[Published 24 hours before Inauguration.]
Calm down, folks. No President can just cancel a treaty, so cool it.
Many of my liberal brethren are beside themselves at the thought of the Trump Foreign Policy Juggernaut running roughshod ’round the realms, tearing up treaties (don’t practice your alliteration on me). Many security hawks and business-oriented Republicans, especially in the export community, are likewise fearful. Of course, given the rhetoric of the campaign trail, it’s not a completely irrational fear; Candidate Trump alluded to as much on numerous occasions, and he has reiterated his disdain for NATO in the transition. But by the same logic, Guantanamo Bay (the prison camp, not the naval base) would have been vacant years ago, we would have pulled out of Iraq by the end of 2009, and Wall Street’s bankers would have been fully brought to heel twenty minutes later. None of that happened, because the campaign rhetoric did not match the reality of governing in a republic.
Look, I’m disappointed that President Obama couldn’t get those things done. But such shortcomings (not failures—shortcomings) should give solace to liberals and fearful Republicans, and at the same time give pause to those who gleefully anticipate the shredding of a stack of international agreements. Even with a sympathetic majority, no president can just ramrod his agenda through the Congress. He can’t foist laws on an unwilling legislature, and he can’t unilaterally overturn statutes. That is the very nature of separation of powers. The President takes an oath to uphold the Constitution—and that means upholding the Laws of the United States. The Laws of the United States include treaties, which are even harder to get rid of than are statutes. Two reasons…
First, the Supremacy Clause, which gives treaties just as lofty a position in the hierarchy as federal statutes. In order for a nation’s treaty obligations to end, the treaty must be denounced, which necessitates the repeal of its enabling statute—which in turn requires a concerted effort by a cohesive majority on Capitol Hill. It might as well require delivery of the printed text on a golden chariot pulled by a team of six unicorns. It’s that unlikely.
Why? Because on the issues of trade (NAFTA, GATT), collective security (NATO), and less sexy* issues like private international law, which I handle, there is no such thing as a cohesive majority on the Hill that is intent on abrogating our treaty obligations—partisan statistics notwithstanding, and notwithstanding criticism from both sides of the aisle that our treaty partners don’t shoulder a fair share of various burdens.
In short, no repeal, so no denunciation, so no unilateral change to our obligations.
Second, the language of most treaties keep them in force for a period of time following denunciation. Even if Congress does hand a President an Alexandrian sword (it won’t), this Gordian Knot can’t be severed in a clean stroke.
Look no further than Brexit as an example. Until the Prime Minister pulls the trigger, the clock doesn’t start, and it remains to be seen whether the referendum held last June must be ratified (for want of a better word) by Parliament; as recently as Tuesday, the Prime Minister tacitly acknowledged that parliamentary action is necessary: “And it is why, as we repeal the European Communities Act, we will convert the ‘acquis’ – the body of existing EU law – into British law.” (Italics mine.) Even if the government had the authority to withdraw from the 1957 Treaty of Rome without Parliamentary action, it must give two years’ notice to Brussels before the UK can bolt the EU. For the time being, the Kingdom is still very much intertwined with the Continent.
Pertinent to the United States, the North Atlantic Treaty requires a full year of notice before a member state is allowed out of NATO. NAFTA, six months. The GATT and related WTO agreements, also six months.
My bailiwick, the Hague Service Convention? Up to 54 months, depending on how you read Article 30. Likewise my other bailiwick, the Evidence Convention (Article 41).
So, even if the incoming government succeeds in passing repeal/denunciation measures, the treaties at issue will remain in force at least briefly. Chaos won’t ensue, just as it hasn’t come about in London or Edinburgh (or Cardiff or Belfast) in the wake of the Brexit referendum. We’ll have time to answer the thousand questions remaining (ahem, “what comes next?“), because the entire purpose of a withdrawal clause is to prevent such chaos. Sort of a prenuptial agreement, if you will.**
Now, all this is not to say the President can’t violate a treaty. Presidents have done so often, and with scant repercussions (tell me I’m wrong and I’ll counter with the Bureau of Indian Affairs), so President Trump might envision a series of violations without consequence. But I give him far more credit than that. After all, he beat the hell out of my candidate, and turned my mental electoral prediction machine into a rotary telephone (sure, it conjures up nice memories, but it can’t do its intended job anymore).
Whether a violation or a denunciation, the legal and economic ramifications of bailing out of modern treaty obligations—obligations to strong and sophisticated partners—are potentially catastrophic. That is a reality that the new President’s inner circle surely understood long before Election Day (he has spectacularly good lawyers, I assure you), whether or not the reality correlates to the rhetoric. That sympathetic majority in Congress won’t stay sympathetic if their constituents’ export numbers are facing the muzzle of a Howitzer.
What seems more likely is a series of retaliatory measures taken within treaty frameworks. An example: reciprocal taxes to offset the disadvantages American exports suffer due to value-added taxes when they reach foreign markets.*** The question remains whether such reciprocal taxes are viable or permissible under WTO agreements, but they are a far cry from attempts to shred those treaties.
Campaign rhetoric aside, our legal regime remains solid. It may be attacked, but it can withstand attack. It may be altered, but it will be altered according to a procedure and a timeline.
It won’t be shattered like so many teacups in a bull-infested China Shop.
* My apologies to the Hague Conference on Private International Law. You guys are aces in my book, but your treaties are pretty non-controversial, so they aren’t exactly fodder for political turmoil.
** Nobody likes to talk about a divorce at the engagement party, but we usually do in treaty negotiations. See Professor Laurence Helfer’s 2012 article, Terminating Treaties, for a far more in-depth and scholarly discussion of the pre-nup and its execution (his analogy, not mine—like Solozzo the Turk, I’m not that clever).
*** For more developed thoughts on a tougher trade stance, follow Bill Perry’s blog, US-China Trade War. Bill seems optimistic. I don’t share his optimism, but I am also not a complete pessimist regarding Trump trade policy.
Full disclosure: I’m a liberal Democrat who voted twice for Hillary Clinton (primary and general). I disagree with the incoming administration on just about everything, but trade policy is one area where I might find some common ground with the new government. Renegotiate NAFTA? You bet—I’d like to see Chapter 11 blown to hell. Renegotiating the GATT will never happen, but we don’t need to renegotiate it; we can have a pretty good scrum within the WTO’s Dispute Settlement framework.