Executive Power

The Senate vs. The President: A Moot Court on the President’s Treaty Withdrawal Powers

By Scott R. Anderson
Friday, March 29, 2019, 1:02 PM

Yesterday, Mar. 28, I had the pleasure of moderating an incredibly interesting panel discussion at the Annual Meeting of the American Society of International Law (ASIL). The focus of the discussion was S.J. Res. 4, a real law introduced this past January by a bipartisan coalition of Senators, led by Sen. Tim Kaine (D-Va.). Modeled on a proposal I outlined in Lawfare last summer, S.J. Res. 4 expressly prohibits the president from withdrawing from the North Atlantic Treaty that undergirds the NATO alliance without either the Senate’s advice and consent or the permission of Congress. Perhaps more importantly, it also attempts to tee up a credible legal challenge by Congress in the event that the president pursued such action without satisfying S.J. Res. 4’s requirements.

Our panel was structured as a moot court and addressed a hypothetical scenario in which President Trump attempts to unilaterally withdraw from NATO even after S.J. Res. 4 is enacted into law. We assumed that S.J. Res. 4 successfully overcame the political question doctrine, ripeness, and standing concerns that have stymied prior legal challenges to treaty withdrawals, as it is designed to do. As a result, the debate focused on the constitutional question of whether treaty withdrawal is an exclusive authority that the Constitution vests solely in the president or a shared authority that Congress can, at a minimum, limit through legislation.

Arguing the case for Congress was Chris Fonzone, who is now a partner at Sidley Austin and served as the legal advisor to the National Security Council during the Obama administration. Representing the United States was Ginger Anders, a partner at Munger Tolles & Olson and former Assistant to the Solicitor General. Our panel of judges included Prof. Curtis Bradley of Duke University Law School (who has written for Lawfare on this issue previously), Prof. Catherine Powell of Fordham University School of Law (former National Security Council Director for Human Rights), and Don Verrilli, the former Solicitor General for the United States who is also now a partner at Munger Tolles & Olson.

All told, it proved to be one of the most in-depth and detailed discussions of this difficult constitutional question that I’ve encountered. A video of the panel is below; thank you to ASIL for letting us cross-post it here: