Separation of Powers and NATO Withdrawal
Congressional research reportFeb 27, 2026
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Separation of Powers and NATO Withdrawal
February 27, 2026
Congressional Research Service
https://crsreports.congress.gov
R48868
SUMMARY
Separation of Powers and NATO Withdrawal
In 2023, Congress enacted a law that prohibits the President from “suspend[ing], terminat[ing],
denounc[ing], or withdraw[ing] the United States from the North Atlantic Treaty”—which
established the North Atlantic Treaty Organization (NATO)—without the advice and consent of
the Senate or an act of Congress. See Section 1250A of the 2024 National Defense Authorization
Act, Pub. L. No. 118-31. This provision emerged against the backdrop of debates concerning the
United States’ policy toward NATO and whether the President possesses the power to withdraw
the United States from treaties without receiving the legislative branch’s approval.
R48868
February 27, 2026
Karen Sokol
Legislative Attorney
Prior to Section 1250A’s enactment, the Department of Justice’s Office of Legal Counsel (OLC) published an opinion in
2020 concluding that the President has exclusive power over treaty withdrawal and that Congress is constitutionally
prohibited from intruding upon this power. In contrast to the OLC’s legal position, which neither courts nor Congress are
bound to consider as authoritative, Section 1250A’s sponsors stated that the legislation “ensures that no President can
unilaterally dissolve our bond to this invaluable alliance without Senate approval.” If the President decided to unilaterally
withdraw from the North Atlantic Treaty, irrespective of Section 1250A, there are at least two ways in which the statute
might affect a court’s analysis of any challenge to the President’s action. First, the statute may influence a court’s decision on
whether to hear such a challenge at all, and second, the statute could affect the court’s evaluation of the President’s action in
the event it decides to hear a case.
With respect to whether a court would hear a challenge, two doctrines are relevant: the political question doctrine and
standing. Historically, courts have generally left the issue of the constitutional distribution of treaty-withdrawal power to the
political branches, concluding that challenges to unilateral treaty withdrawal by the President present a nonjusticiable
political question. See, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979). More recent Supreme Court jurisprudence
suggests that courts may be less likely to dismiss a challenge to a President’s withdrawal from the North Atlantic Treaty in
violation of Section 1250A on political question grounds. In a case involving another question of separation of foreign policy
powers, the Court held that, where a President acts contrary to a statute on the ground that it interferes with the President’s
Article II authority, the constitutional question is one properly resolved by the judiciary rather than left to the political
branches. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012).
Another issue is who would have standing to bring a legal challenge to an alleged violation of Section 1250A. This doctrine
may present greater hurdles than the political question doctrine, as it would ultimately depend on whether the plaintiff is able
to allege that they suffered an injury that meets the standards the Supreme Court has established—i.e., that the injury is
unique to them rather than shared by the general population, is sufficiently tied to the alleged violation, and is redressable by
a court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61 (1992). In the past, courts have often found that plaintiffs,
including Members of Congress, fail to meet one or more of these requirements in cases involving foreign policy issues,
including that of treaty withdrawal. See, e.g., Kucinich v. Bush, 236 F. Supp. 2d 1, 18 (D.D.C. 2002).
In the event that a court were to hear a challenge to a President’s unilateral withdrawal from the North Atlantic Treaty, it may
likely apply the well-established framework for analyzing separation of powers issues derived from Justice Robert Jackson’s
concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). If a court were to determine that a
President’s withdrawal was contrary to a congressional prohibition, it may conclude that the action could be upheld only if
the President has exclusive authority, a claim that the Youngstown framework instructs courts to “scrutinize[] with caution.”
Zivotofsky ex rel. Zivotofsky v. Kerry 576 U.S. 1, 10 (2015). In assessing whether such authority exists, a court might draw on
the Constitution’s text and structure as well as other relevant judicial precedent. Courts also often consider the historical
practice of the political branches in separation of powers cases. See id. at 23. During the 19th century, the political branches
often treated the treaty withdrawal power as a shared one in which both Congress and the President played a role. In the 20th
century, the executive branch increasingly asserted independent authority to withdraw from treaties, and Congress
periodically regulated U.S. participation in treaties. The executive branch does not appear to have asserted a claim of
exclusive presidential authority until the 2020 OLC opinion, and Section 1250A appears to be the first statutory prohibition of
unilateral presidential withdrawal from a treaty. Ultimately, given the absence of directly controlling judicial precedent, in a
case challenging a Section 1250A violation, both parties would be able to present arguments in support of their positions.
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Separation of Powers and NATO Withdrawal
Contents
Introduction ..................................................................................................................................... 1
Background and Legal Framework ................................................................................................. 2
Constitutional Framework ......................................................................................................... 3
Historical Practice ..................................................................................................................... 4
Competing Constitutional Interpretations ................................................................................. 7
The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power .......................... 9
Congressional Rejection of Exclusive Presidential Withdrawal Power in Section
1250A of the 2024 NDAA ....................................................................................................11
Justiciability Issues in Enforcing Section 1250A .......................................................................... 12
Political Question Doctrine ..................................................................................................... 12
Standing .................................................................................................................................. 17
Congressional Standing .................................................................................................... 18
Standing Under Other NATO-Related Statutes................................................................. 20
Constitutional Analysis of Section 1250A .................................................................................... 22
The Supreme Court’s Youngstown Framework for Separation of Powers Cases .................... 22
Zivotofsky ex rel. Zivotofsky v. Kerry ................................................................................ 23
Trump v. United States ...................................................................................................... 26
Possible Application of Supreme Court Jurisprudence to Section 1250A .............................. 27
Constitutional Text and Structure ..................................................................................... 27
Judicial Precedent ............................................................................................................. 28
Historical Practice ............................................................................................................. 31
Considerations for Congress.......................................................................................................... 32
Contacts
Author Information........................................................................................................................ 35
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Separation of Powers and NATO Withdrawal
Introduction
The Constitution expressly sets forth the roles of Congress and the Executive in the making of
treaties, but is silent on the matter of treaty withdrawal.1 During the 19th century, the legislative
and executive branches often treated the treaty withdrawal power as a shared one in which both
branches played a role.2 In the 20th century, the executive branch increasingly asserted
independent authority to withdraw from treaties, and Congress, periodically and to varying
extents, regulated U.S. participation in treaties.3
In 2023, Congress passed, and the President signed into law, the first statute prohibiting the
President from unilaterally withdrawing from a Senate-approved treaty. Section 1250A of the
2024 National Defense Authorization Act4 (2024 NDAA) prohibits the President from
“suspend[ing], terminat[ing], denounc[ing], or withdraw[ing] the United States from the North
Atlantic Treaty”5—which established the North Atlantic Treaty Organization (NATO)6—without
the advice and consent of the Senate or an act of Congress.7 This statute is in tension with the
position taken by the Department of Justice’s Office of Legal Counsel (OLC) in a 2020 opinion
maintaining the President has authority to withdraw the United States from treaties without
congressional approval, and that this authority is exclusive to the presidency.8 The OLC’s claim of
exclusive presidential authority over treaty withdrawal appears to go beyond the executive
branch’s long-standing position that the President had independent authority to withdraw from
treaties absent congressional restriction.9
Prior to the enactment of Section 1250A, reviewing courts generally decided that challenges to
unilateral treaty withdrawal by the President presented a nonjusticiable political question—
meaning that the issue needed to be resolved by the politically accountable legislative and
executive branches rather than in the courts.10 The OLC’s 2020 opinion provided the executive
1 See U.S. CONST. art. II, § 2, cl. 2.
2 See infra “Historical Practice.”
3 See id.
4 National Defense Authorization Act for Fiscal Year 2024, Pub. L. No.118-31, § 1250A,137 Stat. 136, 464‒65 (2023)
(codified at 22 U.S.C. § 1928f).
5 22 U.S.C. § 1928f(a). While a suspension generally refers to a temporary pause in compliance with a treaty,
withdrawal, termination, and denunciation all refer to a permanent exit from the treaty. See, e.g., RESTATEMENT
(FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 313 (AM. L. INST. 2018). Furthermore, a withdrawal
occurs in the context of a multilateral agreement in which one party may withdraw from the agreement, but the
agreement remains in place. A termination occurs in the context of a bilateral agreement in which the withdrawal of a
single party effectively terminates the agreement. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE
UNITED STATES § 155 cmt. c (AM. L. INST. 1965). Lastly, denunciation is largely synonymous with termination, but
frequently follows an accusation that the treaty was breached. See, e.g., Herbert W. Briggs, Unilateral Denunciation of
Treaties: The Vienna Convention and the International Court of Justice, 68 AM. J. INT’L L. 51, 53 (1974).
6 North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243.
7 22 U.S.C. § 1928f(a). The statute provides that “two-thirds of the Senators present” must concur. This statutory
language is similar to the constitutional provision found at Article II, Section 2, clause 2 (“[The President] shall have
Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur.”).
8 Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C.
(2020), https://www.justice.gov/olc/file/1348136/download.
9 See infra “The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power.”
10 See, e.g., Goldwater v. Carter, 444 U.S. 996, 1002–03 (1979) (plurality opinion) (concluding that a challenge to the
President’s authority to unilaterally withdraw from the United States’ mutual defense treaty with Taiwan presented a
nonjusticiable political question); infra note 116 and accompanying text. The political question doctrine is discussed
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branch’s response to this question; in Section 1250A, Congress provided a different response in
the context of a specific treaty—the North Atlantic Treaty. If a President were to withdraw from
the North Atlantic Treaty without congressional approval as required by Section 1250A, and a
challenge were brought that a court agreed to hear, the executive branch might argue, consistent
with the 2020 OLC opinion, that Section 1250A interferes with the President’s exclusive authority
to withdraw from treaties and is thus unconstitutional.11
This report examines the issues that U.S. courts could potentially address if a President were to
assert the authority to withdraw unilaterally from the North Atlantic Treaty notwithstanding
Section 1250A. It begins by providing the background and legal framework governing the
process for treaty withdrawal at the international and U.S. domestic levels. Next, this report
examines historical practices related to treaty withdrawal, which began as a cooperative,
interbranch process, but has evolved into sometimes conflicting legislative and executive branch
positions. This report then analyzes how a court might determine whether it could hear a
challenge to an alleged violation of Section 1250A by applying the political question or standing
doctrines. This report next analyzes how courts might approach the question of whether Section
1250A violates constitutional separation of powers principles if they were to agree to hear a
challenge to a President’s unilateral withdrawal from the North Atlantic Treaty. Finally, this report
proffers some considerations for Congress as it continues to exercise its legislative and oversight
authorities related to treaties.
Background and Legal Framework
Treaties operate under separate international and domestic legal frameworks, and these
frameworks create distinct sets of rules governing how countries enter into, perform, and
withdraw from treaties.12 Generally, under international law, a nation’s head of state has authority
to withdraw from a treaty, provided the treaty permits withdrawal and the specified withdrawal
process is followed.13 Article 13 of the North Atlantic Treaty permits parties to withdraw one year
after providing a “notice of denunciation.”14 Under U.S. domestic law, the legal rules governing
treaty withdrawal are less straightforward and have been the subject of changing practices and
interpretation, as discussed in the following sections.
further infra “Political Question Doctrine.” See also Cong. Rsch. Serv., Overview of the Political Question Doctrine,
Constitution Annotated, https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-1/ALDE_00001283/ (last visited
Feb. 9, 2026).
11 See infra “The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power.”
12 Compare, e.g., Vienna Convention on the Law of Treaties, arts. 7–17, May 23, 1969, 1155 U.N.T.S. 33 (defining the
rules under international law in which all countries, regardless of their domestic legal system, may consent to be bound
by a treaty), with U.S. CONST. art. II, § 2, cl. 2 (defining a specific procedure in U.S. domestic law in which the United
States may become a party to a treaty only after receiving the Senate’s advice and consent). See also Int’l Law
Comm’n, Draft Articles on the Law of Treaties with Commentaries, 1966, arts. 2 cmts. 1, 9, in II YEARBOOK OF THE
INT'L L. COMM’N, 1966, at 187–88, http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf
[hereinafter Commentary on the Law of Treaties] (“[T]he international and constitutional ratifications of a treaty are
entirely separate procedural acts carried out on two different planes.”).
13 See Vienna Convention, supra note 12, art. 67.
14 North Atlantic Treaty, supra note 6, art 13. The full text of Article 13 provides, “After the Treaty has been in force
for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the
Government of the United States of America, which will inform the Governments of the other Parties of the deposit of
each notice of denunciation.” Id.
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Constitutional Framework
Article II of the Constitution sets forth a specific procedure through which the President has the
power to make treaties with the advice and consent of the Senate,15 but is silent as to how treaties
may be terminated. Both Congress and the President possess other constitutional powers related
to foreign affairs, which complicates the analysis of where the power to terminate treaties resides.
Article I of the Constitution grants Congress several foreign-affairs-related powers, including the
power to declare war; establish, fund, and regulate federal armed forces; regulate commerce with
foreign states; “provide for the common Defence”; “define and punish violations of the law of
nations”; “grant Letters of Marque and Reprisal”; “make Rules concerning Captures on Land and
Water”; and “make all laws which shall be necessary and proper for carrying into Execution . . .
all . . . Powers Vested by this Constitution in the [federal] government.”16 Article II vests the
“executive Power” in the President, makes the President “Commander in Chief” of the armed
forces, and authorizes the President to “receive Ambassadors and other public Ministers . . . .”17
Apart from these textual sources, the Supreme Court has stated that both the executive and
legislative branches have broad powers over foreign affairs that are not limited to “affirmative
grants of the Constitution.”18 With regard to the President, the Court has further suggested that
such inherent foreign affairs authority includes certain powers inherent in the role as head of a
sovereign state that appear not to be shared with the legislative branch, such as “the power to
speak or listen as a representative of the nation.”19 Although the Court recognized this presidential
“power to act in foreign affairs does not enjoy any textual detail” in Article II, it determined that
the President’s “executive power” under Article II includes the “vast share of responsibility for
the conduct of our foreign relations.”20
At the same time, the Court has also recognized that the legislative branch has a role in foreign
affairs, emphasizing that Presidents are “not free from the ordinary controls and checks of
Congress merely because foreign affairs are at issue.”21 The Court has further explained that
Congress’s role in foreign affairs must “be understood and respected,” because only Congress
holds the power to make the law regarding both domestic and foreign matters.22
Applying these principles to treaty withdrawals, scholars generally accept that Presidents, by
virtue of their “unique role in communicating with foreign governments,”23 are responsible for
communicating the United States’ intention to withdraw from a treaty.24 Beyond that act of
15 U.S. CONST. art. II, § 2, cl. 2 (“The President . . . shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur[.]”). For background on the treaty-making
process and Supreme Court cases interpreting the Treaty Clause, see Cong. Rsch. Serv., Overview of the President’s
Treaty-Making Power, https://constitution.congress.gov/browse/essay/artII-S2-C2-1-1/ALDE_00012952/ (last visited
Feb. 10, 2026).
16 U.S. CONST. art. I, § 8, cls. 1, 3, 10, 11, 14, 18.
17 U.S. CONST. art. II, §§ 1, 2. Article II also permits the President “to make Treaties” and “appoint Ambassadors [and]
other public Ministers and Consuls,” but only after receiving the Senate’s advice and consent. U.S. CONST. art. II, § 2.
18 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936).
19 Id. at 318‒19.
20 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).
21 Zivotofsky ex rel. v. Kerry, 576 U.S. 1, 21 (2015).
22 Id.
23 Id. at 18.
24 See, e.g., RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 313(1) (AM. L. INST. 2018);
(continued...)
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communication, however, there is long-standing debate over which branch (or branches) of
government have the power to decide that the United States will withdraw from a treaty as a
matter of U.S. domestic law. In particular, the degree to which the Constitution contemplates a
role for the legislative branch to participate in treaty withdrawal decisions has been the source of
changing practices and disagreement among the legislative and executive branches and legal
scholars.
Historical Practice
The past practices related to treaty termination have varied over the years.25 The first time that the
United States terminated a treaty after the Constitution was ratified was in 1798. On the eve of
possible hostilities with France, Congress passed, and President Adams signed, legislation stating
that four U.S. treaties with France “shall not henceforth be regarded as legally obligatory on the
government or citizens of the United States.”26 Thomas Jefferson referred to the episode as
support for the notion that only an “act of the legislature” can terminate a treaty;27 however, many
commentators since have come to view this 1798 statute as a historical anomaly because it is the
only instance in which Congress purported to terminate a treaty directly through legislation
without relying on the President to provide a notice of termination to the foreign government.28
Moreover, because the 1798 statute was part of a series of congressional measures authorizing
limited hostilities against the French Republic, some view the statute as an exercise of Congress’s
war powers rather than precedent for a congressional power to terminate treaties.29
CONG. RSCH. SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, S.
RPT. 106-71, at 199 (2001) (citing Curtiss-Wright, 299 U.S. at 319); WESTEL WOODBURY WILLOUGHBY, 1
CONSTITUTIONAL LAW OF THE UNITED STATES 587 (1929)) (describing the “noncontroversial observation” that, “as the
official spokesperson with other governments, the President is the person who communicates the notice of impending
termination” of international agreements).
25 See, e.g., DAVID GRAY ADLER, THE CONSTITUTION AND THE TERMINATION OF TREATIES 190 (1986) (“There has been
no predominant method of termination, or even a discernible trend. Indeed, the record is checkered.”); V GREEN
HAYWOOD HACKWORTH, DIGEST OF INTERNATIONAL LAW 330 (1943) (“The question as to the authority of the
Executive to terminate treaties independently of the Congress or of the Senate is in a somewhat confused state. . . . No
settled rule or procedure has been followed.”).
26 Act of July 17, 1798, 5 Cong. Ch. 67, 1 Stat. 578 (An Act to declare the treaties heretofore concluded with France, no
longer obligatory on the United States).
27 See THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE 312 (Washington City, Samuel Harrison Smith
ed., 1801) [hereinafter JEFFERSON’S MANUAL].
28 See, e.g., Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 TEX. L. REV. 773, 782 (2014);
RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 313, reporters n.2 (AM. L. INST. 2018);
CONG. RSCH. SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, S.
RPT. 106-71, at 207 (2001).
29 See S. REP. NO. 34-97, at 5 (1856) (Senate Foreign Relations Committee describing the 1798 treaty abrogation statute
as a “rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress
alone, and under any circumstances, the power to annul a treaty.”). Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800)
(opinion of Washington, J.) (treating the 1798 statute as one in a bundle of congressional acts declaring a limited
“public war” on the French Republic).
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During the 19th century, the general practice was to treat the power to terminate treaties as shared
between the legislative and executive branches.30 Congress often authorized31 or instructed32 the
President to provide notice of treaty termination to foreign governments during this time. On rare
occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty. 33
Presidents regularly complied with the legislative branch’s authorization or direction. For
example, after Congress enacted a joint resolution calling for the termination of the Oregon
Territory Treaty, then-Secretary of State (and future President) James Buchanan informed the
U.S. Ambassador to Great Britain that “Congress have spoken their will upon the subject, in their
joint resolution; and to this it is his (the President’s) and your duty to conform.”34 On other
occasions, Congress or the Senate approved the President’s termination after-the-fact, when the
executive branch had already provided notice of termination to the foreign government.35
At the turn of the 20th century, the practice regarding treaty termination began to change, and a
new form emerged: unilateral termination by the President without approval by the legislative
branch. This method first occurred in 1899, when the McKinley Administration terminated
certain articles in a commercial treaty with Switzerland,36 and again in 1927, when the Coolidge
Administration withdrew the United States from a convention with Mexico regarding the
prevention of smuggling.37 Some Members of Congress questioned the constitutionality of this
practice,38 and the executive branch acknowledged in a 1909 memorandum that joint action
between the President and Congress was the more “effective and unquestionable” method to
terminate a treaty.39 Despite these mixed views, unilateral presidential termination increased
30 For analysis of 19th century understanding and practice related to treaty termination, see Bradley, supra note 28, at
788–801; SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 423–66 (2d ed. 1916).
31 See, e.g., Joint Resolution of Apr. 27, 1846, 9 Stat. 109 (concerning the Oregon Territory, providing that the
President “is hereby authorized, at his discretion, to give to the government of Great Britain the notice required by” a
convention allowing for joint occupancy of parts of the Oregon Territory); Joint Resolution of June 17, 1874, 18 Stat.
287 (authorizing the President to give notice of termination of a Treaty of Commerce with Belgium).
32 See, e.g., Joint Resolution of Jan. 18, 1865, 13 Stat. 566; Joint Resolution of Mar. 3, 1883, 22 Stat. 641.
33 In 1855, the Senate authorized President Franklin Pierce to terminate a Friendship, Commerce, and Navigation
Treaty with Denmark, and the President subsequently relied on the Senate’s action in carrying out the termination.
Franklin Pierce, Third Annual Message (Dec. 31, 1855), in 7 A COMPILATION OF THE MESSAGES AND PAPERS OF THE
PRESIDENTS 2860, 2867 (James D. Richardson ed., 1897).
34 S. DOC. NO. 29-489, at 15 (1846).
35 See, e.g., Joint Resolution to Terminate the Treaty of 1817 Regulating the Naval Force on the Lakes, 13 Stat. 568
(1865).
36 See Letter from John Hay, U.S. Sec’y of State, to Ambassador Leishman (Mar. 8, 1899), in PAPERS RELATING TO THE
FOREIGN RELATIONS OF THE UNITED STATES, 753–54 (1901).
37 See Letter from Frank B. Kellogg, U.S. Sec’y of State, to Ambassador Sheffield (Mar. 21, 1927), in 3 PAPERS
RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1927, at 230, 230–31 (1942).
38 Compare, e.g., 58 CONG. REC. 8076 (1919) (statement of Sen. Walsh) (“I cannot believe that anybody would
entertain any serious doubt” that the President must obtain congressional authorization for treaty withdrawal); with id.
at 8122 (statement of Sen. Spencer) (“[I]f the President of the United States saw fit to give notice of withdrawal, that
withdrawal would be effective. If it was in violation of or in contradiction of the wishes of the Congress at the time . . .
it would not deprive him of his power.”); and id. at 8125 (statement of Sen. Robinson) (contending that the “customary
method” of treaty withdrawal involves concurrence of the President and both Houses of Congress, but there may be
exceptional cases where the President has unilateral termination power).
39 Memorandum from James Brown Scott, Solicitor, U.S. Dep’t of State (June 12, 1909), in V DIGEST OF
INTERNATIONAL LAW, supra note 25, at 319 (1943). See also Memorandum from R. Walton Moore, Acting U.S. Sec’y
of State, to President Roosevelt 2 (November 9, 1936) (on file with author) (“The question as to the authority of the
Executive to terminate treaties independently of Congress or of the Senate is in a somewhat confused state.”).
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during the Franklin Roosevelt Administration and World War II.40 Over the course of the 20th
century, unilateral presidential termination generally became the norm41—both for treaties that
contain withdrawal clauses and those that do not.42
While the U.S. practice since the turn of the 20th century has trended toward unilateral
presidential treaty withdrawal, the practice has not been uniform. Congress has enacted
legislation authorizing or instructing the President to terminate treaties and other international
agreements,43 and there are a number of cases in which Presidents relied upon and complied with
these congressional directives.44 Members of Congress have also occasionally raised
constitutional objections to the President’s unilateral treaty withdrawal.45 In 2019, Congress
enacted legislation requiring the President to notify Congress at least 120 days before
withdrawing the United States from the Treaty on Open Skies.46 In 2020, President Trump
notified the treaty parties of the United States’ intent to withdraw without complying with the
statutorily required 120-day congressional notice period.47 As discussed below, the OLC argued in
40 See, e.g., Withdrawal of the United States from the International Convention for the Abolition of Import and Export
Prohibitions and Restrictions, June 14, 1933, in U.S. DEP’T OF STATE, I FOREIGN RELATIONS OF THE UNITED STATES,
DIPLOMATIC PAPERS 1933, at 783 (1950); Telegram from the Acting Secretary of State to the U.S. Ambassador in Italy,
Dec. 10, 1936, in U.S. DEP’T OF STATE, II FOREIGN RELATIONS OF THE UNITED STATES, DIPLOMATIC PAPERS 1936, at
356 (1954) (terminating commercial treaty with Italy); Armament Reduction, 1 DEP’T ST. BULL. 354
(1939) (suspending obligations under the London Naval Treaty); Int’l Load Line Convention, 40 U.S. Op. Atty. Gen.
119 (1941) (opining that the President could declare the International Load Line Convention inoperative).
41 See, e.g., OFFICE OF THE LEGAL ADVISOR, U.S. DEP’T OF STATE, 2002 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW, at 202-206 (compiling a list of treaties terminated unilaterally by the President since 1980).
42 Compare, e.g., OFFICE OF THE LEGAL ADVISOR, U.S. DEP’T OF STATE, 2018, at 112-13 (termination of Treaty of
Amity, Economic Relations, and Consular Rights with Iran pursuant to termination clause); with OFFICE OF THE LEGAL
ADVISOR, U.S. DEP’T OF STATE, 2005, at 30-31 (withdrawal from Optional Protocol to the Vienna Convention on
Consular Relations, which does not include a withdrawal clause).
43 See, e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440 § 313, 100 Stat. 1086, 1104 (mandating
that “[t]he Secretary of State shall terminate immediately” a tax treaty and protocol with South Africa), repealed by
South African Democratic Transition Support Act of 1993, Pub. L. No. 103-149, § 4, 107 Stat. 1503, 1505; Fishery
Conservation and Management Act of 1976, Pub. L. No., 94-265 § 202(b), 90 Stat. 331, 340–41 (authorizing the
Secretary of State to renegotiate certain fishing treaties and expressing the “sense of Congress that the United States
shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a
reasonable period of time after such date of enactment”); Trade Agreements Extension Act of 1951, Pub. L. No. 82-50
§ 5, 65 Stat. 72, 73 (directing the President to “take such action as is necessary to suspend, withdraw or prevent the
application of” trade concessions contained in prior trade agreements regulating imports from the Soviet Union and
“any nation or area dominated or controlled by the foreign government or foreign organization controlling the world
Communist movement.”).
44 See South African Airways v. Dole, 817 F.2d 119, 121 (D.C. Cir. 1987) (discussing the Reagan Administration’s
termination of an air services agreement with South Africa as required by the Comprehensive Anti-Apartheid Act of
1986), cert denied, 484 U.S. 896 (1987); RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 313 reporters’ n. 3 (AM. L. INST. 2018) (discussing the Truman and Ford Administration’s reliance on statutory
authorities to terminate certain treaties).
45 See, e.g., Barry M. Goldwater, Treaty Termination is a Shared Power, 65 A.B.A. J. 198, 198–201 (1979).
46 See National Defense Authorization Act for Fiscal Year 2020, Pub. L No. 116-92, § 1234, 133 Stat. 1198, 1649
(codified at 22 U.S.C. § 2593a note) (requiring the President to notify the appropriate congressional committees “[n]ot
later than 120 days before the provision of notice of intent to withdraw the United States from the Open Skies Treaty to
either treaty depository pursuant to Article XV of the Treaty.”
47 The Trump Administration notified Congress of the President’s intent to withdrawal on the same day that it notified
the treaty parties of the United States’ intent to withdraw. Compare Congressionally Mandated Notice Period for
Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. 184, 196–98 (2020),
https://www.justice.gov/olc/file/1348136/dl?inline (“On May 22, 2020, the Secretary of State and the Secretary of
Defense advised Congress that the President had determined that it was no longer in the national security interest for
the United States to remain a party to the Open Skies Treaty.”), with U.S. Dep’t of State, United States Withdrawal
(continued...)
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a 2020 opinion that this statutory notice requirement was an unconstitutional infringement on the
President’s exclusive power to withdraw from treaties.48 Most unilateral withdrawals have not
generated congressional opposition, and Congress did not enact legislation or a resolution
formally opposing the President’s withdrawal from a particular treaty until it enacted Section
1250A in 2023; however, some Members have filed suit challenging the constitutionality of
unilateral withdrawal.49 As discussed in more detail below, courts thus far have dismissed these
challenges on justiciability grounds without reaching the merits of the constitutional question.50
Competing Constitutional Interpretations
Government officials in the legislative and executive branches and scholars have expressed
differing views about the branches’ respective roles in treaty termination. Some have argued that
the President possesses the powers to withdraw unilaterally from treaties based on Supreme Court
case law describing the President as the “sole organ”51 of the nation in matters related to foreign
affairs52 and pursuant to the “executive Power” conveyed to the President in Article II, Section 1
of the Constitution.53 Other proponents of executive authority have likened the power to withdraw
from treaties to the President’s power to remove executive officers.54 Although the Appointments
Clause requires senatorial advice and consent for the appointment of certain executive officers,
the Supreme Court has held that the President has significant unilateral authority to remove those
from the Treaty on Open Skies (July 6, 2020), https://2017-2021.state.gov/united-states-withdrawal-from-the-treaty-onopen-skies/ (“On May 22, the United States provided [the treaty depositaries) notice of its decision to withdraw from
the Treaty on Open Skies pursuant to paragraph 2 of Article XV.”).
48 See Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. at 194;
infra “The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power.”
49 See, e.g., Goldwater v. Carter, 481 F. Supp. 949 (1979); Complaint for Declaratory Relief Preliminary Statement at
4, Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002) (No. 1:02CV01137), 2002 WL 32968622 (“In this action 31
Members of Congress seek a declaratory judgment that the President’s proposed termination of the Treaty on the
Limitation of Anti-Ballistic Missile Systems (“the ABM Treaty”) is unconstitutional and of no effect because of the
President’s failure to seek and obtain the assent of Congress.”); see also infra notes 100‒105 and accompanying text;
infra note 116.
50 See infra “Justiciability Issues in Enforcing Section 1250A.”
51 United States v. Curtiss Wright Export Corp. 299 U.S. 304, 319‒20 (1936) (“[W]e are here dealing not alone with an
authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate,
plenary and exclusive power of the President as the sole organ of the federal government in the field of international
relations—a power which does not require as a basis for its exercise an act of Congress . . . .”).
52 See, e.g., Bradley, supra note 28, at 782 (discussing the application of the President’s role as the “sole organ” of
communications to the concept of treaty termination); MEMORANDUM FROM JOHN C. YOO, DEPUTY ASSISTANT ATT’Y
GEN. & ROBERT J. DELAHUNTY, SPECIAL COUNSEL, OLC, U.S. DEP’T OF JUSTICE, TO JOHN BELLINGER, III, SENIOR
ASSOC. COUNSEL TO THE PRESIDENT & LEGAL ADVISER TO THE NAT’L SEC. COUNCIL, AUTHORITY OF THE PRESIDENT TO
SUSPEND CERTAIN PROVISIONS OF THE ABM TREATY 7 (Nov. 15, 2001) [hereinafter YOO & DELAHUNTY
MEMORANDUM], http://www.justice.gov/olc/docs/memoabmtreaty11152001.pdf (“The President’s power to terminate
treaties must reside in the President as a necessary corollary to the exercise of the President’s other plenary foreign
affairs powers.”). The OLC in the Department of Justice later disavowed unrelated portions of the Yoo & Delahunty
Memorandum, but it continued to maintain that the President may unilaterally suspend a treaty where suspension is
permitted “by the terms of the treaty or under recognized principles of international law.” See MEMORANDUM OF
STEVEN G. BRADBURY, PRINCIPAL DEPUTY ASSISTANT ATT’Y GEN., STATUS OF CERTAIN OLC OPINIONS ISSUED IN THE
AFTERMATH OF THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, at 8–9 (Jan. 15, 2009), https://www.justice.gov/sites/
default/files/opa/legacy/2009/03/09/memostatusolcopinions01152009.pdf.
53 See, e.g., MICHAEL D. RAMSEY, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 158–59 (2007); YOO & DELHUNTY
MEMORANDUM, supra note 52, at 3–13.
54 See Bradley, supra note 28, at 781–82; Kristen E. Eichensehr, Treaty Termination and the Separation of Powers, 53
VA. J. INT’L L. 247, 269–71 (2013).
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officers.55 The Treaty Clause immediately precedes the Appointments Clause, and some executive
branch officials and legal scholars have argued the same principles that allow the President to
undo appointments that are made with the Senate’s consent support the view that the President
may unilaterally terminate treaties, which are also entered into with the Senate’s consent.56
Since the turn of the 20th century, officials in the executive branch have adopted variations of
these arguments and consistently taken the position that the Constitution permits the President to
withdraw from treaties without receiving express approval from the legislative branch.57 The
prevailing view among foreign relations law scholars appears to be that the President may
unilaterally withdraw from treaties if it is permitted by the treaty or other international laws and
Congress has not expressly prohibited it.58
Some Members of Congress and a smaller group of observers have advanced a more limited view
of presidential power, arguing that the Constitution requires the legislative branch’s approval for
the President to withdraw from a treaty that received the Senate’s advice and consent. According
to these advocates for a congressional role, treaty termination should be considered analogous to
the termination of federal statutes because the Supremacy Clause includes both treaties and
statutes as sources of the “supreme Law of the Land.”59 Thus, those advancing this view reason
that, because domestic statutes may be terminated only through the same process in which they
were enacted—i.e., through a majority vote in both houses and with the signature of the President
or veto override60—treaties must be terminated through a procedure that is symmetrical to their
making and that includes, at a minimum, the Senate’s consent.61
Although there was little direct discussion of the treaty termination power at the Constitutional
Convention,62 some documents from the early constitutional era arguably support the view that
55 See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197, 238 (2020) (holding that Congress
does not have authority to limit the President’s authority to remove “principal officers who, acting alone, wield
significant executive power”); Free Enter. Fund v. PCAOB, 561 U.S. 477, 483 (2010) (“Since 1789, the Constitution
has been understood to empower the President to keep [executive] officers accountable—by removing them from
office, if necessary.”). For background on the President’s removal power, see Overview of Removal of Executive
Officers, Constitution Annotated, https://constitution.congress.gov/browse/essay/artII-S2-C2-3-15-1/ALDE_00013107/
(last visited Feb. 20, 2025).
56 See, e.g., YOO & DELHUNTY MEMORANDUM, supra note 52, at 3–13; Bradley, supra note 28, at 781–82.
57 See CRS Report R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and
the Iran Nuclear Agreement, by Stephen P. Mulligan, at 9 n.70 (2018) (citing memoranda from the executive branch
from 1909 through 2001); see also Authority to Withdraw from the North American Free Trade Agreement, 42 Op.
O.L.C. 133, 142, 145 (2018) (“Over the course of time, historical practice shifted towards the view that the President
could terminate a treaty without congressional authorization. . . . The President . . . need not return to Congress before
terminating or withdrawing from a treaty according to its terms.”).
58 See, e.g., RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 313(1) (AM. L. INST. 2018);
LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 214 (2d ed. 1996).
59 U.S. CONST. art. VI, cl. 2; see, e.g., Goldwater, supra note 45, at 199–200 (analyzing “evidence that the framers
linked the repeal of treaties to the repeal of statutes”); Petition for Writ of Certiorari to the U.S. Court of Appeals for
the D.C. Circuit at 15, Goldwater v. Carter, 444 U.S. 996 (1979) (No. 79-856) (“Federal statutes are part of the
Supreme Law of the Land, yet they are repealed by the same process by which they are made (although the
Constitution does not expressly say so). Why should treaties, which are on an equal footing with statutes, be any
different?”); ADLER, supra note 25, at 106–10 (arguing that the Framers would have understood treaties to be
terminable pursuant to a “symmetrical rule of construction” whereby they could be unmade only in the same way that
they were made).
60 See, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“There is no provision in the Constitution that
authorizes the President to enact, to amend, or to repeal statutes.”); INS v. Chadha, 462 U.S. 919, 954 (1983)
(“[R]epeal of statutes, no less than enactment, must conform with Art. I.”).
61 See, e.g., Goldwater, supra note 45, at 199–200; ADLER, supra note 25, at 106–10.
62 See Eichensehr, supra note 54, at 249; ADLER, supra note 25, at 84.
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the legislative branch should participate in treaty withdrawal.63 In a 1791 letter, James Madison
questioned whether a treaty with Great Britain could be terminated by the President and Senate or
whether the “whole Legislature” must participate in its annulment—but he did not mention the
possibility of unilateral termination by the Executive.64 In Ware v. Hylton, a 1796 Supreme Court
decision concerning the legal effect of treaties on conflicting state laws, one Justice expressed the
view that only Congress has the ability to declare a treaty void as a result of a breach. 65 In his
Manual of Parliamentary Practice, Thomas Jefferson wrote in 1801 that “[t]reaties being
declared, equally with the laws of the United States, to be the supreme law of the land, it is
understood that an act of the legislature alone can declare them infringed and rescinded.”66
Proponents of executive authority have responded to this proposition by arguing that the
Supremacy Clause’s purpose was to establish the primacy of treaties and federal statutes over
state law—not to deem treaties and statutes identical in all respects.67 In addition, they argue,
treaties do not share every feature of federal statutes.68 Whereas statutes can be enacted over the
President’s veto, treaties can never be concluded without the Senate’s advice and consent.69
Moreover, when exercising its veto-override power, Congress is the final actor in making U.S.
domestic laws. In the treaty-making process, however, the President must take the final step in
committing that the United States will be bound by the terms of the treaty by submitting a signed
instrument of ratification after the Senate provides its advice and consent.70
The Executive Branch’s 2020 Claim to Exclusive Treaty
Withdrawal Power
In a 2020 opinion from the Department of Justice’s OLC, the executive branch publicly took the
view, for what appears to be the first time,71 that the President’s authority to withdraw from
63 For analysis of founding-era history, see Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty,
75 NW. U. L. REV. 577, 580-89 (1980); HENKIN, supra note 58, at 212 & n.139.
64 Letter from James Madison to Edmund Pendleton (Jan. 2, 1791), http://presspubs.uchicago.edu/founders/documents/a6_2s20.html.
65 Ware v. Hylton, 3 U.S. (3 Dall.) 199, 261 (1796) (opinion of Iredell, J.) (“[I]f a treaty be violated by one party, it is at
the option of the other party . . . to declare . . . that the treaty is void. If Congress, therefore, (who, I conceive, alone
have such authority under our Government) shall make such a declaration . . . I shall deem it my duty to regard the
treaty as void, and then to forbear any share in executing it as a Judge.”); Goldwater, supra note 45, at 201 (discussing
Justice Iredell’s opinion in Ware). But see Charlton v. Kelly, 222 U.S. 447, 473-76 (1913) (stating that, because the
“Executive Department . . . elected to waive any right to free itself” from its obligations under an extradition treaty, the
Supreme Court must enforce the treaty even if it had been breached and made voidable, and thereby suggesting that, at
least in the absence of direction from Congress, the President has the power to waive treaty violations).
66 JEFFERSON’S MANUAL, supra note 27, at 312.
67 See, e.g., Louis Henkin, Litigating the President’s Power To Terminate Treaties, 73 AM. J. INT’L L. 647, 653 (1979)
(“One of the arguments made against presidential power is that treaties are the supreme law of the land and it takes a
legislative act to repeal a law. This argument, I submit, plays with words. The provision in Article VI that treaties are
‘the supreme law of the land’ is addressed to the courts, and principally for the purpose of declaring treaties supreme in
relation to state law and policy.”); Eichensehr, supra note 54, at 267 (“[T]he Supremacy Clause’s purpose is to
establish the primacy of treaties and federal statutes over state law and that their equivalence vis-à-vis state law does
not indicate that their method of termination is or should be identical.”).
68 See, e.g., John Yoo, Politics As Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty
Interpretation, 89 CAL. L. REV. 851, 878 (2001).
69 Compare U.S. CONST. art. I, § 7 with id. art. II, § 2, cl 2.
70 See, e.g., CRANDALL, supra note 30, at 81; RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 303(3) (AM. L. INST. 2018). For examples of treaties approved by the Senate that Presidents have declined to
ratify, see CRANDALL, supra note 30, at 97‒99.
71 See supra note 57.
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treaties is an exclusive presidential power that Congress cannot restrict through legislation.72 The
opinion addressed a statutory provision that required the President to provide notice to Congress
at least 120 days before notifying the other state parties that the United States intended to
withdraw from the Treaty on Open Skies.73 Contending that congressional control of treaty
withdrawal interferes with the President’s “exclusive authority to execute treaties and to conduct
diplomacy,” OLC concluded that the statutory requirement of a congressional-notice period was
unconstitutional.74 Deciding whether to withdraw from a treaty is a “quintessentially executive”
choice that is committed to the President’s discretion, OLC opined.75 Although not binding on
courts or Congress,76 OLC legal opinions have historically been treated as binding within the
executive branch.77
Following the United States’ withdrawal in contravention of the statutory notice requirement,78
some Members of Congress expressed criticism of the executive branch’s decision not to comply
with the congressional notification requirement,79 and bill text was introduced expressing the
sense of Congress that the withdrawal violated federal law, but that text was not enacted.80 In
addition, Congress did not take any formal action after the withdrawal.
72 Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. 184, 196–98
(2020), https://www.justice.gov/olc/file/1348136/dl?inline.
73 National Defense Authorization Act for Fiscal Year 2020, Pub. L No. 116-92, § 1234, 133 Stat. 1198, 1649 (codified
at 22 U.S.C. § 2593a note).
74 Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. at 213–14.
75 Id. at 196.
76 See, e.g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 285–86 (1960) (declining to follow an Attorney
General opinion and explaining that such opinions are entitled to some weight but do not have the force of judicial
decisions).
77 MEMORANDUM FROM DAVID J. BARRON, ACTING ASSISTANT ATT’Y GEN., OLC, TO ATT’YS OF THE OFFICE, RE: BEST
PRACTICES FOR OLC LEGAL ADVICE AND WRITTEN OPINIONS 1 (July 16, 2010), https://www.justice.gov/olc/pdf/olclegal-advice-opinions.pdf. For a discussion of the statutory and historical underpinnings of the authority of OLC
opinions for the executive branch, see Arthur H. Garrison, The Opinions by the Attorney General and the Office of
Legal Counsel: How and Why They Are Significant, 76 ALB. L. REV. 217 (2012).
78 See supra notes 46‒48 and accompanying text.
79 See, e.g., Engel & Smith Denounce Trump Administration’s Illegal Withdrawal from Open Skies Treaty (May 22,
2020), https://democrats-foreignaffairs.house.gov/2020/5/engel-smith-denounce-trump-administration-s-illegalwithdrawal-from-open-skies-treaty; Letter from Rep. Adam Smith et al. to Mark T. Esper, Sec’y, U.S. Dep’t of Def.,
May 22, 2020, https://democrats-armedservices.house.gov/_cache/files/a/2/a2186721-db29-4324-acb48cf6784dc985/85E3C84EC3080246B5541FF09F1CED30.20200522-hasc-ost-letter-secesper.pdf; Ranking Member
Menendez Statement on Trump Administration’s Withdrawal from the Open Skies Treaty (May 20, 2020),
https://www.foreign.senate.gov/press/dem/release/ranking-member-menendez_statement-on-trump-administrationswithdrawal-from-the-open-skies-treaty.
80 See H. Amdt. 846 to H.R. 6395, 116th Cong. (2020) (proposed provision expressing the sense of Congress that the
withdrawal from the Open Skies Treaty did not comply with statutory requirements); see also Helsinki Commission
Chairman Amends NDAA to Reflect Support for Open Skies Treaty (July 22, 2020),
https://www.csce.gov/articles/helsinki-commission-chairman-amends-ndaa-reflect-support-open-skies-treaty/. The
United States’ withdrawal remains effective. See Government of Canada (treaty depositary), Treaty List, Treaty on
Open Skies, Helsinki, 24 March 1992, https://www.treatyaccord.gc.ca/details.aspx?lang=eng&id=102747&t=639062448990851409 (last visited Feb. 9, 2026) (indicating the
United States withdrawal was effective on November 22, 2020). In the year after the U.S. withdrawal, legislation was
introduced “call[ing] on the administration to consider continued participation in the Treaty on Open Skies.” H. Res.
54, 117th Cong (2021).
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Congressional Rejection of Exclusive Presidential Withdrawal
Power in Section 1250A of the 2024 NDAA
In what might be understood as a rejection of the executive branch’s position that the President
possesses exclusive power over treaty withdrawal, in 2023, Congress enacted what appears to be
the first statute prohibiting the President from unilaterally withdrawing from a treaty (specifically,
the North Atlantic Treaty).81 Section 1250A of the 2024 NDAA provides that the President “shall
not suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty”
without the advice and consent of the Senate, with two-thirds of Senators present concurring, or
pursuant to an act of Congress.82 Additionally, the statute prohibits use of appropriated funds to
withdraw from the North Atlantic Treaty without the advice and consent of the Senate, with twothirds of Senators present concurring or pursuant to an act of Congress.83 Section 1250A also
requires the President to consult with the House and Senate foreign affairs committees “in
relation to any initiative” to withdraw the United States from the North Atlantic Treaty, and to
notify those committees “of any deliberation or decision” to withdraw from the North Atlantic
Treaty “as soon as possible but in no event later than 180 days prior to taking such action.”84 To
date, the 2020 OLC opinion has not been withdrawn, suggesting that the executive branch may
maintain that the President has exclusive treaty withdrawal power, including power to unilaterally
withdraw from the North Atlantic Treaty.85
Changing Practice in Treaty Withdrawal Paradigms
The United States’ treaty withdrawal practice can be summarized in several key events and stages.
Congressional Termination (1798). The United States’ first treaty withdrawal after the Constitution’s
adoption took place pursuant to legislation stating that four treaties “shall not henceforth be regarded as legally
obligatory on the government or citizens of the United States.”86
Shared Withdrawal Power (19th century). Treaty withdrawal was treated as a shared power between the
legislative and executive branches, and both branches authorized or approved withdrawal.87
Shift to Unilateral Presidential Power (20th century to present). Unilateral withdrawal by the executive
branch becomes the predominant practice.88
81 22 U.S.C. § 1928f(a); see also Kaine & Rubio Applaud Adoption of Their Amendment to the NDAA to Prevent Any
U.S. President from Leaving NATO (July 13, 2023), https://www.kaine.senate.gov/press-releases/kaine-and-rubioapplaud-adoption-of-their-amendment-to-the-ndaa-to-prevent-any-us-president-from-leaving-nato (quoting Sen. Rubio
as stating that the amendment “ensure[s] that current and future U.S. Presidents cannot leave NATO without rigorous
debate and consideration by the U.S. Congress with the input of the American people”); Final Package Includes
McClellan Amendments (Dec. 14, 2023), https://mcclellan.house.gov/media/press-releases/mcclellan-helps-pass-ndaafully-fund-military (describing provision as an endeavor to “prevent any U.S. President from unilaterally withdrawing
from NATO without congressional approval”).
82 22 U.S.C. § 1928f(a).
83 Id. § 1928f(b).
84 Id. § 1928f(c).
85 See supra note 77 and accompanying text. Although in a statement issued in conjunction with signing the 2024
NDAA, President Biden noted constitutional objections to a number of sections in the statute, such as restrictions on
the transfer of Guantánamo Bay detainees and requirements to submit reports that could reveal classified information,
he did not mention Section 1250A. See Presidential Statement on Signing the NDAA for Fiscal Year 2024, 2023 DAILY
COMP. PRES. DOC. 1145 (Dec. 22, 2023).
86
See supra notes 26–29 and accompanying text.
87 See supra notes 30–35 and accompanying text.
88 See supra notes 36–49 and accompanying text.
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Claim of Presidential Exclusivity (2020). In an OLC opinion, the executive branch claimed exclusive
constitutional authority to withdraw from treaties and asserted that Congress cannot limit or condition this
power in legislation.89
Congressional Rejection of Presidential Exclusivity (2023). In Section 1250A of the 2024 NDAA,
Congress provided that the President cannot withdraw from the North Atlantic Treaty without congressional or
Senatorial consent.90
Justiciability Issues in Enforcing Section 1250A
Before addressing the constitutional analysis that a court would likely apply in a case involving a
challenge to a President’s withdrawal from the North Atlantic Treaty, there is the initial question
of whether a court would intervene in the first place or instead deem the issue improper for
judicial resolution based on one or more justiciability doctrines. Many cases involving issues of
foreign affairs face significant justiciability hurdles that often have led courts to decline to weigh
in on the merits. Two of the principal justiciability doctrines that have resulted in dismissal of
cases involving foreign affairs, including challenges to a President’s unilateral withdrawal from
treaties, are the political question and standing doctrines.91 Both doctrines are based on the
separation of powers between federal courts and the political branches; the Supreme Court has
developed the law governing each based on its interpretation of the scope of judicial power
granted in Article III of the Constitution.92 If a President sought to withdraw from the North
Atlantic Treaty, but did not obtain approval through the advice and consent of the Senate or an act
of Congress, it is possible that the executive branch would invoke the political question and
standing doctrines as bases to dismiss any lawsuits seeking to enforce Section 1250A.
Political Question Doctrine
The Supreme Court developed the political question doctrine based on its determination that
Article III grants the judicial branch the power to decide “cases” and “controversies,”93 and this
power precludes courts from deciding so-called “political questions”—a term that the Court uses
to refer to questions that are reserved to the political branches.94 In the 1962 case Baker v. Carr,95
89 See supra “The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power.”
90 See supra “Congressional Rejection of Exclusive Presidential Withdrawal Power in Section 1250A of the 2024
NDAA.”
91 See infra notes 97 & 116.
92 See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (“The law of Article III standing, which is built
on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the
political branches.”); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (“[T]he
concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the ‘case or
controversy’ requirement of Art. III, embodies both the standing and political question doctrines.”).
93 U.S. CONST. art. III, § 2, cl. 1.
94 See, e.g., Flast v. Cohen, 392 U.S. 83, 94−95 (1968) (explaining that “the words ‘cases’ and ‘controversies’ . . .
define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not
intrude into areas committed to the other branches of government” and are “give[n] expression” in justiciability
doctrines such as the political question doctrine); Baker v. Carr, 369 U.S. 186, 210−11 (1962) (“The nonjusticiability of
a political question is primarily a function of the separation of powers. . . . Deciding whether a matter has in any
measure been committed by the Constitution to another branch of government, or whether the action of that branch
exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution.”).
95 369 U.S. 186 (1962).
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the Supreme Court articulated a factor-based analysis for courts to use in determining whether a
case presents a political question.
The Baker v. Carr Factors
Under Baker v. Carr, political questions might involve the following features:
•
an issue with “a textually demonstrable constitutional commitment” to the political branches;
•
the absence of “judicially discoverable and manageable standards for resolving” the case;
•
a need to make policy determinations that are not fit for judicial discretion;
•
potential expression of lack of respect for the political branches;
•
an unusual need for adherence to a political decision that has already been made; and
•
potential embarrassment from inconsistent pronouncements from different branches of government.96
Although courts have frequently dismissed cases involving foreign policy issues on the ground
that they present a political question, courts generally state that they arrive at those conclusions
based on the Baker analysis rather than based on the mere fact that the case involves foreign
policy.97 As the Supreme Court stated in Baker, the political question doctrine “is one of ‘political
questions,’ not one of ‘political cases’”;98 thus, “it is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.”99
In the most prominent treaty-withdrawal case to date and the only one that has reached the
Supreme Court—Goldwater v. Carter100—a plurality of the Justices concluded that dismissal was
appropriate based on the political question doctrine.101 That case arose during the 1970s when the
executive branch was pursuing closer relations with the government of the People’s Republic of
China (PRC).102 Anticipating that, as part of its efforts to normalize relations with the PRC, the
executive branch might terminate the 1954 Mutual Defense Treaty with the government of
Taiwan,103 Congress enacted the International Security Assistance Act, which, among other
things, expressed “the sense of the Congress that there should be prior consultation between the
Congress and the executive branch on any proposed policy changes affecting the continuation in
force of the Mutual Defense Treaty of 1954.”104 When the Carter Administration announced that
the United States would provide notice to Taiwan of its intent to terminate the treaty without
96 Id. at 217.
97 See, e.g., Goldwater v. Carter, 444 U.S. 996, 1002–03 (1979) (plurality opinion) (concluding that a challenge to the
President’s authority to unilaterally withdraw from the United States’ mutual defense treaty with Taiwan presented a
nonjusticiable political question); Crockett v. Reagan, 720 F.2d 1355, 1356–57 (D.C. Cir. 1983) (affirming dismissal
on political question grounds of suit brought by Members of Congress challenging President Reagan’s deployment of
U.S. troops to Nicaragua without providing a notification to Congress pursuant to the War Powers Resolution); Smith
v. Obama, 217 F. Supp. 3d 283, 288, 297, 302−04 (D.D.C. Cir. 2016) (dismissing on both political question and
standing grounds a case challenging the constitutionality of President Obama’s military campaign against the Islamic
State of Iraq and the Levant (ISIL), vacated sub nom. Smith v. Trump, 731 F. App’x 8 (D.C. Cir. 2018)); Ange v. Bush,
752 F. Supp. 509, 510 (D.D.C. 1990) (dismissing challenge to President George H.W. Bush’s authority to deploy
servicemembers to the Persian Gulf during the First Gulf War as a nonjusticiable political question).
98 Baker, 369 U.S. at 217.
99 Id. at 211.
100 Goldwater v. Carter, 444 U.S. 996 (1979).
101 See id. at 1002‒06 (plurality opinion).
102 For additional background on Goldwater v. Carter, see ADLER, supra note 25, at 248–306 and VICTORIA MARIE
KRAFT, THE U.S. CONSTITUTION AND FOREIGN POLICY: TERMINATING THE TAIWAN TREATY 1–52 (1991).
103 Mutual Defense Treaty Between the United States of America and the Republic of China, Dec. 2, 1954, 6 U.S.T.
433 [hereinafter Taiwan Mutual Defense Treaty].
104 International Security Assistance Act of 1978, Pub. L. No. 95-384, § 26(b), 92 Stat. 730, 746.
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having first obtained congressional consent,105 some Members of Congress filed a lawsuit seeking
to block the President’s action on the ground that the President lacked the constitutional authority
to unilaterally terminate the treaty.106
The U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District
of Columbia both held that the suit was justiciable, but they came to opposite conclusions on the
merits. While the district court determined that the treaty power was a shared one and thus the
President’s unilateral withdrawal was unconstitutional,107 the appellate court reversed based on its
holding that the President’s unilateral withdrawal from the particular treaty at issue was
constitutional based on the circumstances involved in the case.108 The Supreme Court granted the
Members of Congress’s petition for a writ of certiorari, but did not reach the merits of the
constitutional question.109 Instead, in a divided opinion, the Court vacated the appellate court’s
decision and remanded the case to the district court with instructions to dismiss the complaint.110
Writing for a four-Justice plurality, Justice Rehnquist concluded that the case should be dismissed
because the constitutional question over treaty withdrawal was a nonjusticiable political
question.111 In reaching this conclusion, the plurality relied primarily on the second Baker
factor—a lack of judicially discoverable and manageable standards for resolving” the case.112 The
plurality reasoned that, because the Constitution did not expressly address treaty withdrawal and
because “different termination procedures may be appropriate for different treaties,” the issue
presented by the case was governed by “political” rather than judicial standards.113 Justice Powell
concurred in the judgment for dismissal, but on the ground that the case was not ripe for judicial
review as Congress had not taken any “formal action” disputing the President’s authority to
See Backchannel Message From Secretary of State Vance and the President’s Assistant for National Security Affairs
(Brzezinski) to the Ambassador to the Republic of China (Unger), para. 5 (Dec. 15, 1978), in U.S. DEP’T OF STATE
OFFICE OF THE HISTORIAN, XIII FOR. RELATIONS OF THE UNITED STATES, 1977-1980, CHINA,
https://history.state.gov/historicaldocuments/frus1977-80v13/d171/.
106 In addition, three days of hearings were held in the Senate Foreign Relations Committee on a resolution expressing
the sense of the Senate that “approval of the U.S. Senate is required to terminate any mutual defense treaty between the
United States and another nation.” S. Res. 15, 96th Cong. (1979); Treaty Termination: Hearings Before the S. Comm.
on Foreign Relations, 96th Cong. (1979). The resolution never passed.
107 Goldwater v. Carter, 481 F. Supp. 949, 965 (D.D.C. 1979), rev’d, 617 F.2d 697 (D.C. Cir. 1979) (en banc) (per
curiam), vacated and remanded with instructions to dismiss, Goldwater v. Carter, 444 U.S. 996 (1979) (plurality
opinion).
108 See 617 F.2d 697, 707‒09 (D.C. Cir. 1979) (en banc) (basing its conclusion that the President had unilateral
authority to withdraw from the Mutual Defense Treaty on the “material and unique elements” involved, including that
the withdrawal was part of the President’s exercise of the power of recognition of the PRC as the government of China
and that the treaty had a termination clause “without conditions and without designation as to who shall act to terminate
it”). The court further explained that “we have no occasion to decide whether [the existence of a termination clause]
would be determinative in a case lacking other factors identified above, e.g., under a notice of withdrawal from the
NATO treaty unaccompanied by derecognition of the other signatories.” Id. at 708. The court also specified that “[t]he
question of whether the Senate may be able to reserve to itself in particular treaties, at the time of their original
submission, a specific role in their termination is not presented by the record in this appeal and we decide nothing with
respect to it.” Id. at 709.
109 Goldwater, 444 U.S. at 996.
110 Id.
111 Id. at 1003‒05.
112 Id.
113 Id. at 1003. According to the plurality, its determination that the case was not one for judicial resolution was
reinforced by the fact that it “involves foreign relations” and “as far as we can tell, “is ‘entirely external to the United
States’.” Id. at 1004‒05 (quoting United States v. Curtiss Wright Export Corp. 299 U.S. 304, 315 (1936)).
105
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terminate the treaty.114 According to Justice Powell, if Congress had done so, “it would be the
duty of this Court to resolve the issue.”115
Since the Goldwater decision, Justice Rehnquist’s plurality opinion has proven influential among
some lower federal courts, which have cited the decision in dismissing challenges to Presidents’
unilateral withdrawals from treaties on political question grounds.116 While courts—and perhaps
ultimately the Supreme Court—might find the Goldwater plurality’s reasoning to be persuasive in
a case challenging a President’s unilateral withdrawal from the North Atlantic Treaty in violation
of Section 1250A, there is a potentially legally significant distinction between Goldwater and a
case involving a violation of Section 1250A; namely in Goldwater, there was no statute
prohibiting the President’s unilateral withdrawal from the U.S.-Taiwan Mutual Defense Treaty. In
providing the fifth vote for dismissal, Justice Powell maintained that the case would have been
appropriate for judicial resolution had there been such a statute prohibiting unilateral
withdrawal.117
The Supreme Court’s more recent political question jurisprudence might also influence whether a
court addressing a Section 1250A case would reach the same result as the Goldwater plurality. In
particular, a 2012 decision addressing whether a case involving separation of foreign policy
powers presented a political question suggests that a statutory prohibition of the challenged
presidential action might make a difference in a reviewing court’s application of the Baker
factors. That case—Zivotofsky ex rel. Zivotofsky v. Clinton (Zivotofsky I)118—involved a challenge
to the State Department’s refusal to comply with a statute requiring the Department to record in a
passport the birthplace of U.S. citizens born in Jerusalem as “Israel” if requested by the citizen or
the citizen’s guardian.119 According to the State Department, its long-standing policy of recording
the birthplace as “Jerusalem” on passports reflected the executive branch’s decision to leave the
question of the sovereign status of Jerusalem as a matter to be resolved in diplomatic
negotiations.120 The government argued that this policy was based on the President’s exclusive
power to recognize foreign states and that the statutory requirement impermissibly infringed on
that power.121
114 Id. at 1001 (Powell, J., concurring); see also id. at 998 (“It cannot be said that either the Senate or the House has
rejected the President’s claim. If the Congress chooses not to confront the President, it is not our task to do so.”).
Justice Marshall also concurred in the result without a written opinion. See id. at 996. In a dissenting opinion, Justice
Brennan argued that the political question doctrine did not apply because the question before the Court was “whether a
particular branch has been constitutionally designated as the repository of political decisionmaking power,” which
“falls within the competence of the courts.” Id. at 1007 (Brennan, J., dissenting). He further argued that the President’s
unilateral withdrawal should be upheld because it “was a necessary incident to” the President’s exercise of the power of
recognition of foreign states, which, Brennan explained, “the Constitution commits to the President alone.” Id.
115 Id. at 1002.
116 See, e.g., Kucinich v. Bush, 236 F. Supp. 2d 1, 18 (D.D.C. 2002) (dismissing on both political question and standing
grounds a challenge brought by thirty-one Members of Congress to President George W. Bush’s termination of the
Anti-Ballistic Missile Treaty with Russia); Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1198–99 (D. Mass.
1986), aff’d on other grounds, 814 F.2d 1 (1st Cir. 1987) (dismissing a group of private plaintiffs’ suit seeking to
prevent President Reagan from unilaterally terminating a Treaty of Friendship, Commerce, and Navigation with
Nicaragua based on the political question doctrine).
117 See supra note 114; see also Goldwater, 444 U.S. at 996 (Powell, J., concurring) (“[A] a dispute between Congress
and the President is not ready for judicial review unless and until each branch has taken action asserting its
constitutional authority. . . . [and] the political branches reach[ed] a constitutional impasse.”).
118 566 U.S. 189 (2012).
119 Id. at 191‒93 (citing the Foreign Relations Authorization Act, Fiscal Year 2003 § 214, 116 Stat. 1350 (2002)).
120 See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 6-7 [hereinafter Zivotofsky II].
121 See Zivotofsky I, 566 U.S. at 198-99. The Supreme Court’s subsequent decision on the merits of the case—
Zivotofsky II—is discussed infra section “Zivotofsky ex rel. Zivotofsky v. Kerry.”
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The U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C.
Circuit (D.C. Circuit) agreed with the executive branch that the case presented a political question
requiring dismissal,122 but the Supreme Court reversed in an eight-Justice majority opinion that
focused on the first two Baker factors.123 In concluding that the first factor—a textually
demonstrable constitutional commitment of the issue to a coordinate political department—did
not apply, the majority reasoned that the case required a determination of whether a statute was
constitutional, which “is a decision for the courts.”124 According to the majority:
[F]ederal courts are not being asked to supplant a foreign policy decision of the political
branches with the courts’ own unmoored determination of what United States policy
toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific
statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and whether the statute is constitutional. This is a
familiar judicial exercise.125
The majority also found that the fact the case presented the question of the constitutionality of a
statute was relevant in concluding that the second Baker factor—a lack of judicially discoverable
and manageable standards for resolving the issue presented by the case—did not apply.
Specifically, the Court observed that the issue of whether the passport statute impermissibly
infringed on the President’s constitutional powers required “careful examination of the textual,
structural, and historical evidence put forward by the parties regarding the nature of the statute
and of the passport and recognition powers,” which “is what courts do.”126
Zivotofsky I arguably supports a claim that a challenge to any alleged violation of Section 1250A
does not present a political question. As to the first factor, an alleged violation of Section 1250A
would involve a President’s refusal to comply with a statutory directive, and thus “the only real
question for the courts [would be] whether the statute is constitutional”—a question that the
Zivotofsky I Court emphasized was constitutionally committed to the courts rather than to the
political branches.127 Similarities with Zivotofsky I also suggest that the second Baker factor may
not be implicated in a challenge to a possible Section 1250A violation, as the question of whether
the President has exclusive constitutional authority to withdraw from treaties, including the North
Atlantic Treaty, would require courts to analyze constitutional text, structure, and history—which
the Zivotofsky I Court emphasized are quintessential judicial standards.128
122 Id. at 193−94.
123 See id. at 195 (stating that the political question doctrine applies “where there is ‘a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it’” (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)).
124 Id. at 196−97; see also id. at 196 (“At least since Marbury v. Madison, we have recognized that when an Act of
Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial
department to say what the law is.’” (quoting 5 U.S. (1 Cranch) 137, 177 (1803))).
125 Id. at 196. This reasoning is arguably supported by the Court’s conclusion that the political question doctrine did not
apply in Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986), a case challenging the executive branch’s
decision related to a treaty regulating whaling, see 478 U.S. at 224−29. According to the Court, that case did not
present a political question even though it involved foreign policy because the case “present[ed] a purely legal question
of statutory interpretation.” 478 U.S. at 230. In Zivotofsky I, Justice Breyer wrote the sole dissent, in which he
highlighted the Court’s precedent expressing reluctance to weigh in on matters related to foreign affairs powers on the
ground that they were often appropriately addressed by the political branches alone. See 478 U.S. at 213−15 (Breyer, J.,
dissenting).
126 Zivotofsky I, 566 U.S. at 201.
127 Id. at 196.
128 See supra note 126 and accompanying text; see also Baker v. Carr, 369 U.S. 186, 217 (1962) (listing “lack of
judicially discoverable and manageable standards for resolving” a question as among the factors relevant to the
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On the other hand, the executive branch may cite Justice Rehnquist’s plurality opinion in
Goldwater to argue that a dismissal is appropriate on the ground that such a challenge presents a
political question. According to the Goldwater plurality opinion, a treaty-withdrawal case “must
surely be controlled by political standards” given “the absence of any constitutional provision
governing the termination of a treaty, and the fact that different termination procedures may be
appropriate for different treaties.”129 The Goldwater plurality stated that this conclusion is further
supported by the fact that the case “involve[d] foreign relations.”130 Although Zivotofsky I
arguably rendered this latter point less relevant,131 the Goldwater plurality also emphasized that
the type of foreign policy issue at stake in the case was “a treaty commitment to use military force
in the defense of a foreign government if attacked”132—a consideration that would also be
implicated in a case involving presidential withdrawal from the North Atlantic Treaty in
contravention of Section 1250A.
Although, as discussed, the majority’s reasoning in Zivotofsky I may provide support for the claim
that the political question doctrine does not bar judicial review of a challenge to Section 1250A,
litigants may face hurdles under another justiciability doctrine that the executive branch may
invoke in seeking to get a challenge to an alleged violation of Section 1250A dismissed—namely,
standing.
Standing
The next justiciability doctrine that could affect whether a court resolved the merits of a Section
1250A case is standing. Like the political question doctrine, the Supreme Court developed the
standing doctrine based on the Court’s interpretation of the limits of the federal judiciary’s
authority under Article III of the U.S. Constitution to decide “cases” and “controversies.”133
While the political question doctrine focuses on whether the questions presented by the case are
appropriate for judicial resolution, the standing doctrine focuses on whether the plaintiff is the
right litigant to bring the case.134
determination of whether a case presents a nonjusticiable political question). Although the Zivotofsky I majority
discussed only the first two factors, it did not state that courts should no longer consider the others. Additionally,
Justice Sotomayor wrote a concurring opinion suggesting that the majority should have engaged in a more thorough
analysis and discussing the relevance of all six Baker factors See Zivotofsky I, 566 U.S. at 203‒07 (Sotomayor, J.,
concurring). She also wrote to emphasize that, while she agreed with the majority’s conclusion that Zivotofsky’s case
did not present a political question, she did not believe the majority’s opinion should be read as holding that no case
involving an issue of a statute’s constitutionality or requiring a court to resort to text, history, and structure for its
resolution could present a political question. See id. at 208−10.
129 Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (Rehnquist, J., concurring).
130 Id.
131 The Court’s Zivotofsky I decision sparked debate among commentators about whether it portended a greater
willingness on the part of the Court to decide foreign policy cases. Compare, e.g., Ganesh Sitaraman & Ingrid Wuerth,
The Normalization of Foreign Relations Law, 128 HARV. L. REV. 1897, 1925−27 (2015) (arguing that Zivotofsky I “is
of far-reaching significance” because it “reduced the justiciability barriers to hearing [foreign affairs] cases and in
doing so . . . rejected arguments that foreign relations cases need exceptional treatment”), with Curtis A. Bradley,
Foreign Relations Law and the Purported Shift Away from Exceptionalism, 128 HARV. L. REV. 294, 301 (2015)
(“Zivotofsky . . . presented a relatively unusual situation in which the executive branch was asserting authority to
disregard a clear statutory provision, something not presented in earlier, “exceptionalist” foreign relations law decisions
in which the Court had invoked justiciability limitations, such as Goldwater v. Carter.”).
132 Goldwater, 444 U.S. at 1004.
133 See supra notes 93‒94 and accompanying text.
134 See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”).
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To establish standing, the Court has set forth three primary requirements that litigants must
meet.135 These three requirements are designed to ensure that plaintiffs have a “‘personal stake in
the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of
issues necessary for the proper resolution’” of the case.136
Requirements to Establish Standing
To establish standing, litigants must show
•
they have suffered or will imminently suffer a concrete and particularized injury;
•
the injury is traceable to the allegedly unlawful actions of the defendant; and
•
the injury is redressable by a favorable judicial decision.137
Applying the Supreme Court’s standing jurisprudence, litigants challenging an alleged violation
of Section 1250A would have to demonstrate that they suffered an injury of the sort required by
the Supreme Court’s standing doctrine as a result of a President’s unilateral withdrawal from the
North Atlantic Treaty. The Court requires that plaintiffs establish that they suffered or will
imminently suffer a “particularized” injury—that is, one that affects [them] in a personal and
individual way”138—rather than a “generalized grievance” common across the public at large.139
The Court has emphasized that it is not sufficient for plaintiffs to assert “‘only the generalized
interest of all citizens in constitutional governance’” or in “hav[ing] the Government act in
accordance with law.”140 Although an injury may sometimes be “widely shared,”141 to have
standing, litigants must allege that they personally suffered or will imminently suffer an injury
sufficiently “discrete” and “concrete” to be distinctive to them.142
The nature of the standing analysis in a Section 1250A case may, to some extent, depend on
whether the plaintiff was a Member of Congress or a private individual.
Congressional Standing
Although cases involving congressional plaintiffs make up a relatively small portion of the
Supreme Court’s standing cases, the Court has developed several principles specific to
congressional standing.143 In the 1997 case Raines v. Byrd, the Court clarified that it distinguishes
between cases in which individual legislators have suffered an injury unique to them—such as
being deprived of salary as a result of being unlawfully prevented from taking their congressional
135 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61 (1992).
136
City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
137 See Lujan, 504 U.S. at 560−61.
138 Id. at 560 n.1.
139 Id. at 575.
140 Id. at 575 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)); see also Raines v.
Byrd, 521 U.S. 811, 819−20 (1997) (“[O]ur standing inquiry has been especially rigorous when reaching the merits of
the dispute would force us to decide whether an action taken by one of the other two branches of the Federal
Government was unconstitutional.”).
141 See FEC v. Akins, 524 U.S. 11, 23 (1998).
142 Lujan, 504 U.S. at 572−73; see also Akins, 524 U.S. at 24−25 (holding that, where an injury “is sufficiently concrete
and specific . . . the fact that it is widely shared does not deprive Congress of constitutional power to authorize its
vindication in the federal courts”).
143 See Raines, 521 U.S. at 820‒29 (discussing the Court’s precedent regarding standing doctrine as it applies to
lawsuits brought by of Congress); see also Cong. Rsch. Serv., Federal and State Legislators and Standing, Constitution
Annotated, https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-7/ALDE_00013009/ (last visited Feb. 9,
2026).
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seats144—and cases in which Members of Congress allege an “institutional injury”—that is, an
injury to the governance body of which they are a part, such as the voting power of a chamber or
of Congress as a whole.145 As discussed, Members of Congress have brought challenges to
Presidents’ unilateral withdrawal from treaties in the past.146 In those cases in which courts
addressed standing, they generally viewed the alleged injury—treaty termination without
congressional approval—as an institutional one.147
The Supreme Court has indicated that an allegation of an institutional injury may establish
standing in fewer circumstances than an allegation of a personal injury by a Member of
Congress.148 Because institutional injuries are typically shared by all members of a legislative
body equally, they are often more appropriately remedied through political action rather than
adjudication, the Court has reasoned.149 The Court has stated, however, that where a group of
legislators can establish that their votes were effectively “nullified,” they may be able to establish
an institutional injury sufficient for purposes of standing.150 In such circumstances, the Court has
explained, the institutional injury is to the legislators’ “plain, direct and adequate interest in
maintaining the effectiveness of their votes.”151
While the Court has seemingly indicated that the cases in which legislators will be able to
establish an institutional injury for purposes of standing by showing “complete[] nullifi[cation” of
their votes may be relatively rare,152 the Court has also suggested that this showing might be
made more easily if the congressional plaintiffs are “authorized to represent their respective
Houses of Congress”153 or Congress as a whole.154 When the body suffering the alleged injury has
144 See Raines, 521 U.S. at 820‒21 (“[W]e [have] held that a Member of Congress’ constitutional challenge to his
exclusion from the House of Representatives (and his consequent loss of salary) presented an Article III case or
controversy.” (citing Powell v. McCormack, 395 U.S. 486, 512−14 (1969))).
145 See id. at 821 (contrasting cases in which congressional plaintiffs had “been singled out for specially unfavorable
treatment as opposed to other Members of their respective bodies” and “deprived of something to which they
personally are entitled—such as their seats after their constituents had elected them, with cases in which Members
alleged “a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of
Congress and both Houses of Congress equally”).
146 See supra notes 102‒108 and accompanying text; supra note 116.
147 See, e.g., Kucinich v. Bush, 236 F. Supp. 2d 1, 6 (D.D.C. 2002) (concluding that the Member plaintiffs alleged an
institutional injury “to the constitutional role and power of the Legislative Branch—here, in the treaty termination
process”); cf. also Goldwater v. Carter, 617 F.2d 697, 702‒03 (D.C. Cir. 1979) (en banc), vacated on other grounds
and remanded with instructions to dismiss, Goldwater v. Carter, 444 U.S. 996 (1979) (plurality opinion) (stating that
each of the Senators challenging the President’s unilateral withdrawal from the United States’ Mutual Defense Treaty
with Taiwan had asserted an injury to their asserted authority “to be able to block the termination of this treaty by
voting, in conjunction with one-third of his colleagues, against it”).
148 See Raines, 521 U.S at 823−29.
149 See id.
150 See id. at 821‒25.
151 Id. at 821‒22 (quoting Coleman v. Miller, 307 U.S. 433, 438 (1939)).
152 In the 1997 case Raines v. Byrd, the Court stated that the “one case” in which it found vote nullification sufficient to
establish standing—which was decided in 1939—“stands (at most . . .) for the proposition that legislators whose votes
would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action
goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Id. at 821‒
24 (citing Coleman, 307 U.S. at 438, 431, & 446) (emphasis added). The Raines Court further pointed out that it was
not required to decide whether its standing analysis in the 1939 case, which addressed nullification of the votes of state
legislators, would be applicable in a case brought by Members of Congress. See id. at 824 n.8.
153 Id. at 829 (“We attach some importance to the fact that [they] have not been authorized to represent their respective
Houses of Congress in this action, and indeed both Houses actively oppose their suit.”).
154 Cf. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 802−03 (2015) (in holding that the
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authorized the suit, the Court has reasoned, the institutional plaintiff may be able to establish
standing by showing that the challenged action would nullify a vote by the entire legislative
body.155 Accordingly, as Section 1250A prohibits the President from withdrawing from the North
Atlantic Treaty without approval by two-thirds of the Senate or an act of Congress, if Congress or
one of its chambers authorized suit to be brought on its behalf, a court may conclude that an
injury had been alleged sufficient to establish standing because the alleged unlawful action
nullified the chamber’s or Congress’s vote on whether the United States should withdraw from
the treaty.
An early version of 1250A that passed in the Senate would have created a process to authorize
suit to be brought on behalf of the Senate or House of Representatives to enforce the law’s
congressional approval requirements,156 but final Section 1250A language agreed to in conference
did not contain this provision.157 While the Supreme Court has not expressly held that
authorization is necessary, the Court’s standing jurisprudence suggests that such authorization
increases the likelihood of establishing congressional standing in cases, such as a challenge by a
congressional plaintiff to a Section 1250A violation, that courts may view as alleging an
institutional injury.
Standing Under Other NATO-Related Statutes
Outside the context of congressional standing, if a private plaintiff were to challenge unilateral
withdrawal from the North Atlantic Treaty, legislation other than Section 1250A might affect a
court’s standing analysis. Numerous laws reference or relate to NATO, the North Atlantic Treaty,
or subsidiary international agreements concluded under the NATO rubric,158 and these laws could
be relevant to the standing analysis in a private plaintiff’s case.
NATO-Related Legislation
NATO-related legislation enacted in domestic law includes the following:
•
appropriations for U.S. contributions to NATO’s common budget;159
Arizona Legislature had standing to sue, explaining that the body “is an institutional plaintiff asserting an institutional
injury, and it commenced the action after authorizing votes in both of its chambers”).
155 Id. at 804 (quoting Raines, 521 U.S. at 823−24).
156 Although the text was later removed, the version of Section 1250A that passed in the Senate contained a section
providing the following:
By adoption of a resolution of the Senate or the House of Representatives, respectively, the Senate
Legal Counsel or the General Counsel to the House of Representatives may be authorized to
initiate, or intervene in, in the name of the Senate or the House of Representatives, as the case may
be, independently, or jointly, any judicial proceedings in any Federal court of competent
jurisdiction in order to oppose any action to suspend, terminate, denounce, or withdraw the United
States from the North Atlantic Treaty in a manner inconsistent with this subtitle.
S. 2226, 118th Cong. § 1399DD(a) (2023).
157 The House bill did not contain a parallel provision regarding withdrawal from the North Atlantic Treaty, and
according to the Conference Report, the House “recede[d] with an amendment to remove the authorization of legal
counsel to represent Congress.” H.R. REP. NO. 118-301, at 1227 (2023) (Conf. Rep.).
158 See, e.g., Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, June 19,
1951, 4 U.S.T. 1792, 199 U.N.T.S. 67; Colonel Brian H. Brady, The North Atlantic Treaty Organization Legal Advisor:
A Primer, ARMY LAW., Oct. 2013, at 7-11 (examining international agreements concluded under the North Atlantic
Treaty).
159 22 U.S.C. § 1928(a).
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•
requirement to appoint a U.S. permanent representative to NATO;160
•
policy statements, congressional findings, and “sense of” provisions expressing Congress’s support for
NATO;161
•
modified export control requirements for NATO member nations;162
•
simplified federal acquisition authorities concerning NATO member nations and NATO subsidiary
organizations;163
•
provisions to facilitate and support enlargement of NATO membership;164
•
congressional reporting requirements related to NATO activities;165 and
•
immigration authorities providing for several categories of NATO visas.166
Unilateral presidential withdrawal from NATO would not automatically repeal NATO-related
legislation because the Supreme Court has recognized that the repealing of statutes generally
must conform to the same bicameral process used to enact new legislation.167 At the same time,
private individuals or entities might argue that U.S. withdrawal interfered with NATO-related
rights and opportunities reflected in statute.168 For example, withdrawal from NATO could leave
160 Id. § 1928(b).
161 See, e.g., 22 U.S.C. § 8902(14); National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, §
1233(a)(5), 131 Stat. 886 (2017); Countering America’s Adversaries through Sanctions Act, Pub. L. No. 115-44, §
292(b)(3), 131 Stat. 886 (2017). There are also several single-chamber resolutions containing similar provisions. See,
e.g., H.R. Res. 256, 115th Cong. (2018) (enacted) (“[T]he House of Representatives . . . affirms the United States
enduring commitment to and friendship with its NATO allies[.]”); H.R. Res. 397, 115th Cong. (2017) (enacted) (“[T]he
House of Representatives . . . solemnly reaffirms the commitment of the United States to the North Atlantic Treaty
Organization’s principle of collective defense as enumerated in Article 5 of the North Atlantic Treaty[.]”).
162 22 U.S.C. §§ 2796−2796d (permitting the Secretary of Defense to loan or lease defense-related equipment to NATO
member nations for cooperative research and development purposes, subject to certain conditions and approvals); 22
U.S.C. § 2753(d)(2)(B) (providing a shortened, 15-day congressional notification period for certain arms sales to
NATO or NATO member countries); Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, § 1000(a)(7), 113
Stat. 1501 (1999) (enacting into law a resolution stating that the Secretary of State “shall establish a regulatory regime
for the licensing for export of commercial satellites, satellite technologies, their components, and systems which shall
include expedited approval, as appropriate, of the licensing for export by United States companies . . . to NATO allies).
163 See North Atlantic Treaty Organization Mutual Support Act of 1979, Pub. L. No. 96-323, 94 Stat. 1016 (1980)
(codified as amended at 10 U.S.C. §§ 2341-2350).
164 See, e.g., NATO Participation Act of 1994, Pub. L. No. 103-447, 108 Stat. 4691, tit. II; NATO Enlargement
Facilitation Act of 1996, Pub. L. No. 104-208, § 601, 110 Stat. 3009 (1996); European Security Act of 1998, Pub. L.
No. 105-277, §§ 2701-2705, 112 Stat. 2681; Gerald B. Soloman Freedom Consolidation Act of 2002, Pub. L. No. 107187, § 4, 116 Stat. 590; NATO Freedom Consolidation Act of 2007, Pub. L. No. 110-17, § 4, 121 Stat. 73.
165 See, e.g., Fiscal Year 2001 National Defense Authorization Act, Pub. L. No. 106-398, § 1221, 114 Stat. 1654 (2000)
(requiring reporting when NATO undertakes a military operation); National Defense Authorization Act for Fiscal Year
2013, Pub. L. No. 112-239, § 230, 125 Stat. 1632 (requiring a report on contributions of NATO member nations to
missile defense in Europe); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1231,
117 Stat. 1392 (2003) (requiring an annual report on the NATO member nations’ commitment to improving
capabilities in specific areas).
166 Immigration regulations allow for several types of “NATO visas” available to NATO representatives and their
international staff and families. See 22 C.F.R. § 41.25 (2024). The seven categories of NATO visas are set forth in 22
C.F.R. § 41.12 (2024).
167 See Clinton v. City of New York, 524 U.S. 417, 438 (1998); INS v. Chadha, 462 U.S. 919, 954 (1983).
168 Cf., e.g., Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (“The existence of a statutory right . . . is certainly relevant
to the Judiciary’s power to decide [a plaintiff’s] claim.”); FEC v. Akins, 524 U.S. 11, 21 (1988) (concluding that
plaintiffs suffered an injury in fact by being denied the ability to access information that a statute required to be made
public); Warth v. Seldin, 422 U.S. 490, 500 (1975) (“The actual or threatened injury required by Art. III may exist
solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing . . . .’”) (quoting Linda R.S. v.
Richard D., 410 U.S. 614, 617 n.3 (1973)). For more expansive discussion of the relationship between statutory
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uncertain the status of federal acquisition and export control authorities that simplify certain
commercial transactions involving NATO countries.169 NATO withdrawal might also call into
question the status and future availability of NATO visas for NATO officials, staff, and immediate
family members.170 In seeking to establish standing, litigants might contend that withdrawal from
the North Atlantic Treaty undermined their statutory rights or expectations of rights under a
particular NATO-related statute, which led to a concrete and particularized injury.171 The Supreme
Court has recognized that “[t]he actual or threatened injury required [to establish standing] may
exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.”172
Constitutional Analysis of Section 1250A
As discussed, the Supreme Court has never heard a treaty withdrawal case on its merits, and no
court has addressed the constitutionality of a statute restricting the President’s ability to withdraw
from a treaty. The analytical approaches that the Court has taken in separation of powers cases
involving other issues may inform any case involving a statute that the executive branch claims
impermissibly infringes on the President’s constitutional authority.
The Supreme Court’s Youngstown Framework for Separation of
Powers Cases
The Supreme Court has developed approaches to decide separation of powers issues in other
cases that courts might draw upon in assessing any potential challenges to a President’s
withdrawal from a treaty in alleged violation of a statutory prohibition such as that in Section
1250A. A court’s evaluation of such a challenge would likely begin with the framework that the
Supreme Court has recognized as appropriate for determining the scope of presidential powers
relative to those of Congress, including in cases involving foreign policy issues: Justice Robert
Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer.173 Under the Youngstown
framework, courts assess presidential claims of authority based on what Congress has—or has
not—said about the matter. As Justice Jackson observed: “Presidential powers are not fixed but
fluctuate, depending upon their disjunction or conjunction with those of Congress.”174 Justice
Jackson accordingly formulated a tripartite framework for analyzing the scope of presidential
power.
violations and standing, see Cong. Rsch. Serv., Particularized Injury, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-4-3/ALDE_00012998/ (last visited Feb. 9, 2026).
169 See supra notes 162‒163 and accompanying text.
170 See supra note 166.
171 Cf., e.g., Clinton v. City of New York, 524 U.S. 417, 429–33 (1998) (holding that plaintiffs with an economic
interest in the continued application of federal statutes had standing to challenge the constitutionality of process for
nullifying those statutes); Northeast Florida Chapter of Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S.
656, 668 (1993) (unconstitutional denial of ability to bid on government contract held to create standing).
172 Warth, 422 U.S. at 500; see also Zivotofsky ex rel. Zivotofsky. v. Sec’y of State, 444 F.3d 614, 619 (D.C. Cir. 2006)
(reasoning that “a concrete and particular injury for standing purposes can also consist of the violation of an individual
right conferred on a person by statute,” and holding that Zivotofsky had alleged an injury sufficient for standing
purposes because “his allegation that Congress conferred on him an individual right to have ‘Israel’ listed as his place
of birth on his passport and on his Consular Birth Report is at the least a colorable reading of the statute”).
173 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
174 Id. at 635.
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The Tripartite Framework in Justice Jackson’s Youngstown Concurrence
Presidential Maximum. Where Congress has expressly or implicitly authorized the President’s action,
presidential power is at its “maximum” and “supported by the strongest of presumptions and the widest latitude
of judicial interpretation.”175
Zone of Twilight. Cases in which Congress has neither authorized nor prohibited executive branch action lie in
an inscrutable “zone of twilight in which [the President] and Congress may have concurrent authority, or in which
its distribution is uncertain,” and “any actual test of power is likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law.”176
Lowest Ebb. Where Congress has expressly or impliedly prohibited executive action, presidential power “is at
its lowest ebb,” as it is an assertion of executive authority “at once so conclusive and preclusive [that it] must be
scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”177
In the 1981 case Dames & Moore v. Regan,178 the Supreme Court elaborated on the Youngstown
framework by observing that “it is doubtless the case that executive action in any particular
instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum
running from explicit congressional authorization to explicit congressional prohibition.”179
Additionally, in analyzing where the constitutional lines between the legislative and executive
branches lie, the Court often “put[s] significant weight upon historical practice,”180 which the
Court has stated may “be treated as a gloss” on the Constitution’s provisions.181 The Youngstown
framework’s focus on congressional actions coupled with the constitutional significance that the
Court often accords to historical practice of the political branches means that the Court’s analysis
of the distribution of powers to a considerable extent depends on the ways in which it interprets
any relevant statutes and the interactions of Congress and the President over time.182
The Supreme Court has applied the Youngstown framework in other opinions that a court might
find relevant in evaluating a presidential claim of power to withdraw from the North Atlantic
Treaty in violation of Section 1250A, including the two discussed in the following sections.
Zivotofsky ex rel. Zivotofsky v. Kerry
In a significant 2015 foreign policy case—Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky
II)183—a majority of the Supreme Court applied the Youngstown framework to uphold, for what
appears to be the first time, a presidential action that the Court determined fell into category
175 Id. at 637.
176
Id.
177 Id. at 637–38.
178 453 U.S. 654.
179 Id. at 669. The Court further observed that “Justice Jackson himself recognized that his three categories represented
‘a somewhat over-simplified grouping.’” Id. (quoting Youngstown, 343 U.S. at 635).
180 Zivotofsky ex rel. Zivotofsky v. Kerry 576 U.S. 1, 23 (2015) (quoting NLRB v. Noel Canning 573 U.S. 513, 524
(2014)).
181 Dames & Moore, 453 U.S. at 686 (quoting Youngstown, 343 U.S. at 610–11 (Frankfurter, J., concurring)); see also
Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring) (“Deeply embedded traditional ways of conducting
government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply
them.”).
182 For further discussion of how congressional actions and inactions factor into the Supreme Court’s analytical
approaches to questions regarding the scope of the President’s foreign policy authority under Article II of the
Constitution, see CRS Report R48524, Congress and the Scope of the President’s Article II Foreign Policy Authorities,
by Karen Sokol (2025).
183 576 U.S. 1 (2015).
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three.184 In this case, the Court held that the President has an “exclusive” and “conclusive”
power185 that “disabl[es] the Congress from acting upon the subject”—specifically, the
recognition of foreign states.186 As the Court explained, “[r]ecognition is a ‘formal
acknowledgement’ that a particular ‘entity possesses the qualifications for statehood’ or ‘that a
particular regime is the effective government of a state.’”187
As discussed, the Court earlier held in Zivotofsky I that the case was justiciable because no
political question was presented by the plaintiff’s challenge to the State Department’s refusal to
comply with the statute requiring the State Department to record in a passport or a consular report
of birth abroad the birthplace of U.S. citizens born in Jerusalem as “Israel.”188 On remand, the
D.C. Circuit held that the statute was unconstitutional.189 After holding that the President had
exclusive power to recognize foreign states,190 the court determined that the statutory requirement
impermissibly infringed on that power because it “force[d] the State Department to deviate from
its decades-long position of neutrality on what nation or government, if any, is sovereign over
Jerusalem.”191
The Supreme Court granted review for a second time in the litigation192 and upheld the D.C.
Circuit’s decision.193 The Court began its analysis by observing that “[i]n considering claims of
Presidential power this Court refers to Justice Jackson’s familiar tripartite framework
from Youngstown.”194 Because the President’s action at issue—“refusal to implement” the
passport statute—“falls into Justice Jackson’s third category,” the Court stated, the President’s
claim of authority “must be ‘scrutinized with caution,’ and he may rely solely on powers the
Constitution grants to him alone.”195 Acknowledging that the text of the Constitution does not
expressly reference the recognition power,196 the Court nevertheless concluded that the
Constitution implicitly grants the President such power based on the President’s other express
Article II powers and the Constitution’s structure.197
184 See id. at 31–32; cf. id. at 61 (Roberts, C.J., dissenting) (“Today’s decision is a first: Never before has this Court
accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”). In Youngstown, the
Supreme Court struck down President Truman’s order seizing many of the nation’s steel mills—which he justified
based on the need to ensure the availability of sufficient materiel for fighting the Korean War—on the ground that the
President did not have either congressional or constitutional authority to take such action. See Youngstown, 343 U.S. at
585–89; see also id. at 640 (Jackson, J., concurring) (“[T]he current seizure [can] be justified only by the severe tests
under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such
powers as Congress may have over the subject.”).
185 Zivotofsky II, 576 U.S. at 10.
186 Id. at 29–30 (alteration in original) (quoting Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring)).
187 Id. (quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 203 cmt. a (AM. L. INST.
1987)).
188 See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201−02 (2012); see also supra notes 118‒126 and
accompanying text.
189 Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 725 F.3d 197, 214 (D.C. Cir. 2014).
190 Id. at 220.
191 Id.
192 Zivotofsky ex rel. Zivotofsky v. Kerry, 572 U.S. 1059 (2014).
193 Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015).
194 Id. at 10.
195 Id. (quoting Youngstown, 343 U.S. at 638 (Jackson, J., concurring)).
196 See id. at 11 (“Despite the importance of the recognition power in foreign relations, the Constitution does not use the
term “recognition,” either in Article II or elsewhere.”).
197 See id. at 11–14.
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According to the Court, the inference of a presidential power of recognition is supported by the
President’s Article II powers to “receive Ambassadors and other public Ministers,”198 to “make
Treaties, provided two thirds of the Senators present concur,”199 and to “nominate, and by and
with the Advice and Consent of the Senate, [to] appoint Ambassadors” and “other public
Ministers and Consuls.”200 As a matter of constitutional structure, the Court reasoned, the
President has the sole power to receive ambassadors and other public ministers and to “negotiate
treaties,” while “Congress . . . has no constitutional power that would enable it to initiate
diplomatic relations with a foreign nation.”201 The Court thus concluded that the Constitution’s
“text and structure grant the President the power to recognize foreign nations and governments”;
however, the Court also observed these textual and structural factors did not alone answer the
question of “whether that power is exclusive.”202
In addressing exclusivity, the Court looked to functional considerations (e.g., the necessity that
the United States “speak with one voice”),203 judicial precedent,204 and the historical practice of
the political branches.205 These methods of constitutional interpretation led the Court to hold that
the President not only has the power of recognition, but that that power resides solely in the
presidency.206 Further, because the Court determined that the passport statute required the
Secretary of State to “directly contradict[]” the President’s recognition decision,207 the Court held
198 U.S. CONST. art. II, § 3.
199 Id. art. II, § 2, cl. 2.
200 Id.
201 Zivotofsky II, 576 U.S. at 13–14.
202 Id. at 14.
203 See id. at 14–15 (“Put simply, the Nation must have a single policy regarding which governments are legitimate in
the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic
relations or commerce with the United States, whether their ambassadors will be received; whether their officials will
be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These
assurances cannot be equivocal.”).
204 See id. at 14–15. The Court explained that “[n]o single precedent resolves the question whether the President has
exclusive recognition authority”:
In part that is because, until today, the political branches have resolved their disputes over
questions of recognition. The relevant cases, though providing important instruction, address the
division of recognition power between the Federal Government and the States—not between the
President and Congress.
Id. at 17. Although no case had directly addressed whether the recognition power was exclusive to the
Presidency, the Court concluded that several cases in which the Court discussed the recognition power
“illustrate [that] the Court has long considered recognition to be the exclusive prerogative of the Executive.”
Id. at 19.
205 See id. at 23–28 (“The weight of historical evidence indicates Congress has accepted that the power to recognize
foreign states and governments and their territorial bounds is exclusive to the Presidency.”).
206 See id. at 28. Justice Scalia, joined by Chief Justice Roberts and Justice Alito, questioned this holding, arguing that,
while “I agree that the Constitution empowers the President to extend recognition on behalf of the United States, but I
find it a much harder question whether it makes that power exclusive.” Id. at 70 (Scalia, J., dissenting).
207 The Court determined without much elaboration that the decision not to recognize any state’s sovereignty over
Jerusalem is part of the President’s exclusive recognition power and that the State Department’s recording of a U.S.
citizen born in Jerusalem as “Israel” would contradict that decision. See id. at 5 (stating that the Court had two
questions before it: “whether the President has the exclusive power to grant formal recognition to a foreign sovereign,”
and, “if he has that power, . . . whether Congress can command the President and his Secretary of State to issue a
formal statement that contradicts the earlier recognition”). Chief Justice Roberts and Justices Alito and Scalia disagreed
with those conclusions. See id. at 64, 66 (Roberts, C.J., dissenting) (“[T]he statute at issue does not implicate
recognition . . . . Whatever recognition power the President may have, exclusive or otherwise, is not implicated by [the
passport statute].”); id. at 76–77 (Scalia, J., dissenting) (criticizing the majority for “conclud[ing] that, in addition to the
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that the statute must be struck down because Congress had thereby “improper[ly]” “aggrandiz[ed]
its power at the expense of another branch.”208
Emphasizing that its decision did “not question the substantial powers of Congress over foreign
affairs in general or passports in particular,”209 the Court suggested that its holding was a narrow
one that left ample room for Congress to “express its disagreement with the President[’s]
recognition decision in myriad ways,” such as by “enact[ing] an embargo, declin[ing] to confirm
an ambassador, or even declar[ing] war.”210 The Court further emphasized that its exclusivity
analysis was confined to the President’s recognition power and did not subsume the executive
branch’s broader claim that that power derives from the President’s “exclusive authority to
conduct diplomatic relations” and possession of the “bulk of foreign-affairs powers.”211
Trump v. United States
The Supreme Court’s decision concerning presidential immunity from criminal prosecution in
Trump v. United States might also be relevant in a separation of powers case concerning Section
1250A. The Supreme Court in Trump relied on Youngstown to provide an extensive discussion of
exclusive and preclusive presidential powers.212 The Court explained that separation of powers
principles prohibit legislation—criminal or otherwise—that restricts Presidents’ exercise of their
“conclusive and exclusive powers”213 (which the Court also referred to as the President’s “core
constitutional powers”214). These conclusive and exclusive powers, the Trump Court held, include
some actions not specifically mentioned in the Constitution’s text, such as removing executive
officers whom the same President appointed, recognizing foreign states,215 and discussing
potential investigations and prosecutions with the Department of Justice.216
The following section analyzes how a court might apply the foregoing Supreme Court precedent
to a presidential claim of exclusive power to withdraw from the North Atlantic Treaty in
contravention of Section 1250A.
exclusive power to make the ‘formal recognition determination,’ the President holds an ancillary exclusive power ‘to
control . . . formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its
territorial bounds’” (quoting id. at 31)).
208 Id. at 30–32 (quoting Freytag v. Commissioner, 501 U.S. 868, 878 (1991)).
209 Id. at 32.
210 Id. at 30.
211 Id. at 20 (quoting Brief for the Respondent at 16–18, Zivotofsky II, 576 U.S. 1 (2015) (No. 13-628), 2014 WL
4726506, at *16–18).
212 Trump v. United States, 603 U.S. 593, 606−10 (2024). For additional background on the decision, see CRS Legal
Sidebar LSB11194, Presidential Immunity from Criminal Prosecution in Trump v. United States, by Todd Garvey
(2024).
213 Trump, 603 U.S. at 608−10. The Court largely derived its holding that Presidents are “absolutely immune from
criminal prosecution for conduct within [their] exclusive sphere of constitutional authority,” id. at 609, from
Youngstown’s category-three principle that “Congress cannot act on, and courts cannot examine, the President’s actions
on subjects within his ‘conclusive and preclusive’ constitutional authority.” Id.
214
Id. at 606.
215 See id. at 607, 609 (citing Zivotofsky II, 576 U.S. at 32).
216 See id. at 703−06.
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Possible Application of Supreme Court Jurisprudence to
Section 1250A
A court might frame its analysis in a case challenging a President’s violation of Section 1250A
using the Youngstown framework, as the Supreme Court framed its analysis of the separation of
powers issue in Zivotofsky II. Under that framework, if a court determines that the presidential
action contravenes an express congressional prohibition and falls into category three, the action
may be upheld only if the court determines that the Constitution grants the President exclusive
power such that Congress is prohibited “from taking action upon the subject.”217 The Supreme
Court has emphasized that presidential action contrary to the expressed will of Congress must be
“scrutinized with caution,” as it is in such situations that the President’s power is at its “lowest
ebb.”218 In assessing a President’s claim of exclusive authority to withdraw from treaties under
that seemingly heightened level of scrutiny, a court would likely consider constitutional text and
structure, relevant judicial precedent, and the historical practice of the political branches.
Constitutional Text and Structure
As the Constitution is silent with respect to the treaty withdrawal power, both parties to a case
challenging a Section 1250A violation would likely cite other constitutional provisions as well as
constitutional structure in support of their positions on treaty withdrawal authority. Those
challenging a violation might emphasize that, although the Constitution does not explicitly
reference treaty withdrawal, it does specify a process for the branches to exercise shared powers
to enter into treaties: The President “make[s]” treaties, but the United States may become a party
to a treaty219 only if the Senate provides its advice and consent and two-thirds of the Senators
concur. 220 Given that treaty entry and withdrawal both affect the content of U.S. international
legal obligations as well as of federal law that may trump U.S. state laws under the Supremacy
Clause,221 one might reason that the distribution of entry and withdrawal powers should be
symmetrical and subject to the same checks and balances.
Challengers might further contrast treaty withdrawal with the recognition power, which appears
to be the only foreign policy authority to date that the Supreme Court has found to be exclusive
and beyond congressional regulation.222 In contrast to U.S. participation in treaties, the
217 343 U.S. 579, 637−38 (1952) (Jackson, J., concurring).
218 Zivotofsky II, 576 U.S. at 10 (quoting Youngstown, 343 U.S. at 638 (Jackson, J., concurring)). In contrast, a
presidential action taken pursuant to congressional authorization is “supported by the strongest of presumptions and the
widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack
it.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
219 In this context, “treaty” means a treaty as defined in the U.S. legal system—that is, an “Article II” treaty—and not
as defined in the international legal system. See supra “Background and Legal Framework.”
220 See U.S. CONST. art. II, § 2, cl. 2 (granting the President the “Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur”).
221 U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land.”); see also Am. Ins. Ass’n. v. Garamendi, 539 U.S. 396, 416 (2003) (“Generally . . . valid executive
agreements are fit to preempt state law, just as treaties are.”); Cong. Rsch. Serv., Overview of Supremacy Clause,
Constitution Annotated, https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-1/ALDE_00001283/ (last visited
Feb. 15, 2026).
222 Cf. Trump v. United States, 603 U.S. 593, 608−09 (2024) (explaining that the President’s powers the Court has
found to be exclusive include the powers to pardon for federal offenses, to remove “executive officers of the United
States whom he has appointed,” and “‘to control recognition determinations’ of foreign countries” (quoting Myers v.
United States, 272 U.S. 52, 106 (1926) and Zivotofsky II, 576 U.S. at 32)).
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Constitution does not speak directly to U.S. recognition of foreign states. Some could argue that
this difference suggests that the Supreme Court’s reasoning in Zivotofsky II for acknowledging
the President’s exclusive recognition power does not apply to the treaty withdrawal context.
Given that claims of exclusive presidential authority must be “scrutinized with caution,”223 it
might be contended that the existence of a congressional role in treaty entry weighs against an
interpretation of the Constitution that excludes Congress from participation in treaty withdrawal.
The executive branch, for its part, might contend that the Constitution’s silence on treaty
withdrawal is not determinative because the Supreme Court has been willing to recognize other
exclusive presidential powers that are not expressly granted in the Constitution.224 These
exclusive presidential powers include not only the recognition power, but also the power to
remove executive officers whose appointment, like treaty entry, requires Senate approval.225 The
executive branch might further argue, as it has in the past in support of the President’s unilateral
authority in foreign affairs, that the President has inherent Article II power based on the
“combined force” of several Article II provisions,226 including the vesting of “[t]he executive
power” in the President,227 the Take Care Clause,228 the Commander in Chief Clause,229 the
Reception Clause,230 and the Treaty Clause.231 The OLC invoked that line of reasoning in its 2020
opinion in support of its argument that the President has exclusive authority to withdraw from
treaties: “Taken together, these provisions [of Article II] grant the President the authority and
discretion to implement a treaty by notifying foreign powers of the United States’ exercise of its
right to withdraw from the treaty.”232
Judicial Precedent
As discussed, there is no directly controlling precedent regarding the distribution of treatywithdrawal authority.233 Both sides to a case regarding a Section 1250A violation may emphasize
aspects of potentially relevant cases that could support their respective position and distinguish
those aspects that might be understood as unfavorable to them.
223 See supra note 218 and accompanying text.
224 See supra notes 55‒56 and accompanying text.
225 See supra notes 55‒56 and accompanying text.
226 Brief for Petitioner at 6‒15, 92, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (No. 745) (arguing
that “Presidential power to act on a particular occasion may derive from . . . the combined force of . . . several
provisions of Article II”); see also Youngstown, 343 U.S. at 587 (“[The government does] not claim[] that express
constitutional language grants this power to the President. The contention is that presidential power should be implied
from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which
say that ‘the executive Power shall be vested in a President . . . ’; that ‘he shall take Care that the Laws be faithfully
executed’; and that he ‘shall be Commander in Chief of the Army and Navy of the United States.’”).
227 U.S. CONST. art. II, § 1 (“the executive power shall be vested in a President of the United States of America.”).
228 U.S. CONST. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed.”).
229 Id. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the actual Service of the United States.”).
230 Id. art. II, § 3 (“[The President] shall receive Ambassadors and other public Ministers.”).
231 Id. art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur.”).
232 Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. 184, 193‒95
(2020).
233 See supra “Political Question Doctrine”; “The Supreme Court’s Youngstown Framework for Separation of Powers
Cases.”
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Those challenging a Section 1250A violation might highlight the Supreme Court’s broad
statements about foreign affairs authorities, which arguably support the idea that most foreign
powers are shared because the Constitution assigns those authorities to the national government
as a whole.234 Challengers also might emphasize that many Supreme Court precedents that could
be understood as characterizing presidential foreign affairs powers as broad did not involve
questions of exclusive authority, but rather questions of whether the President could act in the
absence of express congressional authorization.235 Additionally, challengers might maintain that
if, as the executive branch maintains, treaty withdrawal is an instance of executing treaties as the
“law of the land,”236 Section 1250A must also be understood as the law of the land pursuant to
Congress’s treaty-implementing power, which has long been recognized by the Supreme Court.237
Challengers may also point out that, even when the Supreme Court determined that the President
has exclusive authority to recognize foreign states in Zivotofsky II, the Court emphasized the
narrowness of this power238 and cautioned that “it is essential the congressional role in foreign
affairs be understood and respected.”239 In addition, challengers might emphasize that the
234 See, e.g., Crosby v. Nat’l For. Trade Council, 530 U.S. 363, 381 (2000) (“Congress’s express command to the
President to take the initiative for the United States among the international community invested him with the
maximum authority of the National Government, in harmony with the President's own constitutional powers.” (internal
citations omitted)); United States v. Belmont, 301 U.S. 324, 331 (1937) (“[C]omplete power over international affairs
is in the national government and is not and cannot be subject to any curtailment or interference on the part of the
several states.”); cf. also Fuld v. Palestine Liberation Org., 606 U.S. 1, 19 (2025) (“[W]hen the Executive and Congress
have spoken with one voice in th[e foreign affairs] sphere, their coordinate action is ‘supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon
any who might attack it.’” (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952))).
235 Compare, e.g., Am. Ins. Ass’n. v. Garamendi, 539 U.S. 396, 414 (2003) (“Although the source of the President's
power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the ‘executive Power’ vested in
Article II of the Constitution has recognized the President’s ‘vast share of responsibility for the conduct of our foreign
relations’” (quoting Youngstown, 343 U.S. at 610‒11 (Frankfurter, J. concurring))), with id. at 427 (“There is . . . no
need to consider the possible significance . . . of tension between an Act of Congress and Presidential foreign policy.”);
cf. also, e.g., The Brig Amy Warwick, 67 U.S. (2 Black) 635, 668 (1862) (5–4 decision) (in upholding President
Lincoln’s blockade of southern ports without specific congressional authorization, relying on the President’s Article II
duty “to take care that the laws be faithfully executed” and power as “Commander in Chief” as well as on various
statutes authorizing the President “to called [sic] out the militia and use the military and naval forces of the United
States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the
United States”).
Additionally, in holding that the President has independent authority inherent in Article II to settle foreign claims in the
absence of explicit congressional authorization, the Court in Dames & Moore v. Regan, 453 U.S. 654 (1981),
emphasized “the narrowness” of [its] decision,” highlighting that it had determined that historical practice indicated
that Congress had “acquiesced” in such authority. Id. at 688; see also Learning Resources, Inc. v. Trump, No. 24–1287,
slip op. at 20, 607 U.S. __, 2026 WL 477534, *13 (2026), https://www.supremecourt.gov/opinions/25pdf/241287_4gcj.pdf (characterizing Dames & Moore as “exceedingly narrow”).
236 See Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. at 191,
196, 200 (stating that “[a]s the Chief Executive, the President bears the constitutional responsibility to execute the law
and treaties of the United States,” and reasoning that treaty withdrawal pursuant to a treaty’s terms is an instance of
treaty execution pursuant to this authority); see also supra note 232 and accompanying text.
237 See Missouri v. Holland, 252 U.S. 416, 432 (1920) (holding that “if the treaty is valid there can be no dispute about
the validity of the [implementing] statute under Article 1, Section 8, as a necessary and proper means to execute the
powers of the Government”); Neely v. Henkel, 108 U.S. 109, 121 (1901) (recognizing the Congress’s “power to enact
legislation as is appropriate to give efficacy” to U.S. treaty obligations).
238 See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 30 (2015) (“Here, the subject [of the President’s exclusive
authority] is quite narrow: The Executive’s exclusive power extends no further than his formal recognition
determination.”); see also id. at 28 (in examining historical practice of the branches, stating that, “in the narrow context
of recognition,” Congress “on balance has acknowledged the importance of speaking ‘with one voice’” (quoting
Crosby, 530 U.S. at 381)).
239 Id. at 20‒21.
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Zivotofsky II Court dismissed as dicta earlier, expansive language about presidential foreign
policy power in United States v. Curtiss-Wright Export Corp.,240 a New Deal-era case that the
executive branch relied on in support of broad claims of exclusive authority “to conduct
diplomatic relations” and “the bulk of foreign affairs powers.”241 “[D]eclin[ing] to acknowledge
this unbounded power,” the Court explained that “[t]he Executive is not free from the ordinary
controls and checks of Congress merely because foreign affairs are at issue.”242
The executive branch might respond by contending that the functional considerations recognized
by the Supreme Court—such as the institutional capacity of the President to speak with “one
voice” on behalf of the nation in international affairs243—have particular salience in the context of
treaty withdrawal. In its 2020 opinion claiming that the President has exclusive treaty-withdrawal
authority, the OLC cited the Court’s reasoning in Zivotofsky II based on such functional
considerations in arguing that the case “reinforces the [OLC’s] conclusion that the President’s
authority to exercise the United States’ right to withdraw from a treaty is exclusive.”244 According
to the OLC, “[n]o less than the power to recognize foreign sovereigns, the decision to withdraw
from a treaty ‘is a topic on which the Nation must speak with one voice.’”245
The executive branch might also argue that Congress’s authority to implement treaties does not
include restricting the President’s authority to withdraw from them. In its 2020 opinion, the OLC
argued that the statutory notification and waiting period restrictions on the President’s withdrawal
from the Open Skies Treaty are “not an exercise of Congress’s authority to adopt laws to
implement treaties as part of our domestic law.”246 According to the OLC, “[t]he power of
Congress to implement a treaty does not itself imply a power to direct the President to engage in
diplomacy or control the manner by which the President executes the rights of the United States
under treaties.”247
Given the arguably inconclusive nature of constitutional text, structure, and jurisprudence
regarding treaty-withdrawal authority—and particularly whether any of that authority is
exclusive—courts might look to historical practice for “gloss” on constitutional meaning as they
have done in other separation of powers cases.248 The parties accordingly would likely also
advance arguments based on historical practice in support of their positions.
240 See id. at 20−21 (“Th[e] description of the President’s exclusive power was not necessary to the holding of Curtiss–
Wright—which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination.”
(citing United States v. Curtiss Wright Export Corp. 299 U.S. 304 (1936))).
241 See id. at 19−21 (“In support of his submission that the President has broad, undefined powers over foreign affairs,
the Secretary quotes United States v. Curtiss–Wright Export Corp., which described the President as ‘the sole organ of
the federal government in the field of international relations.’” (quoting Curtiss Wright, 299 U.S. at 320)). The Court
explained: “This description of the President’s exclusive power was not necessary to the holding of Curtiss–Wright—
which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination.” Id. at 21.
242 Id. at 21.
243 Zivotofsky II, 576 U.S. at 14, 28, 29; Crosby, 530 U.S. at 382; cf. also Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 188 (1993) (explaining that the President has “unique responsibility” for “foreign and military affairs”).
244 Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. 184, 197
(2020).
245 Id. at 198 (quoting Zivotofsky II, 576 U.S. at 14).
246 Id. at 198‒99.
247 Id. at 199.
248 Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 610–11 (1952) (Frankfurter, J., concurring)); see also NLRB v. Noel Canning 573 U.S. 513, 524 (2014) (“We
[have] confirmed that ‘[l]ong settled and established practice is a consideration of great weight in a proper
interpretation of constitutional provisions’ regulating the relationship between Congress and the President.” (quoting
(continued...)
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Historical Practice
Those challenging a Section 1250A violation might maintain that the pre-20th century practice of
regular congressional involvement in treaty withdrawal discussed above249 demonstrates that the
President and Congress adopted the constitutional interpretation that treaty withdrawal is, like
treaty entry, a shared power. In light of that past practice, they might further argue that the more
recent trend of unilateral presidential withdrawal at most demonstrates that Congress may at
times have accepted the President has independent authority—that is, in the absence of
congressional restriction—to withdraw from treaties, but not an acceptance that the power is
exclusive.250 After all, challengers might point out, it does not appear that the executive branch
took the position that the treaty-withdrawal power was exclusive to the President until 2020, and
Congress responded with the enactment of Section 1250A soon after the executive branch
announced that view.
Additionally, challengers might argue that the relevant historical practice extends to other types of
congressional actions affecting U.S. participation in treaties, such as treaty-implementing
legislation and notification and reporting requirements.251 Looking to a broader set of practices,
one might argue that statutes such as the law requiring that the President provide Congress with a
notice period before withdrawing from the Open Skies Treaty252 evince a congressional
understanding that treaty-withdrawal authority is shared. Other potentially relevant examples
include statutory restrictions on the President’s ability to unilaterally modify treaties253 or to alter
U.S. international legal obligations unless through a Senate-approved treaty.254
The executive branch, by contrast, might maintain that Zivotofsky II calls for a more focused set
of historical examples, and that the relevant practice is limited to assertions of authority that relate
to treaty withdrawal directly. The executive branch might argue that the Supreme Court’s
approach in Zivotofsky II to interpreting past practice sets a high bar for Congress to evince an
understanding that a given power is not exclusive to the presidency. Although the Court cited
historical instances in which the President consulted with Congress about recognition decisions
and Congress enacted appropriations and other legislation related to those decisions, the
The Pocket Veto Case, 279 U.S. 655, 689 (1929))); Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring) (“Deeply
embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give
meaning to the words of a text or supply them.”); supra “The Supreme Court’s Youngstown Framework for Separation
of Powers Cases.”
249 See supra “Historical Practice.”
250 For further discussion of the distinction between the President’s exclusive and independent authorities under Article
II of the Constitution, see CRS Report R48524, Congress and the Scope of the President’s Article II Foreign Policy
Authorities, by Karen Sokol (2025).
251 For background on congressional implementation statutes and notification and reporting requirements, see CRS
Legal Sidebar LSB11049, International Agreements (Part II): Examining Tools for Congressional Influence Over
International Instruments, by Steve P. Mulligan.
252 See supra note 73 and accompanying text.
253 See, e.g., National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1035(3), 130 Stat. 2000,
2391 (2016) (prohibiting the use of funds “to implement a material modification to the Treaty Between the United
States of America and Cuba signed at Washington, D.C. on May 29, 1934 that constructively closes United States
Naval Station, Guantanamo Bay”).
254 See, e.g., Consolidated Appropriations Act for Fiscal Year 2000, Pub. L. No. 106-113, § 705(b), 113 Stat. 1501,
1501A-461 (1999) (prohibiting the United States from “becom[ing] a party to the International Criminal Court except
pursuant to a [Senate-approved] treaty”) (codified at 22 U.S.C. § 7401(b)); Arms Control and Disarmament Act, Pub.
L. No. 87-297, § 33, 75 Stat. 631, 634 (1961) (codified as amended at 22 U.S.C. § 2753(b)) (prohibiting actions “that
would obligate the United States to reduce or limit the Armed Forces or armaments of the United States in a militarily
significant manner, except pursuant to the treaty-making power of the President set forth in Article II, Section 2, Clause
2 of the Constitution or unless authorized by the enactment of further affirmative legislation”).
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Zivotofsky II Court did not interpret those examples as indicating an understanding that
recognition is a shared power.255 Instead, the Court found that the examples demonstrated “no
more than that some Presidents have chosen to cooperate with Congress, not that Congress itself
has exercised the recognition power.”256 The Court arguably suggested that only congressional
action directly contrary to the President’s exercise of a power will suffice as historical evidence of
congressional assertion of that power. As the Court observed: “‘[T]he most striking thing’ about
the history of recognition is what ‘is absent from it: a situation like this one,’ where Congress has
enacted a statute contrary to the President’s formal and considered statement concerning
recognition.”257
Furthermore, the executive branch might contend that the Zivotofsky II Court’s approach to the
political branches’ historical practices was heavily informed by functional considerations—most
prominently the ability of the President to “speak . . . with one voice” on behalf of the nation in
the international arena.258 According to the Court, the President is “better positioned to take the
decisive, unequivocal action necessary to recognize other states at international law,”259 which
Congress “on balance has acknowledged the importance of.”260 The executive branch might argue
that the same clarity and decisiveness is necessary in the United States’ treaty relations, and
therefore functional considerations favor unliteral presidential decisionmaking over treaty
withdrawal.
In sum, existing Supreme Court precedent may not provide a clear answer on the question that
would be presented by a President’s claim of exclusive authority to withdraw from the North
Atlantic Treaty in contravention of Section 1250A. Rather, if a court agreed to hear a case on the
merits, both sides would likely present arguments based on constitutional text and structure,
relevant judicial precedent, and historical practice of the political branches in support of their
respective positions.
Considerations for Congress
As the foregoing discussion makes clear, the question of whether the President possesses
authority to withdraw from the North Atlantic Treaty without congressional or senatorial approval
implicates a long-standing and still-unresolved debate over the Constitution’s allocation of the
power to withdraw from treaties. If a court were to conclude that Section 1250A places a
President’s unilateral withdrawal from the North Atlantic Treaty in Youngstown’s category three,
to defend such a violation, the executive branch would have to establish that the President has
exclusive authority to withdraw from treaties,261 an argument that the executive branch advanced
in a 2020 OLC opinion.262 The Supreme Court was willing to find exclusive presidential powers
255 See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 23−28 (2015).
256 Id. at 23.
257 Id. at 24 (quoting Zivotofsky ex rel. Zivotofsky v. Secretary of State, 725 F.3d 197, 221 (D.C. Cir. 2013) (Tatel, J.,
concurring)).
258 Id. at 14 (quoting Am. Ins. Ass’n. v. Garamendi, 539 U.S. 396, 424 (2003).
259 Id. at 15.
260 Id. at 28. In his dissent, Justice Scalia argued that the majority’s analysis of the constitutional text and interbranch
practices analysis was principally driven by functional considerations that improperly minimized congressional actions,
stating, “In the end, the Court’s decision does not rest on text or history or precedent. It instead comes down to
‘functional considerations’—principally the Court’s perception that the Nation ‘must speak with one voice’ about the
status of Jerusalem.” Id. at 80 (Scalia, J., dissenting) (quoting Garamendi, 539 U.S. at 424).
261 See supra “The Supreme Court’s Youngstown Framework for Separation of Powers Cases.”
262 See supra “The Executive Branch’s 2020 Claim to Exclusive Treaty Withdrawal Power.”
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in both Zivotofsky II and Trump,263 but it remains uncertain how a court would rule if it were to
agree to hear a case challenging a Section 1250A violation given the absence of controlling
Supreme Court precedent on the treaty-withdrawal power.264
Absent judicial enforcement, Congress may consider responding to what it believes to be a
violation of Section 1250A by using its institutional tools to influence the executive branch,
which include impeachment, oversight, exercising the power of the purse to eliminate executive
branch funding, and withholding approval for nominations.265
Additionally, if a President were to withdraw the United States from the North Atlantic Treaty, all
existing NATO-related legislation would appear to remain in effect, and it would be up to
Congress to determine whether any statutes should be repealed or amended. Because many
NATO-related provisions are not dependent on whether the United States is a party to the
treaty,266 Congress may be able to achieve some NATO-related policy objectives through new
legislation. For example, in response to President Carter’s withdrawal from the United States’
mutual defense agreement with Taiwan in 1979,267 Congress enacted the Taiwan Relations Act,268
which provides that “the United States will make available to Taiwan such defense articles and
defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient
self-defense capability.”269
Congress may also consider that, in addition to statutory prohibitions of unilateral presidential
treaty withdrawal such as in Section 1250A, other congressional actions that might be understood
by courts or the political branches as assertions of congressional treaty withdrawal authority
include, for example, placing restrictions on the President’s authority to withdraw from treaties in
the Senate’s resolutions providing advice and consent to the President’s ratification of those
treaties270 or in authorizing legislation.271
Congress may also consider the potentially complex state of affairs if a court were to enforce
Section 1250A and enjoin a President from unilaterally withdrawing from the North Atlantic
Treaty. Even with an injunction in place, other questions may arise over whether the President
263 See supra “Zivotofsky ex rel. Zivotofsky v. Kerry” & “Trump v. United States.”
264 See supra “Justiciability Issues in Enforcing Section 1250A “Constitutional Analysis of Section 1250A.”
265 For deeper analysis of Congress’s institutional tools to influence the executive branch, see CRS Report R45442,
Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd Garvey and Sean Stiff.
266 See supra notes 158‒166 and accompanying text (providing examples of NATO-related legislation supported by
Congress’s appropriation, foreign commerce, and immigration authorities). For further discussion of such legislation,
see CRS Legal Sidebar LSB11256, The North Atlantic Treaty: U.S. Legal Obligations and Congressional Authorities,
by Karen Sokol (2025).
267 The litigation challenging the President’s unilateral withdrawal is discussed supra “Political Question Doctrine.”
268 Pub. L. No. 96-8, 93 Stat. 14 (1979).
269 Id. at 15, § 3(a).
270 In concluding that President Carter’s unilateral withdrawal from the United States’ mutual defense treaty with
Taiwan was constitutional in the Goldwater case, the D.C. Circuit emphasized that the case did not involve any such
restriction in the Senate’s resolution of advice and consent. See Goldwater v. Carter, 617 F.2d 697, 709 (D.C. Cir.
1979) (en banc) (per curiam), vacated and remanded with instructions to dismiss, Goldwater v. Carter, 444 U.S. 996
(1979) (plurality opinion) (“The question of whether the Senate may be able to reserve to itself in particular treaties, at
the time of their original submission, a specific role in their termination is not presented by the record in this appeal and
we decide nothing with respect to it.”).
271 Cf., e.g., 22 U.S.C. §§ 290, 290c (authorizing the President to join the World Health Organization (which is effected
through ratification of the Constitution of the World Health Organization, July 22, 1946, 14 U.N.T.S. 185), and
conditioning the right of the United States to withdraw from the treaty on the provision of one year’s notice and the
meeting of “the financial obligations of the United States to the Organization . . . in full for the Organization’s current
fiscal year”).
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could be compelled to honor the United States’ treaty commitments, such as the mutual defense
obligations under Article 5 of the North Atlantic Treaty.272 Initially, any attempt to mount a
judicial challenge to an alleged failure to meet U.S. NATO obligations would likely face
justiciability hurdles such as the political question and standing doctrines discussed above.273
Additionally, the executive branch might maintain that any judicial action could not interfere with
the President’s “exclusive sphere of constitutional authority,”274 which the executive branch might
claim includes presidential powers like the Commander-in-Chief authority.275
Finally, regardless of the outcome of any case in which a court may agree to hear a challenge to a
Section 1250A violation, there may remain ways the legislative and executive branches could
affect the United States’ policy regarding NATO through the use of their respective constitutional
authorities. Such authorities may include Congress’s powers related to foreign commerce, use of
the armed forces, and spending, and the President’s powers as Commander in Chief and to
receive ambassadors and other foreign government officials.276
Congress may find it useful to consider the legal contexts outlined in this report and the issues
that could arise as it continues to exercise its legislative and oversight powers with regard to the
North Atlantic Treaty, as well as other treaties to which the United States is a party.
272 North Atlantic Treaty, supra note 6, art 5 (“The Parties agree that an armed attack against one or more of them in
Europe or North America shall be considered an attack against them all and consequently they agree that, if such an
armed attack occurs, each of them . . . will assist the Party or Parties so attacked by taking forthwith, individually and
in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.”). For background on the complexities of Article 5, see CRS Legal
Sidebar LSB11256, supra note 266, at 1–2.
273 See supra “Justiciability Issues in Enforcing Section 1250A.”
274 Trump v. United States, 603 U.S. 593, 609 (2024).
275 Although the Supreme Court has referenced the President’s role as Commander in Chief in discussing foreign
affairs authorities generally, the Court generally has not specified the contours of that authority. See, e.g., Chicago & S.
Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 109 (1948) (“The President also possesses in his own right certain
powers conferred by the Constitution on him as Commander-in-Chief and as the Nation’s organ in foreign affairs.”). In
a 19th century case, Chief Justice Salmon Chase posited in a concurring opinion joined by three other Justices that the
President has some independent—and possibly exclusive—power to direct military campaigns:
Congress has the power not only to raise and support and govern armies but to declare war. It has,
therefore, the power to provide by law for carrying on war. This power necessarily extends to all
legislation essential to the prosecution of war with vigor and success, except such as interferes with
the command of the forces and the conduct of campaigns. That power and duty belong to the
President as commander-in-chief.
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1867) (Chase, C.J., concurring) (emphasis added).
276 Cf Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 16 (2015) (“Although the President alone effects the formal
act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many
of the policy determinations that precede and follow the act of recognition itself. If Congress disagrees with the
President’s recognition policy, there may be consequences. Formal recognition may seem a hollow act if it is not
accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And
those decisions require action by the Senate or the whole Congress.”).
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Author Information
Karen Sokol
Legislative Attorney
Acknowledgments
Attorney-Adviser Steve P. Mulligan coauthored this report.
Disclaimer
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