- President-elect Trump has warned that he may try to withdraw the US from NATO.
- Any attempt would run afoul of Congress and into uncharted legal waters.
- A legislative expert saw no signs that could favor Congress in this largely untested area.
In 2018, President Donald Trump privately warned that he might withdraw the US from NATO. He complained that other alliance members were not contributing their fair share of defense spending, leaving the American taxpayer to pick up the tab.
Congress thought otherwise. He added a separate provision to the 2020 National Defense Authorization Act, which sets funding for the US military. Section 1250A specifies that the president cannot unilaterally withdraw America from NATO without an act of Congress, or unless two-thirds of the Senate disagrees.
If Trump continues through his second term, which begins Monday, the recall will fall into a legal gray area that is likely to be resolved in court and that could favor Congress. The problem is that while the Constitution specifies that the president has the power to negotiate treaties, it does not say whether he has the power to break them.
“Although Congress has to some extent regulated the President’s withdrawal from a treaty in the past, Section 1250A is the first statute in which Congress has prohibited unilateral presidential withdrawal from a treaty,” according to a report by Karen Sokol, a legislative attorney. for the Congressional Research Service, which analyzes issues for Congress.
The Founding Fathers were rightfully proud of creating a government of checks and balances, where neither the executive, legislature, or judiciary could monopolize power. But they would probably be less than thrilled with the dispute over NATO, which America was instrumental in forming 75 years ago, when a devastated Europe appeared easy prey for Soviet invasion.
Normally, the executive branch handles most foreign policy and national security matters, such as treaty negotiations, although Congress exerts considerable influence through defense budgets, ratifying treaties, and approving arms sales. Powers between the executive and legislative branches are clearly defined enough that for the most part, the system works.
When the executive and legislature cannot agree, the courts must intervene. Yet of all the countless cases that end up in American courts, foreign policy is the area that judges are most reluctant to touch. In the case of withdrawal from NATO, the courts will look for legal precedents in an area where they are lacking.
The White House has long maintained that it can withdraw from treaties in the absence of congressional opposition, such as when the Carter Administration withdrew from a mutual defense treaty with Taiwan, which Senator Barry Goldwater and other members of Congress then appealed. in the courts. “Ultimately, the Supreme Court declined to weigh in on the dispute,” Sokol noted. “With a large number of justices concurring in the decision to dismiss the appeal, concluding that the case presented a political issue that was properly addressed by the political branches rather than the judiciary — a determination not uncommon in cases which include the separation of powers in the fields of foreign policy”.
US special operators parachute from an MC-130J Commando II aircraft during a December exercise with a NATO ally. US Air Force
In 2020, at the end of Trump’s first term, the Department of Justice published an opinion that affirmative withdrawal of the treaty is an exclusive presidential power that Congress cannot limit. And the Supreme Court has ruled that the executive branch has the authority to recognize foreign governments, even though that power is not specified in the Constitution.
However, past cases suggest that courts may reject this argument. Sokol points to the 1952 Youngstown Steel case, when the Supreme Court ruled against President Harry S. Truman’s attempt to seize steel mills during the Korean War, on the grounds that it violated congressional intent.
“Under the Youngstown framework, courts evaluate presidential claims to authority based on what Congress has or has not said on the matter,” Sokol wrote. Under this standard, Congress has expressed its intent for the US to remain in NATO by enacting Section 1250A.
Sokol also believes the courts could reject the Trump administration’s assertion that only the executive branch can decide to withdraw from treaties. “A court may find that a president’s claim to exclusive constitutional power to withdraw from a treaty is unpersuasive given that the Constitution is silent on treaty withdrawal powers and that Article II makes treaty entry a joint power between the President and the Senate.”
Either way, asking whether Trump has the power to withdraw from NATO is entering largely uncharted legal waters. “Ultimately, it is uncertain how a court would rule on the constitutional allocation of the treaty withdrawal power based on its analysis of the text and structure of the Constitution, relevant Supreme Court precedent, and historical interbranch practice,” he concluded. Sokol.
Trump may not need to formally withdraw from NATO to damage it. For example, a war game run by British experts last year found that Trump could sabotage the alliance simply by getting America to do less. This could include minimizing US participation in NATO exercises or limiting US officers serving as NATO commanders. The effects of a US withdrawal would be global and difficult to predict.
Michael Peck is a defense writer whose work has appeared in Forbes, Defense News, Foreign Policy magazine, and other publications. He has a master’s degree in political science from Rutgers Univ. Follow him Twitter AND LinkedIn.
