President-Elect Donald Trump won the 2016 presidential campaign on an “America First” platform intended to bolster U.S. sovereignty and aimed squarely at reining in international institutions: the kind the U.S. participates in but which do not necessarily act in U.S. interests, such as the United Nations or the World Trade Organization.
On July 24, 2016, on NBC’s Meet the Press, Trump defended the right of the United States to impose tariffs on companies that leave the U.S. when host Chuck Todd suggested such a move might violate world trade rules..
Trump was emphatic that if the WTO did not serve U.S. interests, we could just leave: “Then we’re going to renegotiate or we’re going to pull out. These trade deals are a disaster, Chuck. World Trade Organization is a disaster.”
The same could certainly be said of the United Nations. Consider its attempts to constrain global economic growth via its wide-ranging environmental rules agreements, like the U.N. Framework Convention on Climate Change (UNFCC), the so-called Paris Accord, that went into effect Nov. 4, 2016, or its propaganda ministry at the Intergovernmental Panel on Climate Change (IPCC). These all aim to curb U.S. and other advanced economies’ carbon emissions — its effects on job creation, incomes, and growth be damned. All the while, developing economies like China get a free pass under provisions for special and differential treatment.
Then there is the antiquated U.N. Security Council, whose primary role nowadays appears to be more concerned with, for example, redrawing Israel’s already tiny borders, tearing down homes, and serving up concessions to terrorist groups like Hamas rather than opposing the daily aggression by those same groups against Israel, a key U.S. ally.
One might also look toward the failed International Atomic Energy Agency (IAEA), whose menial inspector regime has been circumvented repeatedly by aspiring nuclear powers like Iran, or North Korea, which has already succeeded in going nuclear.
The ill-conceived nuclear deal with Iran was adopted by the Security Council, even as Tehran remains on a collision course to obtaining nuclear weapons — thanks in no small part to the deal, which departed further from the Nuclear Non-Proliferation Treaty’s (NPT) norms and further weakened global nonproliferation efforts. Congress further mucked things up by authorizing the deal and U.S. involvement, including the lifting hundreds of billions of dollars of sanctions, a freebie for Tehran that the U.S. got nothing in return for — although multinational corporations are making billions off of it.
In many ways, it is easy to simply lay the blame for many of these failures at the feet of the Obama administration, which assented to the Security Council resolutions on Iran and Israel, but such outcomes were inevitable largely due to flaws at these institutions that by design — and out of naïve, post-war idealism — sought to put the U.S. on equal footing with all other nations. These did not take into consideration realpolitik, and like the WTO and other trade deals, furthermore have circumvented the constitutional process for adopting real treaties via the Senate.
Elections certainly do have consequences, but the Constitution was designed to temper those outcomes by making it difficult for presidents to engage in foreign agreements without very broad support in the Senate. By design, organizations like the WTO and the U.N. get around that, implementing binding rules whether on trade or nukes or sovereign borders that never see the light of day in the Senate. It was an abrogation of the Senate’s power — but also of the president’s power.
Now, come Jan. 20, Trump will have the opportunity to make good on his America First campaign commitments by renegotiating bad foreign deals. But could Trump just unilaterally withdraw from the U.N. or the WTO?
By design, the U.N. Charter, which was adopted by the Senate via the Treaty Clause in 1945, never included any provision for withdrawal. The WTO Agreement does provide for withdrawal under Article XV, so long as six months’ notice is given by the U.S. government.
Under Article II of the Constitution, although the Senate has the power to adopt a treaty signed by the president, nowhere does it stipulate how the U.S. can pull out of a treaty.
That power is said to inherently reside in Article II’s vesting of executive power in the president, and is certainly the view of executive power that was shared by the Carter administration when it withdrew from the Taiwan defense treaty in 1979, and the Bush administration when it withdrew from the Anti-Ballistic Missile Treaty (ABM) in 2002.
Neither of those agreements forbade a future president from acting to exit the treaty, nor would any treaty the U.S. might wisely ever enter into. In the cases of Taiwan and ABM, like the WTO Agreement, both explicitly provided language for termination, with simple notice by the president being enough to terminate the agreement.
Neither withdrawal from the Taiwan treaty nor the ABM required Senate ratification or any other congressional approval, even though there had been such a role in adoption of those agreements.
That is because, as then-Secretary of State Thomas Jefferson wrote in 1790, “the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department [that is, the president], except as to such portions of it as are specially submitted to the Senate.”
Therefore, as the Constitution did not define and limit the power to withdraw from a treaty and other international agreements, nor confine it to Congress or the courts or the states, it inherently resides with the president and the Constitution’s grant of executive power. The Senate’s only role is in adopting a treaty. The president’s role is in executing it, including the power to terminate it as necessary, either under the terms of the treaty itself or as a matter of his constitutional executive power. It is a political question with which the president has discretion.
There are other foreign affairs powers reserved to Congress, such as the power to declare war. And although Congress did have a role in adopting the WTO Agreement, and there are periodic mandatory congressional reviews, it also granted the possibility of leaving by the mere adoption of the Article XV language providing for such a withdrawal.
As for the U.N.: Although its charter does not provide for member withdrawal, neither does it prohibit it. The U.S. never surrendered the power to leave the U.N., and so it could leave, in accordance with its own constitutional procedures for terminating treaties, which happens to be included in the president’s Article II executive power.
So, escape clause or no, the question of withdrawing from any treaty or international agreement, even the ones that created the U.N. and the WTO, falls to the text of the agreement, and on who has the power under the Constitution to execute and therefore terminate treaties and other international agreements — and that is the [resident. And on Jan. 20, that will be Donald Trump, who will have considerable leverage to obtain concessions at these institutions to better serve U.S. interests — or, as he suggested in July, just pull out.
Robert Romano is the senior editor of Americans for Limited Government.
