Into Justice Jackson’s Twilight: A Constitutional and Historical Analysis of Treaty Termination
Citation: 101 Geo L.J. 243 (2012)
Envision this scenario: a president, seeking a significant shift in foreign policy from the path of his predecessors, announces to the world that the United States is terminating a treaty between the nations. The overwhelming majority of Senators, two-thirds of which approved the treaty, strongly disagree with the decision; a majority of members of the House of Representatives, who, along with a majority of the Senate, approved enabling legislation, are similarly distressed. Consulting the Constitution, they discover that it is silent on the question of treaty termination authority. Seeking judicial relief, they are told that their claim is nonjusticiable, and should a president seek to terminate any of the other roughly 1,130 Senate-approved treaties on the books, they would be similarly without legal recourse. Imagine their further bafflement upon learning that the first time the United States terminated a treaty, only a decade after the Constitution was ratified, that termination was, without question, a power of Congress.