justification in Article I of the Constitution. But such holdings would be bold ones for a court that has traditionally been wary of placing fetters on presidential foreign affairs powers. More modestly, as a matter of interpretation the Court could require clear statements from Congress for implementing legislation to be suspended or terminated upon U.S. withdrawal from an international agreement. Such a requirement would be in keeping with the canon against implied repeals.Footnote ¹⁹

Second, Congress could do more to push back against presidential unilateralism with respect to exit. The easiest and most likely way for this to happen is through soft law mechanisms, such as committee hearings, nonbinding resolutions, or hortatory language in statutes. In the summer of 2017, Congress included such language with respect to NATO in a broader statute, expressing the “sense of Congress” that “the United States remains fully committed to the North Atlantic Treaty Organization and will honor its obligations enshrined in Article 5.”Footnote ²⁰ The Senate or Congress could also take control of exit more aggressively: the Senate could condition its advice and consent to a treaty on legislative approval of withdrawal or on for-cause justifications;Footnote ²¹ Congress could do the same with respect to an ex post congressional-executive agreement; and Congress could make clear that the lifespan of a particular piece of implementing legislation is independent of withdrawal from the international agreement. As a matter of political economy, however, if a major international agreement does get through the Senate or Congress, it usually does so with swing voters who are just barely in favor of it—and who therefore might not want to deprive the President of flexibility with respect to exit.

Third, a future administration could strengthen internal procedural rules with respect to decision-making around exit. With respect to the termination of international agreements, the C-175 Procedure at the State Department presently requires that the Secretary of State (or designatee) sign off on the initiation of termination and that a memorandum “should be prepared that takes into account the views of the relevant government agencies and interested bureaus within the Department.”Footnote ²² Future administrations could revise these procedures to make them more deliberative or transparent, such as by requiring congressional consultation, providing expressly that the preparation of the C-175 Procedure memorandum must precede notification of withdrawal, or establishing a notice-and-comment public process prior to termination of significant agreements. Such procedural changes could also be imposed by Congress. This would involve the usual difficulties of obtaining legislation, but would result in stickier rules in the long run.

Fourth, international negotiators could pursue more restrictive withdrawal provisions in international agreements. What with Brexit, President Trump, and other developments covered in this symposium, the issues of exit and related disentanglement have become exceedingly salient internationally. It is possible that international negotiators will do more in future agreements to make exit harder. For example, future exit clauses could include longer trigger periods, could more frequently provide that nations may exit only for particular reasons and must explain their exit based on these reasons,Footnote ²³ or could otherwise disincentivize exit. Negotiators from the Trump Administration might not agree to such terms, but “[s]tates are not static.”Footnote ²⁴ Later U.S. negotiators might pursue such terms precisely in order to restrict the discretion available to future presidents.

Fifth, U.S. states and cities might take actions with legal significance in response to exit. Following President Trump's announcement that the United States would withdraw from the Paris Agreement, several states and numerous cities announced their intent to “continue to support climate action to meet the Paris Agreement.”Footnote ²⁵ State and local regulations cannot formally alter the President's discretion with respect to withdrawal, but they can blunt some of its practical effects.

As the examples given suggest, we are already seeing some of these developments in practice. It is left for the future to unveil whether others will be deployed and, for them all, how effective they will be at constraining presidential discretion with regard to withdrawal or at limiting the results of withdrawal. Were the Supreme Court to change the constitutional ground-rules under which the executive branch currently operates in one or more of the ways mentioned above, that would be the most drastic change (and, in my view, the least wise one). By contrast, administrative reforms and actions specific to particular agreements would reduce the risks of ill-considered decision-making in more targeted ways, while still leaving the President with substantial flexibility.