On Nov. 22, 2020, the United States announced its withdrawal from the Open Skies Treaty. This decision was made unilaterally by the Trump administration and carried out in a way that conflicted with a congressional mandate. Prior to its announced withdrawal, the United States had been a party to the Open Skies Treaty since it entered into force in 2002 as a multilateral treaty designed to enhance military transparency between former Cold War antagonists.
The Biden administration must decide whether to seek reentry into the Open Skies Treaty—and, if so, how to accomplish this. At the international level, this decision is complicated by Russia’s recent statement that it will withdraw from the treaty. The prospects for U.S. reentry will presumably rest largely on whether this Russian decision is a fixed reality or a negotiating gambit.
And then there is the domestic law question. What domestic pathways are available by which the United States can rejoin the treaty?
This post will discuss one of these potential pathways: the prospect that the Biden administration could rejoin the Open Skies Treaty through reliance on the original advice and consent to this treaty that the Senate gave by a two-thirds majority in 1993.
The Case for Rejoining the Open Skies Treaty in Reliance on the Original Senate Resolution of Advice and Consent
Well before the announced U.S. withdrawal from the Open Skies Treaty, I argued in the Virginia Law Review that the president has the authority to rejoin treaties through the Senate’s original advice and consent. I took the position that presidential authority to rejoin exists as a matter of domestic law if neither the Senate’s resolution of advice and consent nor subsequent action by the Senate or Congress prohibits rejoining. If two-thirds of the Senate has supported U.S. entry into a treaty, that support should be deemed as ongoing unless or until the Senate changes its mind or Congress has overridden the Senate’s position.
Such a presidential power to rejoin treaties would be an important counterweight to another acquired presidential power—the power to withdraw the United States from treaties without the approval of either the Senate or Congress (in situations where the treaty or international law establishes that the treaty parties have a right of withdrawal). The existence of this withdrawal power is disputed in theory but exercised in practice.
Prior to President Trump, this withdrawal power was used as a scalpel rather than a hatchet. As in so many other arenas, however, the Trump administration displayed little care in its use of this withdrawal power and there were rumors that still more uses were contemplated, including with respect to the North Atlantic Treaty.
If presidents can unilaterally withdraw the United States from treaties but not unilaterally rejoin them, then a single president can effectively invalidate the Senate’s laboriously acquired, supermajoritarian resolution of advice and consent. As a structural matter, recognizing a presidential power to withdraw without also recognizing a presidential power to rejoin is troubling, unless the Senate itself has instructed otherwise. And, as a practical matter, recognizing a presidential power to withdraw without also recognizing a presidential power to rejoin will give future presidents still more reasons to prefer other domestic pathways for joining international commitments in the first place.
To my knowledge, there are no precedents of rejoining treaties. Before President Trump, unilateral presidential withdrawals from treaties were relatively rare and typically well founded, and there was little need to consider the issue of rejoining. Nonetheless, several related strands of historical practice support the conclusion that presidents have the authority to rejoin treaties in reliance on the original Senate resolutions of advice and consent. First, practice firmly establishes that Senate resolutions of advice and consent for treaties outlast the congressional term in which they are made, as the United States has joined many treaties years after the passage of these resolutions. Second, there are many examples in practice where the United States has entered and exited treaty relations with other countries without intervening action by the Senate—these are situations in which the United States is a party to a multilateral treaty that another nation exits and then rejoins. Third, in the context of international agreements that the United States has joined as congressional-executive agreements following congressional authorization, there is prior precedent for presidential rejoining following presidential withdrawal. This has been the case for the international agreements behind the International Labor Organization and UNESCO, both of which the United States has left and then rejoined without intervening congressional action. (The United States is still a member of the International Labor Organization, and the Trump administration withdrew the United States from UNESCO in 2017.)
Applying this reasoning to the Open Skies Treaty, President Biden has the authority to rejoin the United States to the treaty in reliance on the Senate’s original resolution of advice and consent. Neither Congress nor the Senate has overridden this resolution. What President Trump has unmade unilaterally, President Biden should similarly have the power to remake.
Writing on Lawfare recently, Stephen Rademaker criticized both my article and a blog post by Oona Hathaway that draws on my article. Rademaker argued that Biden cannot rejoin the Open Skies Treaty through reliance on the Senate’s original resolution of advice and consent and that the only feasible—albeit not particularly feasible—way to rejoin the treaty is through another round of advice and consent. Let me respond to some of his comments here.
First, Rademaker argues that a presidential power to rejoin treaties can “only be understood to expand the power of the president vis-à-vis the Senate.” But the presidential power to rejoin treaties operates in order to carry out the expressed will of two-thirds of the Senate that has never been revoked. It plays a crucial role in hedging another presidential power—the withdrawal power—in ways that Rademaker does not analyze. To put it differently, consider two possible scenarios. The first is the world as presented in his piece: a world in which a President Trump has the power to unilaterally withdraw the United States from every single Senate-approved treaty for which international law authorizes withdrawal (which is almost all of them), but future presidents cannot restore these treaty relations without returning to the Senate for supermajority advice and consent (or possibly to Congress for joint resolutions). The second is the world as I view it, which is that if a President Trump has the power to unilaterally withdraw the United States from all of these treaties, then a future president should presumptively have the power to rejoin the United States to them. If you ask which approach embodies greater presidential power, the answer to me is clearly the former.
Second, Rademaker’s argument offers a series of hypotheticals that he considers illustrate why presidents should not be able to rejoin treaties without returning to the Senate. He focuses on three defense pacts: the U.S.-Taiwan Mutual Defense Treaty, the Southeast Asia Collective Defense Treaty and the Baghdad Pact. Two of these examples feel very hypothetical indeed, as they do not involve treaties from which the United States has withdrawn. The Southeast Asia Collective Defense Treaty remains in force for the United States (and indeed Congress reiterated U.S. commitment to it in a 2018 statute), although the treaty has lost most of its relevance and the international organization that it established has been dissolved. The Baghdad Pact is a treaty to which the United States was never a party—and while it did join a declaration respecting that pact and making certain related commitments, it did so without Senate advice and consent. As for the U.S.-Taiwan Mutual Defense Treaty, the chances of the U.S. rejoining it are highly unlikely in practice, but it is theoretically possible under my theory, provided it is permissible as a matter of international law, there is no intervening congressional legislation that is deemed to override the original advice and consent, and the Senate does not act to rescind its advice and consent. Even so, a presidential rejoining power here is modest in comparison with other presidential powers claimed by the executive branch that could theoretically be brought to bear on U.S.-Taiwan-China relations, including both the power to recognize Taiwan as China and the power to use force in this region without congressional authorization in the national interests of the United States. Once again, the theoretical risks of a president rejoining past treaties from which an earlier president has unilaterally withdrawn the United States (a relatively small number, with most coming after the Taiwan treaty) strike me as far, far less than the theoretical risks of presidential withdrawal from all existing treaties (for which international law permits withdrawal) without an accompanying rejoining power.
Third, Rademaker raises a concern about the Appointments Clause—could the president reappoint executive officers who had received confirmation in a long-past administration without needing another round of advice and consent? It is pretty easy to distinguish advice and consent in the treaty context from advice and consent in the appointments context. The history and practice building out the Treaty Clause and the Appointments Clause have long diverged in various ways, as I mention in my recent article. Moreover, as a textual matter, the Treaty Clause gives the president the “power, by and with the advice and consent of the Senate, to make treaties.” The Senate needs to advise and consent only to the president’s power with respect to making treaties, and the Constitution does not spell out what the “mak[ing]” process entails. The Appointments Clause, by contrast, instructs that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” officers, and it makes sense to read this as requiring that a fresh nomination requires a fresh round of advice and consent.
Fourth, Rademaker’s post does not grapple with related historical practice, including the past practice regarding the rejoining of UNESCO and the International Labor Organization. He mentions this practice in describing my arguments but neither disclaims it nor reconciles his arguments with it. It is important to do one or the other. If one accepts that presidents can rejoin ex post congressional-executive agreements in reliance on the original congressional authorizations but not similarly rejoin treaties, then presidents will have still more reason to avoid making international commitments via the Treaty Clause process going forward.
I hope President Biden will consider using his power to rejoin the Open Skies Treaty. And, if he does so, I hope that his administration will be transparent about its reasoning. There are other potential pathways for returning to the Open Skies Treaty in addition to the one I have suggested. As a matter of good governance, I think it will be important for the Biden administration to make public its legal basis (or bases) for rejoining. As recent scholarship notes, the executive branch could do better across the board to be clear about what powers it is relying on when it joins the United States to international commitments.
Members of Congress have already expressed concern about the Trump administration’s conclusion that it could withdraw the United States from the Open Skies Treaty without complying with the notice requirements of a congressional statute. Both this topic and the legal pathways to rejoining are ones where dialogue between the executive branch and Congress would be valuable.