Can a President Unilaterally Exit Treaties? The Constitutional Answer Is Murky.

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But a fundamental constitutional question remained unresolved: Does the President have the legal power to terminate treaties without congressional approval?

The Constitution is strikingly clear about one thing: making treaties requires approval from the Senate, with two-thirds of senators voting yes. But on the question of who may unmake those treaties—and how—the constitutional text falls silent.

The Constitutional Silence at the Heart of the Dispute

The Constitution’s treaty clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” This language established an explicit role for the Senate as a co-equal partner in treaty-making—a deliberate check on executive power rooted in the Framers’ concern about concentrated authority in foreign affairs.

The Constitution contains not a single word about treaty termination.

Scholars examining the Constitutional Convention records and the Federalist Papers find virtually no discussion of how treaties should be unmade. The result is that American constitutional law lacks what legal scholars call the principle that whatever process creates an agreement should also govern its dissolution.

Instead, presidents and legal scholars have constructed arguments from constitutional structure, foreign affairs powers, historical practice, and Supreme Court precedent.

The silence has spawned three competing constitutional theories. The first, embraced by many modern presidents and their legal advisers, holds that the President possesses inherent constitutional authority to terminate treaties as part of his sole power to handle foreign relations. Under this view, the President’s role as the only official voice representing America internationally—language drawn from a 1936 Supreme Court case that established broad presidential foreign affairs powers—means he can unilaterally exercise treaty termination rights without consulting Congress.

The second theory argues that treaty termination should require the same Senate supermajority approval needed for ratification, based on the principle that the process for unmaking an agreement should mirror the process for making it.

A third, middle-ground theory suggests that the answer depends on specific circumstances: the type of agreement in question, the subject matter involved, whether Congress has passed laws to make the treaty work in America, and whether the treaty itself contains specific termination provisions.

During the nineteenth century, termination was largely a power shared between branches, with Congress frequently authorizing or directing the President to terminate treaties. But beginning in 1899, when President McKinley terminated certain articles of a commercial treaty with Switzerland, unilateral presidential termination gradually became the norm. By the time of Franklin Roosevelt and World War II, presidents routinely terminated treaties without congressional involvement, citing diplomatic and national security imperatives. The practice accelerated during the Cold War, and by the late twentieth century, unilateral presidential termination had become routine.

Goldwater v. Carter: The Case That Avoided the Question

The one moment when the Supreme Court had an opportunity to resolve this constitutional dispute came in 1979 in the case of Goldwater v. Carter.

The case arrived at the Supreme Court with fundamental constitutional questions squarely presented: Does the President alone have authority to terminate treaties, or does the Senate retain a role in termination comparable to its role in ratification?

The Supreme Court, by a 6-3 vote, ordered the case dismissed on technical grounds about whether courts should hear the case. The plurality opinion, written by Justice Rehnquist (joined by Chief Justice Burger and Justices Stewart and Stevens), found the dispute presented questions courts believe elected officials should decide.

Justice Lewis Powell, in a key concurrence, argued the case was not ready for courts to decide because Congress hadn’t officially taken a position—only a few individual senators had challenged it. Powell suggested that if the full Senate or House had formally voted to oppose termination, creating a clear constitutional impasse between branches, the Court would have a duty to resolve the question.

Justice William Brennan, in dissent, argued that the Court had a responsibility to interpret the Constitution on this matter and that nothing in the constitutional text suggested an exclusive presidential power.

The practical effect of Goldwater was to leave the constitutional question unresolved. The Court’s avoidance gave presidents permission by default, since the Court had not ruled against unilateral termination on the merits, subsequent presidents could claim that executive practice constituted authority.

The Restatement of Foreign Relations Law, compiled by leading scholars and adopted by the American Law Institute as an authoritative synthesis, now states that presidents possess unilateral authority to terminate treaties, grounding this conclusion primarily in “historical practice.” But this conclusion rests on post-Goldwater practice, not on judicial decision or clear constitutional text.

Contemporary Scholarly Debate

Two decades into the twenty-first century, the constitutional dispute over treaty termination has become more contested among legal scholars.

The conventional wisdom that presidents possess clear constitutional authority to withdraw unilaterally has been explicitly challenged by leading experts in constitutional law and foreign affairs. This mirror principle—that the process for unmaking an agreement should mirror the process for making it—has gained increasing scholarly support, particularly among experts focused on separation of powers. The argument is that when Congress has passed laws to make a treaty work in America, the President lacks authority to unilaterally terminate the domestic legal effect without going through the full legislative process to repeal the statute.

Other prominent constitutional law scholars defend the traditional practice of unilateral presidential termination.

The scholarly debate often centers on how to apply Justice Robert Jackson’s framework from a 1952 Supreme Court case. Jackson articulated three categories of presidential power: first, when the President acts with explicit congressional authorization, his power is at its highest; second, when Congress is silent, the President operates in an area where both branches share power; and third, when the President acts contrary to the expressed or implied will of Congress, his power is weakest and “must be carefully reviewed.”

Legal scholars disagree about which category treaty termination falls into. If treaty termination is the President’s exclusive constitutional power, it would fall outside the Youngstown framework and be beyond Congress’s reach. But if it is a power shared between branches or requires Senate involvement, then a clear congressional directive against termination might constrain the President.

The January 7, 2026 Action and Constitutional Questions

The Trump administration’s January 7, 2026 memo differs legally from prior withdrawal actions in several significant respects that bear on constitutional analysis.

The memo claims authority from an earlier executive order issued on February 4, 2025, which directed the Secretary of State to conduct a review of all agreements to determine which were “contrary to the interests of the United States.” The memo then instructs executive agencies to “take immediate steps to effectuate the withdrawal” from 66 specified entities “as soon as possible.”

The legal complexity lies in the different types of agreements involved. Some, like the UN Framework Convention on Climate Change, are formal treaties that received Senate ratification (the UNFCCC was ratified by the Senate in 1992 by a 92-0 vote). Others, like the Paris Agreement, are agreements the President made without Senate approval. Still others—such as various UN agencies—represent membership participation or funding commitments rather than formal treaties with withdrawal provisions specified in law.

This diversity matters for constitutional analysis, because the strongest argument for unilateral presidential termination applies to executive agreements the President negotiated without congressional involvement, while the strongest argument for requiring congressional approval applies to Senate-ratified treaties with implementing legislation.

The UNFCCC presents a particularly complex case because it is a Senate-ratified treaty with specific statutory implementation. While the UNFCCC itself contains a withdrawal clause allowing parties to exit with one year’s written notice, the treaty was ratified by the Senate through formal Senate approval, which some legal scholars argue places conditions on how that treaty can be unwound.

Under one theory—articulated by Michigan Law Professor Saikrishna Prakash and others—when the Senate ratifies a treaty, it does so “by and with the Advice and Consent of the Senate,” and that advice and consent implicitly extends to how the treaty can later be terminated. This would mean the President cannot unilaterally terminate the UNFCCC but instead must seek Senate consent to do so, or at least notify the Senate before proceeding.

The State Department’s implementation of the memo also raises questions about whether agencies are respecting legal constraints embedded in statutes related to these entities. Some of the entities named in the memo are the subjects of specific federal legislation appropriating funds or mandating American participation. When Congress has passed legislation specifically requiring American participation in a particular body, can the President withdraw by executive order, or must he seek congressional approval first?

The government’s top lawyers in the Trump administration would argue that the President possesses exclusive foreign affairs authority that overrides such statutory constraints. But this position has not been tested in court and remains constitutionally contestable.

Congressional Tools to Constrain Treaty Termination

Congress possesses several constitutional and statutory tools to constrain presidential treaty termination authority, though the effectiveness and constitutionality of these tools remain unclear.

The most direct approach is legislation explicitly requiring congressional approval before withdrawal. In 2024, Congress took precisely this step regarding NATO. Senators Tim Kaine (D-Va.) and Marco Rubio (R-Fla.) championed bipartisan legislation that would prohibit the President from withdrawing from NATO without approval from two-thirds of the Senate or separate legislation passed by Congress. This provision was included in the National Defense Authorization Act and passed both chambers of Congress, signaling that at least some lawmakers believe Congress has constitutional authority to legislate binding requirements for treaty termination.

However, it remains unclear whether such legislation is constitutionally enforceable against a President who believes it encroaches on his exclusive foreign affairs powers. The Trump administration’s top lawyers have previously taken the position that congressional attempts to impose waiting periods on treaty withdrawal—such as a statute requiring 90 days’ notice to Congress before withdrawal—unconstitutionally interfere with the President’s exclusive diplomatic authority. Under this interpretation, even legislation passed by Congress would not legally bind the President if he determined that national interests required immediate action. This position is not universally accepted among constitutional scholars and has not been upheld by courts.

Congress can also use the appropriations power. By conditioning funding for implementation of a withdrawal on specific Congressional approval, or by refusing to appropriate funds for agencies to implement withdrawals from particular treaties, Congress can constrain the President’s ability to effectuate withdrawals. However, such indirect approaches are weaker than explicit legislation, because the President might argue that the Constitution requires him to take all necessary steps to effectuate policy, even without specific appropriations.

A third approach involves congressional investigation and formal action. Should Congress pass a formal statement expressing opposition to withdrawal from a particular treaty, this would create the “constitutional impasse” that Justice Powell’s Goldwater concurrence suggested would justify Supreme Court intervention. Such a statement would not legally stop the withdrawal, but it could set the stage for litigation challenging the withdrawal, with the hope that courts would find the constitutional dispute ready for adjudication once both branches had formally asserted conflicting powers.

In response to the January 7, 2026 memo, Congressional action has been muted. Some Democratic senators and representatives issued statements opposing specific withdrawals, particularly the climate agreement exits. But at this writing, no formal legislation or statement passed by both chambers of Congress has been passed expressing Congress’s collective opposition to the withdrawal action, meaning the constitutional impasse Powell described has not clearly materialized.

How Other Democracies Handle Treaty Termination

The American constitutional ambiguity over treaty termination is not universal among democracies. Examining how other constitutional democracies structure this authority illuminates what is at stake in the American debate.

The United Kingdom provides instructive contrast. For decades, British constitutional practice treated treaty withdrawal as an exclusive prerogative of the Crown—the executive. But in 2016, the UK Supreme Court in a case about Brexit addressed whether the Prime Minister could trigger Article 50 (the withdrawal clause of the Treaty on European Union) without an act of Parliament. The UK Supreme Court held that Parliament must pass legislation authorizing withdrawal, because the treaties in question had been made part of British law through legislation, and the executive could not unilaterally repeal an act of Parliament.

Canada’s approach is similar: while the executive negotiates and ratifies treaties, Parliament’s role in implementing legislation means that Parliament must effectively consent to treaty withdrawal when domestic law is implicated.

Germany’s Basic Law provides another model. It explicitly requires approval from the lower house of Germany’s parliament for treaty termination in most cases, mirroring the requirement for treaty ratification. Many other constitutions—including those of South Africa, Mexico, and other democracies—similarly require legislative participation in treaty termination, particularly for formal treaties affecting domestic law.

These comparative examples reveal that the American model—leaving treaty termination authority ambiguous—is unusual among democracies. Most constitutional systems have resolved the question explicitly, with the majority requiring legislative involvement in treaty termination comparable to legislative involvement in treaty ratification.

Litigation Pathways and Standing

Should the Trump administration’s withdrawal action be challenged in federal court, the litigation will face significant legal obstacles preventing courts from hearing the case before reaching the merits.

The central hurdle is the rule that courts won’t decide certain political disputes, which would bar courts from intervening in what the judiciary considers a matter for the political branches. Goldwater v. Carter itself was dismissed on this ground, and the doctrine remains a formidable barrier to judicial resolution of separation of powers questions in foreign affairs.

Justice Powell’s concurrence suggested that once both branches have formally asserted conflicting constitutional positions—the executive attempting withdrawal and Congress formally opposing it through legislation—courts would have a duty to intervene. Should Congress pass legislation prohibiting withdrawal from a particular treaty, or explicitly affirming that Senate ratification required continued treaty membership absent Senate approval to withdraw, that would create the constitutional impasse Powell described, at which point the legal obstacles might diminish.

The standing question is also significant. Individuals challenging the withdrawal face a traditional obstacle: lack of specific, concrete harm to the person suing. This is why Senator Goldwater sued—members of Congress can claim injury to their constitutional prerogatives when the executive allegedly violates their treaty-making role. But when only a handful of members sue, as happened in Goldwater, the Court might find the case not ready for courts to decide because Congress hasn’t officially taken a position.

However, if either chamber of Congress passed legislation directing a suit against the executive, or if Congress collectively authorized a lawsuit challenging the withdrawal, the standing calculus changes. A 2015 Supreme Court case suggested that institutions asserting harm to Congress’s constitutional powers when both chambers formally object possess the legal right to sue to challenge executive power claims.

Environmental groups and foreign policy advocates have also begun assessing potential litigation. NGOs committed to cooperation could potentially argue injury based on reputational, organizational, or mission-based harm from the U.S. withdrawal from global institutions. States could potentially sue if withdrawal from agreements affects state-regulated industries or creates problems between federal and state government authority. But these avenues to standing remain contested and uncertain. The strongest litigation posture would involve clear congressional action asserting its constitutional role.

Broader Implications for Executive Power

The treaty termination question touches on fundamental issues of how presidential power is constrained.

Should the President possess unilateral authority to terminate any treaty without congressional involvement, regardless of Senate ratification or implementing legislation, this would represent one of the broadest exercises of exclusive executive power over law. It would mean the President can, through a single decision, override agreements the Senate approved as part of the Constitution, without constitutional requirement for any form of congressional participation.

Conversely, were courts to rule that treaty termination requires the same Senate approval process as treaty ratification, or that termination of treaties with implementing legislation requires congressional repeal of those statutes, the implications would be nearly as dramatic. The President’s foreign affairs power would be substantially constrained, and presidents would lose significant flexibility in responding to changed circumstances.

The January 7, 2026 memo action may ultimately force the Supreme Court to abandon the rule that courts won’t decide certain political disputes and address the merits, particularly if Congress formally responds by passing legislation affirming its constitutional role in treaty termination. The stakes involve American commitment to global institutions, climate agreements, human rights frameworks, and security arrangements, making litigation likely.

Unresolved Constitutional Question

The constitutional answer to whether a President can unilaterally exit treaties remains unclear after nearly two centuries of American constitutional practice, a Supreme Court case that declined to answer it, and decades of scholarly debate.

President Trump’s January 7, 2026 memo directing withdrawal from 66 entities has brought this constitutional question from abstract scholarly dispute to immediate practical necessity. Executive agencies are implementing withdrawals. Affected groups are adjusting to American departure. Partners are reassessing American commitments.

The Trump administration would point to a long history of unilateral presidential treaty terminations and argue that historical practice constitutes authority. Constitutional scholars defending executive power would invoke the President’s role as the only official voice representing America and argue that Congress has allowed unilateral termination through inaction.

Critics would counter that historical practice does not establish constitutionality, that Congress not suing does not mean Congress agrees, and that core constitutional powers cannot be gained through repeated practice over time. They would point to the mirror principle, to the constitutional requirement that the President enforce laws, and to congressional implementing legislation as creating legal constraints on executive authority.

Should Congress pass legislation reasserting its constitutional role, creating the constitutional impasse Powell envisioned, courts might finally address the merits. Should major treaty withdrawals be implemented without congressional intervention, the historical practice argument for executive authority would grow stronger.

The constitutional answer to this fundamental question about American democracy’s separation of powers will shape American engagement with the world for years to come.

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