Validity of Congressional-Executive Agreements That Substantially Modify the United States' Obligations Under an Existing Treaty

• Court: Department of Justice Office of Legal Counsel
• Decided: November 25, 1996
• Status: Published

Opinion

Validity of Congressional-Executive Agreements that Substan­ tially Modify the United States’ Obligations Under An Exist­ ing Treaty

It lies within Congress’s power to authorize the President to modify substantially the United States’ domestic and international legal obligations under a prior treaty, including an arms control treaty, by making an executive agreement with our treaty partners, without Senate advice and consent.

N o v e m b e r 2 5 , 1996

M e m o r a n d u m O p in io n for th e

S p e c ia l A s s is t a n t to the P r e s id e n t and

L e g a l A d v is e r to th e N a t io n a l S e c u r it y C o u n c il

Y o u have sought our views on the question whether Congress can authorize the President to enter into an international agreement that substantially modifies the obligations which the United States would otherwise have under a pre-existing treaty, or whether only the Senate can do so, pursuant to the treaty-making power, U.S. Const, art. II, §2, cl. 2.1 We conclude that it lies within the power of Con­ gress to authorize the President substantially to modify the United States’ obliga­ tions under a prior treaty, including an arms control treaty. A “ treaty” in the constitutional sense2 has two aspects: it may state a judicially enforceable rule of domestic law; and it creates binding obligations between or among the parties in international law. (See Part I below.) It is well established that Congress has the power, by legislation, to modify the domestic legal effects, if any, of a treaty. (See Part II below.) Insofar as the treaty embodies international legal obligations, these may remain in force, even after an Act of Congress has superseded the treaty as a matter of domestic law; but the States that are parties to the treaty may consent to the modification of the obligations that the treaty imposes. (See Part El below.) If Congress authorizes the President to enter into

1The context in which you had originally raised this question was Congress’s consideration o f a proposed provision o f the Department o f Defense Authorization Act for Fiscal Year 1997, purporting to prohibit the United States from being bound by any international agreement that would substantively modify the Treaty on the Limitation o f Anti-Ballistic Missile Systems, May 26, 1972, U nited States-U .S.S.R., T.I.A.S. 7503, 23 U.S.T. 3435, unless that agreement was made pursuant to the President’s treaty-making power specified in Article II, Section 2, Clause 2 of the Constitution. W e had previously addressed another aspect o f that legislation. See Constitutionality o f Legisla­ tive Provision Regarding ABM Treaty, 20 Op. O.L.C. 246 (1996). Our use o f the term authorize necessarily contemplates the grant o f authority prior to taking legally effective action. We thus perceive no distinction between “ pre” -authorizalion and authorization in the present context. 2 It is important to distinguish the constitutional sense o f the term “ treaty,” which is relevant here, from other uses of the term in international or domestic law. “ The word 4treaty’ has more than one meaning. Under principles o f international law, the word ordinarily refers to an international agreement concluded between two sovereigns, regardless o f the manner in which the agreement is brought into force. Under the United States Constitution, o f course, the word ‘treaty’ has a far more restrictive meaning. Article II, § 2 , cl. 2, o f that instrument provides that the President ‘shall have Power, by and with the Advice and Consent o f the Senate, to make Treaties, provided two thirds o f the Senators present concur.’ ” Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982) (citation and footnotes omitted).

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an executive agreement with our treaty partners to modify those obligations, and those States consent to such modifications when the President proposes them, then the treaty obligations can be modified by executive agreement, without Senate advice and consent. (See Part IV below.)

I.

At the outset, it is essential to recognize the dual nature of treaties, as instru­ ments of both domestic and international law. As the Supreme Court has said,

[a] treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.

H ead M oney Cases, 112 U.S. 580, 598 (1884).3

3 See also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C J .) ( “ A treaty is in its nature a contract betw een tw o nations, not a legislative act. It does not generally effect, o f itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the U nited States a different principle is established. Our constitution declares a treaty to be the law o f the land. It is, consequently, to be regarded in courts of justice as equivalent to an act o f the legislature, w henever it operates o f itself without the aid o f any legislative provision.” ); Taylor v. Morton, 23 F. Cas. 784, 785 (C.C.D. Mass. 1855) (N o. 13,799) (Curtis, Circuit Justice), affd, 67 U.S. (2 Black) 481 (1862) (treaties are “ contracts, by which [sovereigns] agree to regulate their ow n conduct” and, under the Constitution, “ part o f o ur municipal law ” ), Goldwater v. Carter, 617 F.2d 697, 705 (D.C. Cir.), vacated, 444 U.S. 996 (1979) ( “ a treaty is sui generis. It is not just another law. It is an international com pact, a solemn obligation o f the United States and a 'suprem e Law ’ that supersedes state policies and prior federal laws. For clarity o f analysis, it is thus well to distinguish between treaty-making as an international act and the consequences which flow domestically from such act. In one realm the Constitution has conferred the prim ary role upon the President; in the other, Congress retains its prim ary role as lawmaker.” ); 1 W estel W oodbury W illoughby, The Constitutional Law o f the United States §3 17a, at 577 (2d ed. 1929) ("T reaties entered into by the United States may be viewed in tw o lights: (1) as constituting parts o f the supreme law o f the land, and (2) as compacts between the United States and foreign Pow ers.” ).

390 Validity o f Congressional-Executive Agreements that Substantially M odify the United States’ Obligations Under An Existing Treaty

A “ treaty,” therefore, has two aspects: insofar as it is self-executing, it pre­ scribes a rule of domestic or municipal law4 and, as a compact or contract be­ tween nations, it gives rise to binding obligations in international law.5

II.

Under the Supremacy Clause of the Constitution, treaties, like Acts of Congress, are made “ supreme Law,” U.S. Const, art. VI, cl. 2; Maiorano v. Baltim ore & Ohio R.R. Co., 213 U.S. 268, 272-73 (1909). Accordingly, “ treaty provisions, which are self-executing in the sense that they require no additional legislation to make them effective, are equivalent to and of like obligation with an act of Congress.” 6 Further, insofar as a treaty incorporates a rule of domestic law, the Supreme Court has long held that it may be modified or repealed by a later Act of Congress.7 See H ead M oney Cases, 112 U.S. at 599 (“ so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal” ); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) (“ Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.” ); A lvarez y Sanchez v. United States, 216 U.S. 167, 175-76 (1910) (“ an act of Congress, passed after a Treaty takes effect, must be respected and enforced, despite any previous or existing Treaty provision on the same subject” ); United States v. Stuart, 489 U.S.

4 As C hief Justice M arshall pointed out in Foster v. Neilson, 27 U.S. at 314, not all treaty provisions are self­ executing: they may require implementing legislation to be given their full effect. Many treaties are, however, self­ executing. For example, in United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (M arshall, C J.), the Court considered a treaty between the United States and France, ratified during the pendency of the appeal o f the condemnation o f a seized French vessel, that required that vessels seized by either nation should be restored if not yet definitively condemned. The Court held that the treaty controlled the disposition o f the prize: the treaty was effective o f its ow n force, without need o f any further legislative action, and thus provided the rule of decision on appeal, rather than a prior statute that would have authorized the vessel's condemnation. The Supreme Court has given “ self-executing” effect to numerous treaties. See Disposition by Treaty o f Territory or Property Belonging to the United States, 43 O p. A tt’y Gen. 96, 99, 103-04 & n.6 (1977) (Bell, A .G .) (citing cases), see also Samuel B. Crandall, Treaties: Their Afaking and Enforcement §73, at 162-63 & n.16 (2d ed. 1916) (discussing distinction between self-executing and non-self-executing treaties, and illustrating former category). s See The Vienna Convention on the Law o f Treaties, ait. 26 ( “ Every treaty in force is binding upon the parties to it and must be perform ed by them in good faith.” ), reprinted in Basic Documents in International Law 388, 400 (Ian Brownlie ed., 4th ed. 1995). Although not ratified by the United States, this convention “ is frequently cited . . . as a statement o f customary international law .” Review o f Domestic and International Legal Implications o f Implementing the Agreement with Iran, 4A Op. O.L.C. 314, 321 (1981). 6 Canadian Boundary Waters, 30 Op. A tt’y Gen. 351, 353 (1915) (citing Foster v. Neilson, 27 U.S. at 314; The Cherokee Tobacco, 78 U.S. ( I I Wall.) 616, 621 (1870); Chew Heong v. United States, 112 U.S. 536, 539 (1884); Head Money Cases, 112 U.S. at 599; and Whitney v. Robertson, 124 U.S. 190, 194 (1888)). See also Cook v. United States, 288 U.S. 102, 118-19 (1933); Exemption o f Resident Aliens from Military Service Pursuant to Trea­ ties — Bar to Eligibility fo r Citizenship, 42 Op. Att’y Gen. 373, 379 (1968). ’ There was some earlier authority to the contrary. See Thompson's Case, 9 Op. A tt’y Gen. 1, 6 (1857) (Black, A.G.) (“ Congress has no authority to abrogate a treaty made by the Executive, any more than the Executive has to abrogate a law passed by Congress.” ).

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353, 375 (1989) (Scalia, J., concurring in judgment) (Congress “ may abrogate or amend [a treaty] as a matter of internal law by simply enacting inconsistent legislation.” ); Congressional Authority to M odify an Executive Agreement Settling C laim s A gainst Iran, 4A 0p. O.L.C. 289 (1980).8 The rationale for this rule was set forth in 1855 by Justice Curtis, sitting as Circuit Justice. Justice Curtis wrote:

The first and most obvious distinction between a treaty and an act of congress is, that the former is made by the president and ratified by two thirds of the senators present; the latter by majorities of both houses of congress and the president, or by the houses only, by constitutional majorities, if the president refuses his assent. Ordi­ narily, it is certainly true, that the powers of enacting and repealing laws reside in the same persons. But there is no reason, in the na­ ture of things, why it may not be otherwise. . . . I think it is impos­ sible to maintain that, under our constitution, the president and sen­ ate exclusively, possess the power to modify or repeal a law found in a treaty. If this were so, inasmuch as they can change or abrogate one treaty, only by making another inconsistent with the first, the government of the United States could not act at all, to that effect, without the consent of some foreign government; for no new treaty, affecting, in any manner, one already in existence, can be made without the concurrence of two parties, one of whom must be a foreign sovereign. That the constitution was designed to place our country in this helpless condition, is a supposition wholly inadmis­ sible.

Taylor v. M orton, 23 F. Cas. at 785-86. Accordingly, it lies within the power of Congress to modify the substantive obligations that a treaty imposes upon the United States, or to authorize the Presi­ dent to modify those obligations, insofar as those treaty obligations are binding as a matter of domestic or municipal law. The advice and consent of the Senate are not necessary to achieve that outcome.

8 Sim ilarly, a treaty can supersede a prior A ct o f Congress to the extent that the two are incompatible. See Charlton v. Kelly , 229 U .S. 447, 463 (1913); United States v. Lee Yen Tai, 185 U.S. 213, 220 (1902); Canadian Boundary Waters, 30 Op. A tt’y Gen. at 352-53; Congressional Research Service, The Constitution o f the United States o f America: Analysis and Interpretation, S. Doc. N o. 99-16, at 505 (1982); Samuel B. Crandall, Treaties: Their Making and Enforcement §7 2 , at 161-62.

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III.

A.

The unilateral modification or repeal of a provision of a treaty by Act of Con­ gress, although effective as a matter of domestic law, will not generally relieve the United States of the international legal obligations that it may have under that provision. See Pigeon R iver Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934) (while an Act of Congress that conflicted with a treaty provision “ would control in our courts as the later expression of our municipal law . . . the international obligation [would] remain[] unaffected” ). Secretary of State Charles Evans Hughes (later the author, as Chief Justice, of the Pigeon R iver opinion) explained the position well:

a judicial determination that an act of Congress is to prevail over a treaty does not relieve the Government of the United States of the obligations established by a treaty. The distinction is often ig­ nored between a rule of domestic law which is established by our legislative and judicial decisions and may be inconsistent with an existing Treaty, and the international obligation which a Treaty es­ tablishes. When this obligation is not performed a claim will inevi­ tably be made to which the existence of merely domestic legislation does not constitute a defense and, if the claim seems to be well founded and other methods of settlement have not been availed of, the usual recourse is arbitration in which international rules of ac­ tion and obligations would be the subject of consideration.!9]

“ [W]e are bound to observe [a treaty] with the most scrupulous good faith . . . [0]ur Government could not violate [it], without disgrace.” The Amiable Isabella, 19 U.S. 1, 68 (1821). “ The foreign sovereign between whom and the United States a treaty has been made, has a right to expect and require its stipula­ tions to be kept with scrupulous good faith . . . .” Taylor v. Morton, 23 F. Cas. at 785.10 “ A party may not invoke the provisions of its internal law as justification

9 Letter for the Secretary o f the Treasury, from the Secretary o f State, Feb. 19, 1923, quoted in 5 Green Haywood Hackworth, Digest o f International Law § 489, at 194-95 (1943). 10C hief Justice (and form er President) Taft, sitting as sole arbitrator in an international dispute, stated that a treaty may repeal a statute, and a statute may repeal a treaty. The Supreme Court cannot under the Constitution recognize and enforce rights accruing to aliens under a treaty which Congress has repealed by statute. In an international tribunal, however, the unilateral repeal o f a treaty by a statute would not affect the rights arising under it and its judgment would necessarily give effect to the treaty and hold the statute repealing it o f no effect. Continued

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for its failure to perform a treaty.” Vienna Convention on the Law of Treaties, art. 27, reprinted in Basic Docum ents in International Law at 400.

B.

As with contracts of other kinds, however, the parties to a treaty may agree to modify the obligations to which the treaty gives rise. It is “ a general principle of [international] law recognized by civilized nations” that “ [a]ny legal position, or system of legal relationships, can be brought to an end by the consent of all persons having legal rights and interests which might be affected by their termi­ nation.” International Status o f South-West Africa, 1950 I.C.J. 128, 167 (July 11) (Separate Opinion of Judge Read). As a general rule of international law, there­ fore, “ [a] treaty may be amended by agreement between the parties.” Vienna Convention on the Law of Treaties, art. 39, reprinted in Basic Documents in Inter­ national L aw at 404.11 The principle was well stated in a study prepared for the Senate Foreign Relations Committee:

The amendment of a binding international agreement may be ac­ complished in a variety of ways including, among others, . . . by the consent of the parties . . . . Amendment or modification of an international agreement by consent of the parties is recognition of the fact that consent is the basis of international agreements. Accordingly, the parties are at liberty to change an international agreement regardless of its terms. For similar reasons, a later agree­ ment on the same subject involving the same parties that expressly or impliedly modifies an earlier agreement will be regarded as ef­ fecting the resulting change.

Treaties an d O ther International Agreements: The R ole o f the United States Sen­ ate, S. Rep. No. 53, 103d Cong., 1st Sess. 140 (Comm. Print 1993) (“ S. Rep. 53” ).12 18 Am. J. In t’l L. 147, 159-60 (1924) (em phasis added). See also The Ship James and William, 37 Ct. Cl. 303, 306 (1902) (decree o f French Government abrogating provisions o f treaty o f 1778 relating to contraband goods on neutral vessels justified French courts in condem ning such vessels if seized by French cruisers, but did not abrogate any treaty right o f the U nited States); Ropes v. Clinch, 20 F. Cas. 1171, 1174 (C.C.S.D.N.Y. 1871) (No. 12,041) (Congress m ay “ legislate as if no such treaty existed, in modification or alteration o f what, by force o f the treaty, has been the law heretofore, thus modifying the law o f the land, without denying the existence o f the treaty, or the obligations thereof betw een the two governments, as a contract, and answ er therefor to such foreign government, or meet its reclam ation o r retaliation as may b e necessary.” ); I Westel W oodbury W illoughby, The Constitutional Law o f the United States § 3 2 4 , at 585 (“ T h e termination o f a treaty as an international compact carries with it the annulm ent o f the agreem ent as a law o f th e land, but its annulment as a law by Congress does not cany with it its annulment as an international compact.” ). 11 This C onvention details in arts. 40 and 41 more specific rules for the amendment (as among all the parties) and modification (as among certain o f the parties) o f a multilateral treaty. 12 See also David A. Koplow, When Is An Amendment Not An Amendment? Modification O f Arms Control Agree­ ments Without The Senate, 59 U. Chi. L. Rev. 981, 1023 (1992) ( “ International law imposes few limitations upon parties’ abilities to change th eir treaty obligations. In general, states are free to alter their commitments to any

394 Validity o f Congressional-Executive Agreements that Substantially M odify the United States' Obligations Under An Existing Treaty

The United States has often modified its treaty rights and obligations through agreements with its treaty partners: “ following a precedent established in 1784 when the Treaty of Commerce and Amity with France was modified by an ex­ change of notes between the French Foreign Minister and Benjamin Franklin, ex­ ecutive agreements have not infrequently been utilized as a method of altering treaties.” 13 Thus, assuming that the consent of our treaty partners was obtained, the United States could, as a matter of international law, substantially modify its pre-existing treaty obligations by agreement with its treaty partners. The only remaining question, therefore, is whether, as a matter of constitutional law, the President has the power to modify, by means of an executive agreement authorized by Act of Congress, the international legal obligations that the United States has under a treaty, or whether the only constitutional method by which the President may achieve that end is through the advice and consent of the Senate. We discuss that question in the following section.

IV.

“ When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The Supreme Court has repeatedly emphasized the sweeping authority of the President in the field of foreign affairs, particularly when his own considerable inherent powers in that area are augmented by those of Congress. See, e.g., Dam es & M oore v. Regan, 453 U.S. 654, 674 (1981); Chicago & Southern A ir Lines, Inc. v. W ater­ man S.S. Corp., 333 U.S. 103, 109-10 (1948); H irabayashi v. United States, 320 U.S. 81, 92-93 (1943); United States v. Curtiss-W right Export Corp., 299 U.S. 304 (1936). We believe that the inherent powers of the President over foreign affairs, coupled with whatever powers Congress can and does delegate to him in this area, are constitutionally sufficient to enable the President to make an exec­ utive agreement that substantially modifies the international legal obligations of the United States under a prior treaty.14 extent, at any time, and in any manner, provided that they are reasonably clear about what they are doing and that they reciprocally agree or at least acquiesce in the outcom e."). 13 Myres S. McDougal & A sher Lans, Treaties and Congressional-Executive or Presidential Agreements: Inter­ changeable Instruments o f National Policy, 5 4 Yale L.J. 181, 334 (1945) (footnote omitted). 14 We do not consider here how far the President has the authority, acting without either Senate advice and consent or an Act of Congress, substantially to modify the United States’ obligations under treaty or international law. We note, however, that the executive branch has taken the position that the President possesses the authority to terminate a treaty in accordance with its terms by his unilateral action, and a plurality o f the Supreme Court concluded that the issue was a non-justiciable political question. See Goldwater v. Carter, 444 U.S. at 1003 (plurality op.). See generally Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney G eneral, Office of Continued

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The Constitution makes the President the Nation’s “ guiding organ in the con­ duct of our foreign affairs . . . . He . . . was entrusted with . . . vast powers in relation to the outside world . . . Ludecke v. Watkins, 335 U.S. 160, 173 (1948).15 Pursuant to his inherent powers, the President has made executive agree­ ments with other countries, not submitted to the Senate for its advice and consent or to Congress for its approval, including agreements that regulated the use of military forces.16 Congress to o — as distinct from the Senate under its treaty-mak- ing power— has some power to vary the international legal obligations of the United States.17 So, for example, in W einberger v. Rossi, 456 U.S. at 32, the Legal Counsel, Re: Presidential Authority to Modify the Conditions under which the United States Will Recognize the Compulsory Jurisdiction o f the International Court o f Justice Without Prior Congressional Approval at 1 (Apr. 9, 1984) ( “ although the question has never been definitively resolved by the courts, a substantial body of judicial, historical, and scholarly support exists for th e proposition that, under certain circumstances, the President is constitu­ tionally em pow ered unilaterally to terminate an existing treaty in accordance with its term s"). But see International Load Line Convention, 40 Op. A tt’y Gen. 119, 123 (1941) (opining that President had power to suspend a treaty, but suggesting that “ action by the Senate o r by the C ongress" would be “ required" to “ denounce" or “ otherwise abrogate! ] ’’ it). A ssum ing that the President does have th e power unilaterally to terminate a treaty, it appears to follow that he also has the authority to relieve the United States o f the affirmative obligations imposed on it by particular treaty provisions. It would not follow, however, th at he had the authority unilaterally to augment the United States’ treaty obligations. Moreover, it has been held that th e President has no constitutional power to abrogate rights under Indian treaties. See Mille Lacs Band o f Chippewa Indians v. State o f Minnesota, 861 F. Supp. 784, 823-24 (D. Minn. 1994), appeal dismissed, 48 F.3d 373 (8th C ir. 1995). 13 The President’s authority in the field o f foreign affairs flows, in large part, from the President’s position as C hief Executive, U.S. Const, art. II, §1, cl. 1, and as Com m ander in Chief, id. art. II, §2 , cl. 1. It also derives from his more specific powers to “ make T rea tie s" with the advice and consent of two-thirds o f the Senators present, id. art. H, § 2 , cl. 2; to “ appoint Ambassadors . . . and C onsuls," id:, and to “ receive Ambassadors and other public M inisters," id. art. H, § 3 . The Supreme Court has repeatedly recognized the President’s authority with respect to the conduct o f foreign affairs. See, e.g.. Department o f Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recognized ‘the generally accepted view that foreign policy was the province and responsibility of the E xecutive’ ’’) (quoting Haig v. Agee, 453 U .S . 280, 2 9 3 -9 4 (1981)); Alfred Dunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 70 5 -0 6 n.18 (1976) ( “ [T]he conduct o f [foreign policy] is committed primarily to the Execu­ tive Branch . . . ." ); United States v. Louisiana, 363 U.S. 1, 35 (I960) (the President is “ the constitutional represent­ ative o f the United States in its dealings with foreign nations"). 16The President’s “ inherent pow ers" as Com m ander in C hief are “ clearly extensive." Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and in the judgment). The executive agreements that past Presidents have concluded under the Com m ander in C hief authority have often been “ important com pacts," such as the armistice, or peace protocol, with Spain, o f A ugust 12, 1898, establishing the basis o f the conditions for ending the Spanish-American W ar. 2 Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States §508, at 1411 (2d rev. ed. 1945). See also 5 John Bassett Moore, A Digest o f International Law 213(1906). 17 That proposition might be questioned. See, e.g., 1 W estel W oodbury Willoughby, The Constitutional Law o f the United Stales §324, at 585 ( “ it seems almost too clear for argument that Congress, not having been made by the C onstitution a participant in the treaty-making pow er, has no constitutional authority to exercise that pow er either affirmatively or negatively, that is, by creating or destroying international agreem ents"). W e believe that Congress does possess delegable authority in this area. First, among the powers vested in Congress by the Constitution is the pow er o f declaring w ar. U.S. Const, art. 1, §8, cl. 11. A declaration of war is a legislative act that can have the effect o f abrogating a treaty in whole o r in part. See Karnuth v. United States, 279 U.S. 231, 239-41 (1929) (Declaration o f War o f 1812 abrogated provision o f Treaty of 1794 granting British subjects right freely to enter United States); see also Valk v. United States, 29 Ct. Cl. 62, 67 (1894), ( “ war supersedes treaties o f peace and friendship"), affd, 168 U.S. 703 (1897); cf. Argento v. Horn, 241 F.2d 258, 260-62 (6th C ir.) (Potter Stewart, J.) (extradition treaty w ith Italy was suspended but not abrogated by war), cert, denied, 355 U.S. 818 (1957). W hen Congress acts under its war power, “ a wide latitude o f discretion must be accorded" to it, for on that pow er “ the very life of the nation depends." Hamilton v. Kentucky Distillers & Warehouse Co., 251 U.S. 146, 163 (1919) (Brandeis, J.); see also Dryfoos v. Edwards, 284 F. 596, 599 (S.D.N.Y. 1919) (L. Hand, J.) (C ongress’ w ar pow er may “ be inferred [not only from specific clauses of article I, but also] from the fact that the United States is the only sovereign recognized among the world o f nations, within the territory of the

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Supreme Court implied that Congress, if it expressed its intent with sufficient clarity, could effect the abrogation of the United States’ international obligations, as set forth in international agreements for the hiring of local nationals at the United States’ overseas military bases.18 It can reasonably be maintained that, if Congress may effect the abrogation of international obligations, it has some power to authorize the President to modify them.

The practice of the two branches discloses many examples of binding agree­ ments that Presidents have made with foreign States, relying on the inherent au­ thority of the Executive, as affirmed and amplified by Congress. As the Senate Foreign Relations Committee study cited above points out,

Congressional authorization for the conclusion of international agreements dates from the earliest days of the Nation’s constitu­ tional history. Thus, in 1790 Congress empowered the President to pay off the Revolutionary War debt by borrowing money from foreign countries “ upon terms advantageous to the United States” and to conclude “ such other contracts respecting the said debt as shall be found for the interest of the said States.” Two years later

United States, at once responsible and vested with any o f the powers which are customarily exercised by such a sovereign so charged” ), a ffd sub nom., Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919). Accordingly, it is at least arguable that Congress’ war power enables it to enact legislation, other than a formal declaration o f war, that authorizes the President to vary the United States* obligations under disarmament or other political-military treaties. Accord Armen R. Vaitian, Approval o f SALT Agreements by Joint Resolution o f Congress, 21 Harv. J. Int’l L. 421, 441 (1980) (“ it is clear that the power o f Congress to legislate with regard to arm s control matters is nearly unlimited, and, when combined with the President's authority as Commander in Chief, is plenary” ) (footnotes omitted). Furthermore, Congress has been held to have the power to make peace by legislation, as an alternative to a treaty. See Ludecke v. Watkins, 335 U.S. at 168. Indeed, because o f the Senate’s refusal to ratify the Treaty of Versailles, Congress by joint resolution authorized the President to terminate the war with Germany, see 42 Stat. 105 (1921). The validity o f Congress’ action was recognized by both the Supreme Court, see Commercial Trust Co. v. Miller, 262 U.S. 51, 57 (1923), and by the Executive, see Proclamation o f Peace by the President, Aug. 25, 1921, 42 Stat. 1939, 1944. Again, it may be inferred that if Congress may make peace, it may authorize Executive agreements, such as arms control measures, that conduce to peace. Finally, the Constitution vests in Congress the power to “ provide for the common Defence . . . of the United States.” U.S. Const, art. I, § 8 , cl. 1. The Supreme Court has indicated that this clause enables Congress to authorize the President to make agreements with foreign States that were directly related to the N ation’s defense. In People o f the State o f New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), the Court reviewed a large body of legislation dealing with the Panama Canal. These statutes included the Act o f June 28, 1902, ch. 1302, 32 Stat. 481, which authorized the President to enter into an agreement to acquire control o f a strip o f land— the Panam a Canal Z one— from the Republic o f Colombia. To enact this mass o f legislation, the Court said, lay “ within the constitutional power of Congress to provide for the national defense.” 299 U.S. at 406. Arguably, therefore, the “ common Defence” clause also confers on Congress delegable power to authorize the President to enter into executive agree- ments that modify our obligations under prior arms control treaties. 19 See also Van Der Weyde v. Ocean Transp. Co., 297 U.S. 114, 118 (1936) (Act of Congress requesting and directing President to give notice to treaty partners o f termination o f treaties inconsistent with domestic legislation made it “ incumbent upon the P resid en t. . . to reach a conclusion as to the inconsistency” between treaty provisions and domestic statute, and “ [h]aving determined that [treaty provisions'] termination was necessary, the Preside through the Secretary o f State took appropriate steps to effect it.” ).

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the Postmaster General was authorized to make arrangements with the postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post-offices. . . . Over the years, Congress has authorized or sanctioned additional agreements concerning a wide variety of subjects including inter alia, the protection of intellectual property rights, acquisition of ter­ ritory, national participation in various international organizations, foreign trade, foreign military assistance, foreign economic assist­ ance, atomic energy cooperation, and international fishery rights.

S. Rep. 53, at 52-53 (footnotes omitted). See also Seizure o f Foreign Ships on the High Seas Pursuant to Special Arrangements, 4B Op. O.L.C. 406, 407 (1980) (“ The President has Congress’ express authority to enter into special arrangements [with foreign countries], including those that will aid the United States’ effort to curtail drug traffic.” ); Validity o f Comm ercial Aviation Agreement, 40 Op. Att’y Gen. 451, 452 (1946) (Clark, A.G.) (“ It is recognized that there are many classes of agreements with foreign countries which are not required to be formulated as treaties . . . [including] that class of executive agreements which are entered into in accordance with, and within the scope of, authority vested in the executive branch by legislation enacted by the Congress. Notable examples of agreements which fall within this class are postal conventions and reciprocal trade agree­ ments.” ); P ostal Conventions with Foreign Countries, 19 Op. Att’y Gen. 513, 520 (1890) (Taft, S.G.) (beginning with legislation of 1792, the Postmaster Gen­ eral, by virtue of Congressional authorization, “ has exercised the treaty-making power of the Government in so far as it was necessary to the improvement of the foreign mail service,” without obtaining the advice and consent of the Senate to such postal conventions). Cf. Antoine v. Washington, 420 U.S. 194, 204 (1975) (Court has repeatedly treated Executive agreements with Indian tribes ratified by later Acts of Congress as “ law, and like treaties, the supreme law of the land” ).19 The constitutionality of such “ Congressional-Executive agreements” is firmly established. A cco rd S. Rep. 53, at 58.20 The Supreme Court long ago rejected arguments that such agreements constitute an invalid delegation of power to the President or the House of Representatives, or an improper invasion of the Senate’s treaty-making power. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 410-11 (1928); Field v. Clark, 143 U.S. 649, 694 (1892); see also Whether U ruguay Round Agreements R equired Ratification as a Treaty, 18 Op. O.L.C.

19 A m ong earlier international agreements w hich were accomplished by Congressional-Executive agreements rather than by Article II treaties were the annexation o f Texas, see Tejcas v. White, 74 U.S. (7 Wall.) 700 (1868) and o f Hawaii, see Hawaii v. Mankichi, 190 U.S. 197 (1903). For discussion of the background o f these two annexations, see Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, 12 Op. O.L.C. 238, 25 1 -5 2 (1988); Louis Fisher, Constitutional Conflicts between Congress and the President 227-28 (3d rev. ed. 1991). 20 But see Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitu­ tional Interpretation, 108 Harv. L. Rev. 1221, 1249-78 (1995) (defending exclusivity of Treaty Clause).

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232, 234 (1994).21 An international agreement negotiated by the President and concluded with prior, or subsequent, authorization from Congress has “ the force and effect of an act of Congress.” 2 Op. O.L.C. 227, 229 (1978).

C.

Of particular relevance here, the practice of the political branches underscores that the President has the authority to make Congressional-Executive agreements with our treaty partners that substantially modify the United States’ rights or obli­ gations under those treaties. Congress has enacted legislation in the political-military field that permits the modification of the United States’ international obligations through a Congres­ sional-Executive agreement as an alternative to the treaty-making process. The Arms Control and Disarmament Act of 1961, Pub. L. No. 87-297, §33, 75 Stat. 634, as recently amended by Pub. L. No. 103-236, §709, 108 Stat. 382, 494 (1994) (codified in relevant part at 22 U.S.C. § 2573(b)), provides that no action obligating the United States to reduce or limit its Armed Forces or armaments “ in a militarily significant manner” can be taken “ except pursuant to the treaty- making power of the President set forth in Article II, Section 2, Clause 2 of the Constitution o r unless authorized by the enactment o f further affirmative legisla­ tion by the Congress o f the United States’ ’ (emphasis added).22 Further, in a 1990 study, the Congressional Research Service identified three Congressional-Executive agreements since 1970 of a political-military nature; each of them could arguably have been adopted as a treaty instead. These were the Interim Agreement on the Limitation of Stategic Offensive Arms (“ Salt I ” ), signed May 26, 1972, entered into force October 3, 1972, T.I.A.S. No. 7504, 23 U.S.T. 3462, which President Nixon submitted to Congress for its approval by joint resolution, and which Congress authorized in Pub. L. No. 92-448, 86 Stat.

21 “ Notwithstanding that the text o f the Constitution confers no explicit authority for the making o f congressional- executive agreements, such agreements have been authorized frequently by Congress over the years on a wide variety o f subjects. Similarly, the courts have been little troubled by theoretical considerations and have sustained such agreements largely on the basis o f the actual practice o f the political branches o f the government and the cumulative weight o f prior judicial decisions. Presumably, if a doctrinal basis were at this date necessary to uphold agreements o f this type, the combined foreign affairs powers o f the Congress and the President would prove sufficient.” S. Rep. 53, at 58-59. 22 The legislative history o f section 33 o f the Arms Control and Disarmament Act indicates that neither the Senate nor the House o f Representatives regarded the provision as infringing on the Senate's treaty-making power. See Armen R. Vartian, Approval o f SALT Agreements by Joint Resolution o f Congress, 21 Harv. J. Int’l L. at 44 6 - 47 & n.95. The Senate had previously recognized that international political-military obligations could be undertaken by Act of Congress rather than by treaty when, in 1943, it adopted the Connally Resolution. That resolution provided that the United States, “ acting through its constitutional processes.” could join in an international authority w ith the power to prevent aggression. The resolution's reference to “ constitutional processes” was understood to mean "th a t international commitments (in this case joining the United Nations) could be made either by treaty or by a majority of each House voting on a bill o r joint resolution.” Louis Fisher, Presidential War Power 7 4 (1995); see also 89 Cong. Rec. 8662 (1943) (explanation o f terms used in resolution).

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746, signed September 30, 1972 23; a pair of identical agreements made by Presi­ dent Ford in 1975 with Egypt and Israel, under which the United States undertook to participate in an early-warning system in the Sinai, which Congress approved in Pub. L. No. 94-110, 89 Stat. 572, signed October 13, 1975, and which entered into force on the same date, T.I.A.S. No. 8155, 26 U.S.T. 2271 (Israel), T.I.A.S. No. 8156, 26 U.S.T. 2278 (Egypt); and a protocol signed by the United States, Egypt and Israel on August 3, 1981, T.I.A.S. No. 10556, 34 U.S.T. 3341, entered into force August 3, 1981, and T.I.A.S. No. 10557, 34 U.S.T. 3349, entered into force March 26, 1982, outlining United States participation in a Multinational Force and Observers unit, to function as a peacekeeping force in Sinai, for which President Reagan requested and obtained Congressional authorization in Pub. L. No. 97-132, 95 Stat. 1693, signed December 29, 1981. See Ellen C. Collier & James V. Satumo, Congressional Research Service, Executive Agreements Sub­ m itted to Congress: Legislative Procedures U sed Since 1970 (Nov. 26, 1990).24 Congress has also ratified, by legislation, Executive acts that substantially modi­ fied pre-existing treaty (or other international) obligations. Under article 3 of the Treaty of Peace with Japan, Sept. 8, 1951, T.I.A.S. No. 2490, 3 U.S.T. 3169, 3172-73, Japan was required to concur in any proposal that the United States made to the United Nations for placing certain islands under trusteeship. By a 1953 executive agreement, T.I.A.S. No. 2895, 4 U.S.T. 2912, President Eisen­ hower agreed to relinquish to Japan the United States’ rights under the Treaty of Peace with respect to the Amami Islands. Although it appears that no prior legislative authorization for this modification of the treaty existed, Congress in 1960 impliedly ratified the President’s action in Pub. L. No. 86-629, 74 Stat. 461, an Act, “ To provide for the promotion of economic and social development in the Ryukyu Islands.” 25 Finally, in its Resolution of Advice and Consent of 27 May 1988 to the U.S.- U.S.S.R. Treaty on the Elimination of Their Intermediate-Range and Shorter- Range Missiles (INF Treaty), the Senate adopted the “ Biden condition,” which 23 “ [T]he Interim Agreement o f 1972 was by no means the fust non-treaty agreement pertaining to arms limitation o r national security. In addition to numerous armistice agreements, the Rush-Bagot Agreement o f 1817, 8 Stat. 231, T.S. No. 110 1/2 (1846), the ‘Hot Line’ Agreement o f 1963, 1 U.S.T. 825, T.I.A.S. No. 5362, and unwritten agreem ents with the Soviet U nion concerning moratoriums on nuclear testing (1958-1961) and placing nuclear weap­ ons in orbit (1963-1967), am ong others, w ere effected without Senate approval.” Armen R. Vartian, Approval o f SALT Agreements by Joint Resolution of Congress, 21 Harv. J. In t’l L. at 442 n.77. 24 In light o f such judicial and historical precedents, the Genera] Counsel to the Clerk o f the House o f Representa­ tives concluded that “ the U nited States m ay appropriately choose to negotiate an arms accord in the form o f a Congressional-Executive agreem ent, and approve it by legislation, as an alternative to treaty ratification.” Memo­ randum for the Honorable D ante B. Fascell, Chairman, House Committee on Foreign A ffairs, from Steven R. Ross, General Counsel to the Clerk, and Charles T iefer, Deputy General Counsel to the Clerk, Re: Congressional Approval o f an Arms Control Agreement by Legislation Rather than Treaty Ratification (May 23, 1985), reprinted in 134 Cong. Rec. 7323 (1988). See also Memorandum for Ambassador Kampelman, Counselor, from Michael J. Matheson, D eputy Legal A dviser, Re: Form o f submission o f arms control agreements (Apr. 14, 1988), reprinted in 134 Cong. Rec. at 7324 ( “ N either the [Arm s Control an d Disarmament Act] nor the Constitution dictates which o f these two options the President should exercise with respect to a particular [arms control] agreement,” but noting that “ [w]ith one exception, the significant arm s control agreements o f the past few decades have all been submitted for the advice and consent o f the Senate as treaties.” ). 23 See 14 Marjorie M. W hiteman, Digest o f International Law § 23, at 230 (1970).

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provides that “ the United States shall interpret the Treaty in accordance with the common understanding of the Treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification,” and that “ the United States shall not agree to or adopt an interpretation different from that com­ mon understanding except pursuant to Senate advice and consent to a subsequent treaty or protocol, o r the enactment o f a statute .” 134 Cong. Rec. 12,849 (1988) (emphasis added). The Senate affirmed “ the applicability to all treaties of the constitutionally-based principles” in this condition. Resolution of Advice and Consent of 25 November 1991 to the Treaty on Conventional Armed Forces in Europe (CFE Treaty), 137 Cong. Rec. 34,347, 34,348 (1991), adopted id. at 34,546. Because the Senate took the view that such “ common understandings” of a treaty had the same binding effect as express provisions of the treaty for purposes of U.S. law, the Biden condition logically supports the proposition that the President may be authorized to accept changes in treaty obligations either by further Senate advice and consent o r by statutory enactment. In light of these judicial and historical precedents, we conclude that Congress may authorize the President, through an executive agreement, substantially to modify the United States’ international obligations under an arms control (or other political-military) treaty.

Conclusion

It lies within the power of Congress to authorize the President substantially to modify the United States’ domestic and international legal obligations under a prior treaty, including an arms control treaty.

CHRISTOPHER SCHROEDER Acting Assistant A ttorney General Office o f Legal Counsel