Revisiting Goldwarter v. Carter: The Executive’s Right to Rescind Treaties in Light of President Bush’s 2002 Termination of the ABM Treaty

Abstract

This paper examines the constitutional power of the President to terminate treaty obligations. It centers on President Bush’s recent renunciation of the 1972 Anti-Ballistic Missile Treaty with the Soviet Union. It focuses on the balance of power between the legislative and executive branches in light of the Goldwater v. Carter and Kucinich v. Bush decisions. The paper is divided into six sections: (1) the international legal ramifications of unilateral executive treaty rescission; (2) the role of standing; (3) the impact of the political question doctrine; (4) arguments for and against permitting the President to terminate treaties; (5) a discussion of the process that should be used to terminate treaties, as between the President and Congress; and, finally, (6) an examination of alternative strategies that Congress may employ when the President chooses to rescind a treaty. The paper concludes that the decision to terminate a treaty should not be one-sided, and that joint action from both branches should be required whenever the United States wishes to relieve itself of treaty obligations.