Can Trump Pull Out of NATO?

Today, I'm chatting with my friend and co-author, Kurt Bradley, at the University of Chicago Law School. Kurt's most recent book, Historical Gloss and Foreign Affairs, is relevant to the topic we're discussing today, which is whether President Trump has the authority to withdraw the United States from the North Atlantic Treaty of 1949, which established the NATO alliance. Everybody knows about Article 5 of the NATO Treaty's collective self-defense provision. Less well known is that Article 13 of the treaty provides that any party may cease to be a party one year after its notice of denunciation. So the Senate in 1949 gave its consent, two-thirds consent to that treaty. The President ratified the treaty. He came into force and has been in force ever since. Kurt, in a second, we're going to talk about the significance of a statute that proposes to restrict the President's power to withdraw. But before we get to that, let's just talk about the kind of naked constitutional issue. Can the President, if there were no statute, could he withdraw the United States from this treaty? Yeah, and thanks for talking with me about this, Jack. So the text of the Constitution does not give us much help on your question. All it tells us is how the US government makes treaties, which it says requires two-thirds of the Senate to agree with the President to make treaties. And as you mentioned, that's how the North Atlantic Treaty was concluded in the late 1940s. There's nothing in the text of the Constitution that specifically talks about how the US government can get out of treaties. Presumably, it can get out of treaties like other nations, the other sides breaching the treaty, or in the case of modern treaties like the NATO treaty, the treaties themselves say that the nations, usually with notice, can get out. But our Constitution doesn't give us a lot of guidance about how that's supposed to happen. In at least modern terms, the modern era, presidents have, for the most part, acted unilaterally in pulling the United States out of treaties when they think that's warranted. And that's been true for probably 100 years or so. There are a few counter examples since the early 20th century, but for the most part, when the US has pulled out of treaties, it has been through presidential action. And most of those withdrawals have not been controversial. A lot of them are kind of low-level treaties, non-controversial treaties where Congress doesn't seem to have a strong view. A few times it's been controversial. But the fact is, the practice has been for presidents to act in pulling the US out of treaties and not seek Congress's permission to do it, particularly when there's a clause like in the NATO treaty where it specifically says each party can withdraw, presidents have used those sorts of clauses many times. And so even though the text doesn't give us much guidance, if you look to historical practice, it now is pretty heavily on the side of some presidential power here. Okay, I have a couple of questions about that. First of all, you wrote a whole book about this, but why should we care about historical practice? You basically said for 100 years presidents have been doing this. Why should that matter? Why shouldn't we be looking at the text of the Constitution and what the framers thought, etc. etc. Yeah, I think if the text is clear, or maybe what the framers thought is clear, you might just use that. The problem for many foreign affairs as you know is the text is often not clear, or it doesn't exist in this case, or in the founding in Tantor understanding is also often unclear or non-existent. Students have asked me, why isn't there more in the text or the founding about pulling out of treaties? We don't know for sure, but one possibility is they just didn't think about it much. The fact is we only had seven treaties at the founding. We weren't planning on pulling out of any of them at that particular time. We now have many thousands of treaties. I don't think they envisioned the numbers that would later come up in the 20th century. As you know, when they drafted the Constitution, they had a lot of priorities to deal with relating to experiences they had had in the years before the Constitution. Terminating trees was just not high on the list of things to deal with. That's one theory that they just literally didn't think about it. We may not know the answer to what the founding understanding is. If you're not sure about that, but we know the government has operated a certain way with some amount of acquiescence between the legislative and executive branches for a long time, there's an argument for deferring to that in the absence of some better rule of decision. I will say courts often do that. They often in foreign affairs give a lot of weight to those kinds of practices. Not surprisingly, the executive lawyers who have to reason through these things on behalf of the president give a lot of weight, of course, when they advise presidents about what they can do. I think understandably, they look to what's been done frequently in the past. I don't think that's an unfair thing for executive lawyers to look to. Even Congress, surprisingly, maybe Congress, when they have hearings on some of these issues, they actually sometimes just recite long bouts of practice as if that were important as well. If all three branches are looking to it, then it does seem like it is a relevant part of our interpretive landscape. I just want to underscore something you said. Courts rely on this more of reasoning. It's not just courts, it's the Supreme Court. Supreme Court has. Especially in separation of powers cases, especially in foreign affairs cases. Is that fair? Absolutely fair. Just to give one example in foreign affairs, the case that many people know about the Zivotowski case about the president's powers relating to recognition of foreign governments, a large part of that opinion is that the president has this power not because it's specifically in the text, but because it has been the practices of government for a very long period of time. Another other separation of powers cases from the Supreme Court that have the same style of reasoning. Again, if the texts were absolutely clear, there'd probably be less reason to do that. But many separation of powers issues don't have clear text for a variety of reasons. Last constitutional question. Some people would say the text is clear and that the vesting clause speaks to this. Briefly, and you can fill in the arguments, the vesting clause is the idea that the executive power is independently of other conferrals of power given to the president and that therefore all executive power not otherwise allocated in Article II or Article I or somewhere else resides in that vesting clause and that the power to terminate treaties would flow from that. What about that argument? Yeah, there's some smart academic proponents of that idea. Although I don't think the majority of people writing about constitutional law agree with it. What we do know is the Supreme Court, at least so far, has not agreed with it. The only advocate on the Supreme Court of that theory really has been Justice Thomas and even Scalia when he was still on the court dismissed it out of hand as not an appropriate source of authority. The reason to be skeptical of it, two reasons, one, it would smuggle into that first clause of Article II a large and unspecified batch of powers into the executive and one might be wary of just allowing that much argumentation for the executive branch. And interestingly, I've looked at all of the founding debates at one point many years ago when I was writing about this. You can't find any discussion of this theory, the vesting clause theory, in the thousands of pages of state ratifying debate. They were debating everything else. They were all worried about replicating King George and giving too much executive power. Nobody seemed to think, advocates or opponents of the Constitution, that that clause was giving some package of powers. And I don't always want to put weight on what's not in the record, but it's surprising there's no record of anybody thinking that out loud. And then maybe the really telling point for treaty termination, no president thought the vesting clause gave them the treaty termination power throughout the first 100 years of American history. In fact, the practice was they weren't sure, but they thought probably they had to go to Congress and nobody argued they had this implied power under the vesting clause. It'd be kind of weird for the executive not to know they have this big font of authority if it really weren't understanding of that period. So, you know, if you believe in that, that's obviously an easy solution. You could just say, it's not in the text, it all goes to the president, but the Supreme Court has not gone that direction. And I don't think there's enough evidence in the founding period to embrace that idea. Okay. So, we've been talking about, we basically just discussed how the president could probably terminate the NATO treaty. Just one last question on this. In his power to terminate the NATO treaty, is it your view that he has to comply with the one year one year notification requirement? In other words, the practices that the president can withdraw, but is the practice that the president has to withdraw with the terms of the treaty, i.e., I guess exercising a take care power or something like that, or does he just have the power to blow it off altogether? Yeah, I think it's almost a logical point. And even aggressive presidents on termination have generally accepted that if they use one of these withdrawal clauses, they have to follow the notice period. There's a logical reason which is they could say they're out in one minute, but the rest of the world's going to assume you're in until the period has elapsed. So, you can say a lot of things, but technically you'd have to wait until it's understood that you're out. And interestingly, even this president and other presidents who have exercised the authority withdrawal have almost always done it understanding they have to wait for the time period to elapse. And when President Trump, I'll just give an example, his first term initiated withdrawal from the Paris Climate Change Treaty, that would have a long period the way it was structured several years. He waited until it was over. And he's been aggressive about a lot of things, but seemed to accept that at least that's one limit. It's not obviously a major limit, but for NATO, it would mean we'd have to wait a year before a withdrawal was effective. Yeah. I'll just note before moving on to the statutory issue that one oddity of the 1949 treaty, as you know, is that there's a duty that the notice of the termination be given to the United States, not the United Nations, but you have to notify the United States. So, in this case, the United States will have to notify itself of President Trump. It is, you know, it just means nobody thought we would ever withdraw from this cornerstone of Western defense. And indeed, I would say until now, one of the points of very bipartisan agreement in the country was in the value of NATO. So, this is a change in understandings in the country that, and also in the world, that relates to one other thing, though, which is one reason why presidents assert that they can do these withdrawals is under international law, notices received by a head of state are just presumptively deemed to be valid ones, ones that trigger these periods of notice. And it is a and if there were ever any doubt, obviously, Trump is receiving his own notice, weirdly, if he if he initiated withdrawal here. But in any event, even another depository would deem the president's notice to be a valid one just presumptively, because heads of state are just thought under international law to have this sort of authority. Okay, now we're going to move on. To the harder question, which is Senator Rubio, when he was a senator, now Secretary of State, Rubio joined with Senator Kane and sponsoring a bill because he was very worried about President Trump's first term threats to withdraw from NATO. And they sponsored a bill that ended up being a law. I think it was enacted in late 2023. I'm just going to read you the main provision of it. The president shall not suspend, terminate, denounce or withdraw the United States from the North Atlantic Treaty. That's a quote. And then I'm paraphrasing, except with two thirds Senate consent, or an act of Congress. So basically, Congress saying, you can't do this thing that you've been doing for 100 years, without getting our buy in either congressional buy in or two thirds Senate buy in. So how does that change the legality of the issue? Yeah, and I, my own view is that really does have a significant effect on the legality. I looked at the voting margins, by the way, on that. And it passed, as I would have expected with bipartisan majorities. The Senate vote on that was 87 to 13, by the way, with Rubio and others joining it. And in Trump's first term, when he started grousing about NATO, there was a lot of pushback by Republicans, as well as Democrats. I don't know whether we'd see as much this time. But we what we know is that we have a law on the books, a federal statute that was passed by two houses of Congress signed into law by the past president. And, you know, the strong presumption in American law is that presidents have to follow the law and duly enacted statutes are binding on the government. So that puts Trump in a very different posture, I think, than just trying to pull out of a treaty where Congress is silent, where it hasn't tried to legislate to the contrary. And it really puts at least the strong burden of proof on the president to explain why they don't have to follow a duly enacted statute. And I think that should become difficult for the president. It's not that the president, there's never I'm not saying the president could never disregard a statute. We know there are a few instances where Congress might overreach and a president might have that ability. But it should be a pretty narrow set of instances where we would accept that a president can disregard a duly enacted law. And I certainly think the presumption should be against the president when we get get in that posture. Okay, but before I ask you why, and I've got some thought coming too, I just want to point out, I think you agree with this, the Office of Legal Counsel and Justice Department has issued opinions that takes an extremely robust view prior to this event, going back to the first term and indeed, in a series of opinions, legal opinions going back decades, that builds on some related powers about the president's power or diplomacy, the president's powers to negotiate and the like. And in an opinion, I think in 2020 about the Open Skies Treaty, which involved, I think it was congressional notice before they pulled out, OLC said that that congressional statute is not binding on us. And I just want to read one sentence from that. This is the key sentence that makes me think that this OLC certainly is going to say no problem, Mr. President. The sentence from the, and I'm not going to go through the analysis from OLC is Congress cannot regulate the president's decision to exercise a right of the United States to withdraw from a treaty. And they talked about the president's exclusive authority to execute treaties and to conduct diplomacy. They viewed the drawing, the best in clause in the light. So we don't have to, you don't have to answer that directly, but I'm just wondering, I have no doubt that Trump will get permission from the Justice Department, especially since they have to do whatever he says. And his interpretation is binding on it. But how would the court think about it differently? I mean, is it because that there was this practice of concurrent authority going back to the beginning? Is it because the more recent 100-year practice is just about presidential power to terminate in the absence of congressional restriction? How would, how would you, or how would the court, do you think, think about it? Yeah. So I think we, everybody can accept there probably are some examples where the president has some exclusive authority. That would be authority that Congress just can't restrict. And the one major foreign affairs case we have is that Zivotovsky case from 2015, where the Supreme Court did hold that Congress can't restrict the president's power to decide which governments to recognize and what territories they have. But one of the things the court emphasized there a lot was the longstanding history, not only of presidents doing recognition, but insisting that it was exclusive and pushing Congress back whenever Congress, even in the 19th century, started to try to intrude on that domain. So we had a much longer history of, certainly the executive maintaining that it was exclusive, and really Congress, in a number of ways, backing off from efforts to regulate the executive. The picture does look different to me for a treaty termination for two reasons. One, so for recognition, nobody ever thinks the president has to start by going to Congress to decide on recognition. It's, we're already starting with unilateral presidential action, and then asking another question about whether Congress could come in. For treaties, we know that Congress has to come in at the beginning. So we're not starting out in a kind of unilateral presidential space in the way we would say for recognition. And the history, to my mind, looks different. The first hundred years of American practice as presidents worked with Congress to terminate treaties and appeared to believe they needed to do so and did not claim, unlike for recognition, that they had some exclusive domain here. And then you've adverted to the other part of the answer, which is even in the 20th century, when they started being more unilateral, they for the most part did not insist they could do it in the face of statutory commands. To the contrary, we have seen that assertion pretty recently. You mentioned the open skies opinion from 2020. But interestingly, I looked at an opinion OLC gave two years before that. Trump was thinking about pulling out of the NAFTA trade agreement. At that point, he didn't, but he was thinking about it. OLC decided he had the authority. But a large part of their opinion is he has that authority because Congress has not tried to restrict it. I looked back this morning. So a big part of their reasoning was he has this authority because Congress has not limited it. That would all be irrelevant if it's true that Congress can't regulate at all. And within two years now, they're now saying in the open skies treaty that that's all irrelevant. But that is not fully consistent with the way they approached it even two years earlier. So we don't have a long tradition of some acceptance by the government institutions that Congress is just disabled from the space, particularly given that we know they have to be involved in the space to create these obligations like the NATO agreement. And so I just don't think there's enough history there to argue that somehow Congress is foreclosed from regulating at all. And since the presumption in my mind, and this is like Justice Jackson's views in the Youngstown case, the presumption should be very much against finding one of these exclusive rights of authority because once you say something's exclusive, there are no checks and balances on the topic anymore. The president has no checks at all legally. So we ought to we ought to burden ought to be very heavy against the president on this. I don't see him caring it for this issue, but you're absolutely right about what his lawyers will likely argue. They'll argue that because it concerns foreign affairs and diplomacy, Congress has no ability to limit his decision making. But I don't think that's true. And if you think about that, what can the United States do in foreign affairs? Oh, impose tariffs. Well, it turns out Congress can limit that. And the Supreme Court just upheld their limits on the tariff laws. Why? Because in part because they're in statutes that Congress has passed. And we assume the president is stuck with those statutes. So I think that may be a precedent that would hurt his chances as well. Okay, several follow-ups. First, I just I agree with everything you just said, but some qualifications. Jackson definitely in his category three in Youngstown and suggested there's a heavy burden. It was very hard for the president to prevail in category three. I'll just point out that in both Zivotowski and in Trump versus United States where the president prevailed in that category three arena, the court didn't pause in ever any idea that there were some huge burden for the president to overcome. They just didn't seem to think that at all. They just looked at whether there was an exclusive power or not. So I agree that's a good description of Jackson, but it's not even the way the court proceeded in Zivotowski. I don't think you disagree with that. Is it? No, I don't disagree with that. I view that as more specific to the kind of issue in Zivotowski. But if I were in the executive branch, of course, I would argue probably more broadly than what I've just said. You could read the case more broadly if you wanted to, for sure. Does your argument that in talking about the president, the fact that in the Zivotowski case where the president recognizes he didn't even need to go to Congress, that's just a unilateral presidential power that he can effectuate. Does that mean you would think about this congressional restriction? You might think about the congressional restriction differently if this were a pure executive agreement that the president made under his own Article Two power, which it wasn't. Yeah, certainly some of those. So if we think there might be some sole executive agreements, those are the kind the president makes on his or her own authority. There are probably some kinds of those that might actually fall into exclusive presidential power. So one of the earliest sole executive agreements Madison made for exchange of prisoners of war and humane treatment of the prisoners in the war of 1812, it may be that's like in a domain where the president not only can make an agreement, but really is the exclusive actor and there might be some limits on what Congress could do in that commander in chief space. But I wouldn't define it as to whether the president happened to make it on his or her own because they do that aggressively as well. I would want to know the subject matter. And since we know that, I don't think anybody argues, I don't as far as I know that the president could have made the NATO agreement without the legislative branch, at least that's my view anyway, and they certainly didn't. At least there we know we're in a space where the president thought they had to get the Senate involved. And I would also add, I would say was always pretty settled in American history that the president could act for recognition issues they always had. It's still debated whether the president can act on their own ever for pulling out a treaty. I think the better answer is they now can, but given that we're even debating that, it's really pushing it to say not only can they do this contested thing, pull us out of a treaty on their own, but they can somehow disable the legislative branch across the board on that same topic. I just think that's very aggressive kind of argumentation. But I can imagine someone arguing something like this, that look, there's a treaty, the Senate, they follow the treaty process, the treaty that they agreed to has a termination provision, and the president has a concurrent authority to exercise that maybe the Senate where the Congress could have withdrawn if they wanted to exercise that power. But there haven't been, I don't think a whole lot of statutes like this statute that reports to restrict the president from withdrawing. I agree. And you might think that the president, that where does Congress get the power to kind of interfere with a treaty? Now, so which makes me think about the last in time rule, the rule that the last in time between a statute and a treaty prevail. And is that the reason why Congress can come in here and change the termination rule? Is it something like whatever its necessary proper powers are plus the last in time rule? Is that what's going on here? Or I guess I'll stop there. I mean, I don't think it's exactly right, but I agree with you that we all agree. And it's always been settled that a majority of Congress can just nullify the domestic effects of a treaty the day after the president ratifies it. And if they can get the statute through. Now, that's not quite the same. The international effects. Exactly. So it's not quite the same because it wouldn't change the international effects. Although we as a practical matter, we might then absolutely need to withdraw for in kind of permanent a breach domestically. And in fact, some of the early presidential withdrawals in the early 20th century was because Congress had started to override the trade treaties. And the presidents felt like they had to get out at that point, because of why be in breach. I don't think it's quite the same as that. Although that's probably, you know, like adjacent to this. I think the necessary and proper clause certainly gives Congress a lots of powers to implement treaties that's always been settled to provide standards for what we do under the treaties. Imagine if in the NATO treaty, the Senate has said we agree to this treaty, but you can't use Article 13 to pull out unless you come back to us. Well, that would have been maybe part of their advice and consent to the tree. But if they can do that, and I think they probably could have done that, it's not clear why Congress has less power to do that. You'd have to have an explanation why the Senate could have done it, but somehow Congress cannot do it. I'm not sure what that explanation would be. Okay, so it seems like there'd be strong arguments in any event, very strong arguments against the president's power to terminate in light of the statute. But then the question comes, can anybody sue? Can this, because if no one can sue to vindicate Congress's exercise of authority here, the president can quote unquote get away with it. So what do you think about the like the plausibility of someone either having standing to sue or whether this is will be viewed by courts as a political question? Yeah, I, what we do know from the case law is that it's unlikely the courts would allow Congress to sue. And you know some of these cases as well as I do the court has just really been strict in recent years about letting Congress sue the executive over things like this. So I'm thinking that's not likely to, there'd be some senators members of the House who would like to sue, but I doubt they'll be allowed to do it. So the question is whether there are private parties who have enough of an injury if, if we pull out a NATO to justify what we would call standing, there might be, and they would have to be want to sue. But I was thinking to myself, there may be contractors to NATO, the US contracts who would lose money if we pull out a long term contracts or even employ US individuals who are employed to NATO, they're not US government employees, but they work for NATO. They would lose their jobs if they would, if the US pulled out, those are plenty enough harm to generate what we call standing terms of the economic harm. So if there are people like that or companies like that, then they might have standing. And I actually think standing is the most difficult issue to get this to court. If you could find some parties, probably private parties with an economic harm from the US, because remember their allegation would be, we will lose money because Trump is violating the law. That's usually enough to get you into court if, and then we, a lot of cases against Trump are like that. So if you can find somebody with an injury like that who has standing, then actually I think there's a reasonable chance of getting to the, to the merits. Now, the big doc doctrine you mentioned that you might otherwise think about as the political question doctrine. And in the lower courts, I've looked at this, you know, they do apply that doctrine with some regularity to dismiss difficult foreign affairs cases. But one signal I think the Supreme Court has given is that doctrine does not have much life when there's a direct conflict between a statute and presidential action. And in the first part of the Zivotosky case, the initial one, that seemed to be the gist. Most of the justices, except for Breyer, just dismissed the political question doctrine. They said it is for the course to decide whether the president has to follow a statute. That was how they defined the issue in Zivotosky. So even though I had lots of political repercussions, all about the Middle East and everything else, the court thought when you have a direct conflict between a statute and presidential action, the only arbitral body available at that point is the court. Because Congress has done what it can. It legislated in 2023 here, presidents saying no. And it looks like they might say that's not a political question. They can decide the constitutionality of that statute. So I actually think my inclination a few months ago, and I was thinking about this, would be really hard to get this to court. But I think if some private parties emerge who would lose money, we might actually see some real litigation over it. And remember, we have a year. If Trump actually starts the notice process, that's enough time for litigation to unfold and see what the courts are willing to do about it. So I think there's actually a real chance. Okay. Last question. I want you to talk about Goldwater versus Carter. And this was about treaty withdrawal and the Supreme Court and complex decision decided not to adjudicate. And I'm wondering if you just explain briefly what happened in Goldwater, but also, do you think Zivotosky changed Goldwater or do you think Goldwater is distinguishable or both? Yeah, I'll start with that. I'll explain what Goldwater is, which is President Carter, when he was recognizing mainland China in the 70s, decided as part of that he needed to pull the US out of the mutual defense treaty we had had with Taiwan since the 50s. And he did it unilaterally. It probably would have been controversial in Congress because of his China policy was controversial. That got litigated all the way up to the Supreme Court. And the four of the justices said it was a political question, deciding whether he could terminate this treaty or not. There was a fifth vote to dismiss the case by Justice Powell, who said it wasn't really right from his perspective because Congress really hadn't pushed back. There was no resolution even in the Senate to oppose it. And Powell said he didn't think it was a political question, but he thought the courts in these cases ought to wait until there's really kind of an impasse between the two branches. But I actually think both the plurality in Goldwater and of course Powell's views are very differently implicated here because I don't think the Goldwater plurality was talking about a situation when there's a clear statute on point and the president is saying, I just don't have to follow that statute. And in any event, Zivotosky is a supplement because that's a holding of the majority of the court more recently that basically says, if the question is whether the president has to follow a statute, even in foreign affairs, it's not a political question. It's a question for the courts. And Goldwater was not faced with that. There was no statute in Goldwater, not even a resolution or anything. And then of course, Powell's view, even easier to show it would be met here, he said, Congress, if you really feel strongly about it, pass a law and then we'll decide, well, that's what Congress has done. So I actually think Goldwater is pretty easy to distinguish and it's not a majority holding in any event. And I think the court today, as far as I can read them, has a kind of a narrow view of the political question doctrine, at least when Congress has actually taken some action. All right. Great analysis, Kurt. Thanks very much. Appreciate it. It's been fun. Thank you.