Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.