Article 2, Section 2, Clause 2 — Breach And Termination Of Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution sets forth a definite procedure by which the President has the power to make treaties with the advice and consent of the Senate, but it is silent on who has the power to terminate them and how this power should be exercised.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn1art2 " See, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (plurality opinion) ( “[W]hile the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty.” ). ") The United States terminated a treaty under the Constitution for the first time in 1798. On the eve of possible hostilities with France, Congress passed, and President John Adams signed, legislation stating that four U.S. treaties with France “shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.” [2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn2art2 " Act of July 7, 1798, ch. 67, 1 Stat. 578 (An Act To Declare the Treaties Heretofore Concluded with France, No Longer Obligatory on the United States). ") When he was Vice-President, Thomas Jefferson referred to the episode as support for the notion that only an “act of the legislature” can terminate a treaty.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn3art2 " See Thomas Jefferson, A Manual of Parliamentary Practice 52 (Samuel Harrison Smith ed., 1801) ( “Treaties being declared, equally with the laws of the U[nited] States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.” ). ") But commentators have since come to view the 1798 statute as a historical anomaly because it is the only instance in which Congress purported to terminate a treaty directly through legislation without relying on the President to provide a notice of termination to the foreign government.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn4art2 " See, e.g., Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 789 (2014) [hereinafter Bradley, Historical Gloss]; Restatement (Fourth) of Foreign Relations Law § 313, reporters’ n.2 (2018) [hereinafter Fourth Restatement]; Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 207 (2001). ") Moreover, because the 1798 statute was part of a series of congressional measures authorizing limited hostilities against the French Republic, some view the statute as an exercise of Congress’s war powers rather than precedent for a permanent congressional power to terminate treaties.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn5art2 " See S. Rep. No. 34-97, at 5 (1856) (Senate Foreign Relations Committee describing the 1798 treaty abrogation statute as a “rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress alone, and under any circumstances, the power to annul a treaty.” ). Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington, J.) (treating the 1798 statute as one in a bundle of congressional acts declaring a limited “public war” on the French Republic). ")

During the nineteenth century, government practice treated the power to terminate treaties as shared between the Legislative and Executive Branches.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn6art2 " For analysis of nineteenth century understanding and practice related to treaty termination, see Bradley, Historical Gloss, supra note 4, at 788–801; Samuel B. Crandall, Treaties, Their Making and Enforcement 423–66 (2d ed. 1916). ") Congress often authorized[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn7art2 " See, e.g., Joint Resolution of April 27, 1846 Concerning the Oregon Territory, 9 Stat. 109 (providing that the President “is hereby authorized, at his discretion, to give to the government of Great Britain the notice required by” a convention allowing for joint occupancy of parts of the Oregon Territory); Joint Resolution of June 17, 1874, 18 Stat. 287 (authorizing the President to give notice of termination of a Treaty of Commerce with Belgium). ") or instructed[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn8art2 " See, e.g., Joint Resolution of January 18, 1865, 13 Stat. 566 ( “Resolved . . . That notice be given of the termination of the Reciprocity Treaty . . . and the President of the United States is hereby charged with the communication of such notice to the government of the United Kingdom.” ); Joint Resolution of March 3, 1883, 22 Stat. 641 ( “[T]he President . . . hereby is directed to give notice to the Government of Her Britannic Majesty that the provisions of each and every of the articles aforesaid will terminate . . . on the expiration of two years next after the time of giving such notice.” ). ") the President to provide notice of treaty termination to foreign governments during this time. On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn9art2 " In 1855, the Senate authorized President Franklin Pierce to terminate a Friendship, Commerce, and Navigation Treaty with Denmark, and the President subsequently relied on the Senate’s action in carrying out the termination. Franklin Pierce, Third Annual Message (Dec. 31, 1855) in 7 A Compilation of the Messages and Papers of the Presidents 2860, 2867 (James D. Richardson ed., 1897) ( “In pursuance of the authority conferred by a resolution of the Senate of the United States passed on the 3d of March last, notice was given to Denmark” that the United States would “terminate the [treaty] at the expiration of one year from the date of notice for that purpose.” ). ") Presidents often complied with the Legislative Branch’s authorization or direction,[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn10art2 " For example, after Congress enacted a joint resolution calling for the termination of the Oregon Territory Treaty, supra note 7, the Secretary of State informed the U.S. Ambassador to Great Britain that “Congress have spoken their will upon the subject, in their joint resolution; and to this it is his (the President’s) and your duty to conform.” S. Doc. No. 29-489, at 15 (1846). As required by the Joint Resolution of January 18, 1865, see supra note 8, the Andrew Johnson Administration terminated an 1854 treaty with Great Britain concerning trade with Canada. Letter from William H. Seward, U.S. Sec’y of State to Charles Francis Adams, Minister to the U.K. (Jan. 18, 1865) in Papers Relating to Foreign Affairs, pt. 1, at 93 (1866). ") although they sometimes resisted attempts to compel termination of specific articles in treaties when the treaties did not authorize partial termination.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn11art2 " See, e.g., Rutherford B. Hayes, Veto of the Chinese Immigration Bill, H.R. Exec. Doc. No. 45-102, at 5 (1879) (disputing that Congress can direct the abrogation of specific articles in a treaty, but accepting that the “authority of Congress to terminate a treaty with a foreign power, by expressing the will of the nation no longer to adhere to it, is . . . free from controversy under our Constitution ” ). ") On other occasions, Congress or the Senate approved the President’s termination after-the-fact, when the Executive Branch had already provided notice of termination to the foreign government.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn12art2 " See, e.g., Joint Resolution to Terminate the Treaty of 1817 Regulating the Naval Force on the Lakes, 13 Stat. 568 (1865) ( “[T]he notice given by the President of the United States to [the] government of Great Britain and Ireland to terminate the treaty . . . is hereby adopted and ratified as if the same had been authorized by Congress.” ); Joint Resolution of Dec. 21, 1911, 37 Stat. 627 (1911) (stating that President Taft’s notice of termination of a treaty with Russia was “adopted and ratified” ). ")

At the turn of the twentieth century, a new form of treaty termination emerged: unilateral termination by the President without approval by the Legislative Branch. This method first occurred in 1899, when the McKinley Administration terminated certain articles in a commercial treaty with Switzerland,[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn13art2 " See Letter from John Hay, U.S. Sec’y of State to Ambassador Leishman (Mar. 8, 1899) in Papers Relating to the Foreign Relations of the United States 753–54 (1901). ") and then again in 1927, when the Coolidge Administration withdrew the United States from a convention to prevent smuggling with Mexico.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn14art2 " See Letter from Frank B. Kellogg, U.S. Sec’y of State to Ambassador Sheffield (Mar. 21, 1927) in 3 Papers Relating to the Foreign Relations of the United States, 1927, at 230, 230–31 (1942). ") During the Franklin Roosevelt Administration and World War II, unilateral presidential termination increased markedly.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn15art2 " See Bradley, Historical Gloss, supra note 4, at 807–09; Authority to Withdraw from the North American Free Trade Agreement, 42 Op. O.L.C. slip op. at 11 (Oct. 17, 2018); Fourth Restatement, supra note 4, § 303 reporters’ n.3. ") Although Congress at times enacted legislation authorizing or instructing the President to terminate treaties during the twentieth century,[16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/breach-and-termination-of-treaties#fn16art2 " See, e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. <a href="/supremecourt/text/99-440" aria-label="supr