Congress’s Control Over Treaty Exit

On December 5, 2024, the Congressional Study Group on Foreign Relations and National Security convened virtually to explore the role of Congress in treaty exit. This discussion built on an earlier 2022 discussion addressing presidential authority and congressional oversight in the context of international agreements, particularly in light of recent statutory developments and shifting executive branch positions.

During his first term in office, President Trump’s decision to withdraw from several international agreements raised a number of questions regarding the president’s authority to exit from treaties without consulting—and, in the case of the Open Skies Treaty, contrary to statutory requirements imposed by—Congress. In late 2020, the Justice Department issued a legal opinion asserting a broad view of the president’s authority to take such steps even over congressional objections, which remains the executive branch’s stated position. Nonetheless, Congress has continued to take steps to protect certain treaties from exit, most notably installing a statutory provision in 2022 that prohibits the President from exiting the North Atlantic Treaty that undergirds NATO without congressional authorization. As a result, questions regarding Congress’s role in treaty exit may reemerge during the second Trump presidency.

The study group was joined by two leading experts in the field, whom the project director, Brookings Institution fellow Scott R. Anderson, led in discussion:

• Curtis Bradley, a professor at the University of Chicago Law School and a former Counselor on International Law at the U.S. Department of State (2004); and
• Kristen Eichensehr, a professor at the University of Virginia School of Law

In preparation for the discussion, participants were encouraged to review the following materials:

• Catherine Amirfar and Ashika Singh, “Withdrawal from International Agreements: Toward a ‘Tailored Out,’” Just Security (Nov. 1, 2024);
• Scott R. Anderson, “What Congress Has Done—and What It Still Needs to Do—to Protect NATO,” Lawfare (Mar. 22, 2024);
• Curtis Bradley & Jack Goldsmith, “Constitutional Issues Relating to the NATO Support Act,” Lawfare (Jan. 28, 2019);
• Curtis Bradley, “Treaty Termination and Historical Gloss,” Texas Law Review (2014); and
• Kristen Eichensehr, “Treaty Termination and the Separation of Powers,” Virginia Journal of International Law (2013).

Professor Bradley opened the discussion with an overview of the constitutional ambiguity surrounding treaty termination. He noted that the Constitution is silent on how the United States may exit treaties, creating significant debate over the respective roles of the executive and legislative branches. Historically, 19th-century presidents often sought congressional or senatorial approval for treaty terminations, reflecting uncertainty about unilateral executive authority. By the 20th century, unilateral presidential actions became more common, particularly during the Roosevelt administration. Recent examples, such as President Trump’s withdrawal from the Open Skies Treaty and the Paris Agreement, have reignited debates about the extent of executive power.

Bradley also highlighted the Justice Department’s 2020 legal opinion asserting broad presidential authority to exit treaties, even contrary to statutory constraints imposed by Congress. This remains the executive branch’s stated position.

Professor Eichensehr then discussed some of Congress’s responses to unilateral treaty withdrawals. The recently enacted provision regarding NATO prohibits the president from withdrawing from the North Atlantic Treaty without congressional authorization, marking a significant legislative check on executive authority. Congress has, on occasion, imposed other statutory constraints on treaty termination as well, such as provision requiring that the President give Congress advance notice before withdrawing from the Open Skies Treaty. Despite these enactments, the executive branch has continued to assert that treaty withdrawal falls exclusively under presidential authority, citing functional and structural arguments.

Eichensehr underscored that while Congress’s legislative tools can shape the debate, they face pushback from the executive, which views these measures as infringing on its constitutional prerogatives.

Both panelists analyzed treaty withdrawal through the lens of Justice Jackson’s tripartite framework from his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, which the Supreme Court has frequently used to evaluate cases of implied presidential powers. The framework divides presidential action into three categories, from most to least permissible: category one, where presidential action occurs with congressional approval and is thus generally valid; category two (often called the “zone of twilight”), where presidential action occurs in the face of congressional silence and may be valid depending on past practice and other factors; and category three, where presidential action is contrary to the express or implied will of Congress, in which case the president’s authority is at its “lowest ebb” and his or her actions can only be sustained where they are pursuant to exclusive constitutional authority. Where presidents have withdrawn from treaties without congressional involvement in the past, such action has generally been in category two, which the courts often treat as permissible. But enacting legislation prohibiting withdrawal arguably puts such action into category three, where it should be subject to the most extreme judicial scrutiny if challenged.

The panelists then examined potential avenues for raising legal challenges to treaty withdrawals. Specifically, they highlighted several significant obstacles, including:

• Standing: Courts have consistently rejected challenges brought by individual members of Congress, requiring either institutional authorization or private parties with direct injuries to pursue litigation.
• Political Question Doctrine: In Goldwater v. Carter, a plurality of the Supreme Court treated treaty termination as a non-justiciable political question, and several lower courts have since followed suit. That said, the Supreme Court’s 2013 decision in Zivotofsky v. Clinton arguably narrowed the scope of this doctrine so that it does not reach situations where presidential action directly conflicts with a statute.
• Ripeness and Mootness: Timing issues frequently hinder judicial review or provide a means by which reluctant courts can avoid reaching the merits on an issue, particularly in a fast-moving and politically sensitive foreign policy context.

Bradley noted that while litigation remains an option, political and legislative mechanisms are likely more effective for asserting congressional authority.

The panelists suggested several strategies Congress could pursue to strengthen its role in treaty withdrawal, including:

• Proactive Legislation: Enacting statutes that explicitly condition treaty termination on congressional approval or establish procedures for legislative involvement.
• Institutional Standing: Authorizing the House or Senate to bring lawsuits on behalf of Congress in cases where statutory provisions are violated.
• RUDs: The Senate could employ reservations, understandings, and declarations (RUDs) during treaty ratification to impose conditions on future withdrawals.
• Diplomatic Notices: Leveraging executive communication with treaty depositories to document statutory constraints on withdrawal, thereby informing international parties of domestic legal requirements.

All told, the discussion underscored the ongoing constitutional tension between Congress and the executive branch regarding treaty termination. Panelists emphasized the importance of proactive legislative measures, robust oversight, and sustained dialogue to address this critical issue. While the courts may eventually weigh in on the matter, political and legislative solutions remain the most viable path forward.

The study group then concluded with an open discussion session, during which attendees were free to comment on and pose questions regarding the various issues raised.

Visit the Congressional Study Group on Foreign Relations and National Security landing page to access notes and information on other sessions.