Congress has approved legislation that would prevent any president from withdrawing the United States from NATO without approval from the Senate or an Act of Congress. The measure, spearheaded by Sens. Tim Kaine (D-Va.) and Marco Rubio (R-Fla.), was included in the annual National Defense Authorization Act, which passed out of the House on Thursday and is expected to be signed by President Biden.
The constitution only explicitly articulates the process for establishing treaties, not ending them. So it’s a bit of a gray area as to whether the president can end them by himself, since he can’t establish them by himself.
To my mind, it would seem exceedingly weird if establishing a treaty required the consent of the Senate but breaking one didn’t. What’s the argument to be made that the two aspects (establish/break) are so fundamentally different that the rules for the first aren’t also the rules for the second? Why does the president need consent to say yes but does not need consent to say no?
It’s definitely been done before, but also never directly contested. (In previous cases SCOTUS has avoided answering the question by saying they didn’t have jurisdiction.)
I don’t want to argue the specifics of breaking/establishing a general treaty (though i’m sure that is an amazingly interesting analysis). But I do want to discuss at a naive level the results of a US president refusing to enforce NATO. Without being overly factual, I understand NATO to be a mutual defense treaty ratified and renegotiated from the post-ww2 era til now. It was created by the US and former Allied Forces except Russia, to contain perceived Russian/Communist aggression.
From the genesis of this treaty( 1948), the US was understood to be the “enforcer” of it. Sure other nations would support the US and generally contribute to Article5, but in-practice and dollars, the US legitimized NATO.
So if a modern US president decided to publicly announce that he would no-longer respect NATO without additional justifications, how can the Senate enforce NATO without the US President and thus the Armed Forces support?
Sadly they would only have one option left, Impeachment. And that is such a fraught political process that it’s use and success would be in serious doubt. The House might vote to send Articles of Impeachment up to the Senate, but actually getting enough GOP Senators on board with removing a GOP President seems like a long shot. I think much of it would turn on who the Vice President is. If Trump somehow picks a more traditional Republican as VP, then there may be some desire in the Senate, from more moderate Republicans, to remove Trump. If Trump (as is more likely) picks some horrible ass-licker as VP, the GOP may look at the situation as having to remove both Trump and the VP and then end up with the Presidency falling to the Speaker of the House. While that might still be a Republican, this is also a pretty large embarrassment for the GOP, not something they will want to face lightly. And it’s also possible for the House to flip to the Democrats in 2024. So, the GOP in the Senate may be unwilling to accept removing a GOP President for a Democratic one. The Senate could try to engineer the transition of power such that a GOP care-taker President ends up in power (basically Gerald Ford’s path); but, one also wonders if the harder left wing of the Democrats would take a hard line against such a deal, seeing this as an opportunity to completely blunt a GOP Presidency. It wouldn’t work, we’d just end up one vote short for Conviction in the Senate for Impeachment. But, that’s the sort of political calculation which would need to be made.
Congress could also try to force the President’s hand by using budget votes and thew Power of the Purse. But, I don’t see Trump responding to that in a rational enough way to matter, This is a guy would would be completely willing to shutdown the US Government in a temper tantrum over a Happy Meal toy. He’;s not going to respond well to being told to play nice with our allies.