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Implementation of Standstill Agreement Pending 

Approval of ABM Treaty and ICBM Interim Agreement

The Standstill Agreement, made by the President with the Soviet Union pending congressional 

approval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the 

Arms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.

The President is not precluded by contract law or authorization and appropriations legislation passed by 

Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the 

arms control agreements pending their coming into force.

June 12, 1972

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

This is in response to your oral request for our views concerning certain legal 

aspects of the Standstill Agreement made with the Soviet Union pending approval 

by the Congress and the Senate respectively of the Interim Agreement with the

USSR on Certain Measures with Respect to the Limitation of Strategic Offensive 

Arms (“Interim Agreement”) and the Treaty with the USSR on the Limitation of 

Anti-Ballistic Missile Systems (“ABM Treaty”).

Although we have not seen the text of the Standstill Agreement, we understand 

that it is embodied in three documents which have been summarized in the 

proposed transmittal papers to Congress as follows:

Both signatories understand that, pending ratification and acceptance, neither will take any action that would be prohibited by the 

ABM Treaty and the Interim Agreement, in the absence of notification by either signatory of its intention not to proceed with ratification or acceptance.

The ABM Treaty is an agreement not to deploy Anti-Ballistic Missile Systems 

except for the two described in Article III of the Treaty. The Interim Agreement 

provides that the United States and the USSR undertake not to start construction of 

additional fixed land-based intercontinental ballistic missile launchers after July 1, 

1972; not to convert land-based launchers for light ICBMs into launchers for

heavy types; and to limit the number of missile launching submarines.

I.

The first question presented is whether the Standstill Agreement would violate 

the proviso to section 33 of the Arms Control and Disarmament Act. Pub. L. 

No. 87-297, § 33, 75 Stat. 631, 634 (1961), codified at 22 U.S.C. § 2573 (1970).

That proviso states:
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That no action shall be taken under this or any other law that will 

obligate the United States to disarm or to reduce or to limit the 

Armed Forces or armaments of the United States, except pursuant to 

the treaty making power of the President under the Constitution or 

unless authorized by further affirmative legislation by the Congress 

of the United States.

We believe it reasonable to conclude that the Standstill Agreement does not violate 

this proviso. A technical argument to the contrary could be made since it might be 

said to be an obligation to limit the arms of the United States not implemented by 

treaty or statute.

As indicated in our memorandum to you of June 7, 1972, the proviso to section 33 was intended to prevent the President from acting on his own in making 

arms limitation agreements. See, e.g., 107 Cong. Rec. 20,308–09 (1961). Here the 

President is acting closely with the Congress and asking for its approval. On his 

return after signing the ABM Treaty and the Interim Agreement, he stated to 

Congress: “[W]e can undertake agreements as important as these only on a basis of 

full partnership between the executive and legislative branches of our Government.” Transcript of President Nixon’s Address to Congress on Meetings in 

Moscow, N.Y. Times, June 2, 1972, at 12.

All that the Standstill Agreement seeks to do is to ensure that both the United 

States and the USSR refrain from acts which would defeat the object and purpose 

of the Treaty and the Interim Agreement, thus allowing them to be successfully 

implemented. In doing so the parties are following a generally recognized 

principle of international law—international agreements should be negotiated in

good faith and nothing should be done to undermine them pending their final 

conclusion. This principle is codified in Article 18 of the Vienna Convention on 

the Law of Treaties (which the United States has signed but has not yet ratified) as 

follows:

A State is obligated to refrain from acts which would defeat the object and purpose of a treaty when:

(a) It has signed the treaty . . . ; or

(b) It has expressed its consent to be bound by the treaty, pending 

the entry into force of the treaty and provided that such entry into 

force is not unduly delayed.

Vienna Convention on the Law of Treaties art. 18, opened for signature May 23, 

1969, 1155 U.N.T.S. 331, 336 (entered into force Jan. 27, 1980).

This custom reflects certain eminently practical considerations. It would be 

difficult to conclude a successful treaty or interim agreement in the arms control 

area without an understanding as to what the relationship of the parties should be 
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pending ratification or acceptance as the case may be; as a result, such understandings, as here, are often reduced to writing. See George Bunn, Missile Limitation:

By Treaty or Otherwise?, 70 Colum. L. Rev. 1, 16 (1970).

It should be noted that the proviso does not state that all arms limitation agreements must be made by treaty or statute. The phrase used in section 33 is “pursuant to the treaty making power of the President under the Constitution” (emphasis 

added). Although treaties can be made only by and with the advice and consent of 

the Senate, it is the President alone who negotiates. The Treaty Clause therefore

confers on him certain independent powers. See Congressional Oversight of 

Executive Agreements: Hearing Before the Subcomm. on Separation of Powers of 

the S. Comm. on the Judiciary, 92d Cong. at 248–69 (May 18, 1972) (statement of 

John R. Stevenson, Legal Adviser, Department of State). Under the treaty making 

power of the President, certain “time-honored diplomatic devices [such] as the 

‘protocol’ which marks a stage in the negotiation of a treaty, and the modus 

vivendi, which is designed to serve as a temporary substitute for one,” are recognized. The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 88-39, at 485 (Edward S. Corwin et al. eds., 1964); see United 

States v. Belmont, 301 U.S. 324, 330 (1937). It is the President’s duty in negotiating international agreements to preserve the effectiveness of the treaty making 

power and to take care that our international obligations are met by arrangements 

which are designed to preserve the integrity of more lasting arrangements. Cf. 

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

The Standstill Agreement is such a stage in negotiations seeking to preserve the 

status quo and to meet our international obligations pending eventual congressional approval. The Supreme Court has said on a number of occasions that “‘an act 

of Congress ought never to be construed to violate the law of nations if any other 

possible construction remains.’” McCulloch v. Sociedad Nacional de Marineros de 

Honduras, 372 U.S. 10, 21 (1963) (quoting The Charming Betsy, 6 U.S. (2 Cranch) 

64, 118 (1804)). We conclude that the proviso to section 33 should not be read to 

preclude such an arrangement.

II.

The second question put to us is whether, apart from the matter discussed 

above, the President is legally precluded from directing the appropriate Executive 

Branch agencies to abide by the provisions of the ABM Treaty and the Interim 

Agreement pending their coming into force.

Specifically, this question involves the President’s authority to direct executive 

agencies to take initial steps to terminate current contracts for construction and 

procurement in projects covered by the ABM Treaty and the Interim Agreement.

We perceive two potential legal objections to this proposal. First, private contractors may object to termination of their construction or procurement contracts 

with the government for these projects as a matter of contract law. However, since 
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349

we understand that all defense contracts are supposed to have termination-forconvenience clauses, the government can simply terminate these contracts as 

provided in the contracts. Even if this clause were omitted from a contract, the 

government could still terminate and pay appropriate damages for breach of 

contract. Thus, there is no insurmountable contractual hurdle in issuing a presidential suspension directive.

A second question involves the constitutional power of the President to terminate projects provided for by authorization and appropriations legislation passed 

by the Congress. This question in turn raises two subsidiary issues: (1) whether 

this legislation grants discretion to the President in spending funds or is mandatory

in nature; and (2) if mandatory, whether the President possesses constitutional 

authority to disregard the legislative mandate.

Since the President is under a constitutional obligation to “take Care that the 

Laws be faithfully executed” (U.S. Const. art. II, § 3), the authorization and 

appropriations legislation for each of the various projects scheduled for termination must be considered. Although we have not been informed of the specific 

legislation applicable to the projects involved (except for the ABM installation 

discussed below), the laws probably will be found to be permissive in nature if 

they follow the pattern of most spending legislation, particularly defense appropriations in recent years. As a general rule, appropriations acts “are of a fiscal and 

permissive nature and do not in themselves impose upon the executive branch an 

affirmative duty to expend the funds.” Federal-Aid Highway Act of 1956—Power 

of President to Impound Funds, 42 Op. Att’y Gen. 347, 350 (1967) (Clark, A.G.)

(citing cases); see also McKay v. Cent. Elec. Power Coop., 223 F.2d 623, 625 

(D.C. Cir. 1955).

One of the projects being considered for immediate termination is presumably 

the Safeguard ABM installation at Malmstrom Air Force Base at Great Falls, 

Montana. Secretary Laird recently directed the officials involved to suspend 

construction at this site. In connection with this directive we have examined the 

most recent authorization and appropriations legislation governing the Safeguard

site.1 Neither the language of the acts nor the legislative history indicate that 

Congress intended the spending to be mandatory.

Even if some of the projects in question are, as a matter of statutory construction, interpreted as mandatory in nature, there may be constitutional authority for 

the President’s refusal to expend additional funds. This Office has previously 

advised that the President has authority to impound funds if their expenditure 

would conflict with his powers and responsibilities as Commander in Chief and his 

primary role in international relations. Whether Congress can force the President 

to spend appropriated funds in these cases is not likely to be tested directly in any 

 

1 Military Procurement Authorization Act, 1972, Pub. L. No. 92-156, 85 Stat. 423; Department of 

Defense Appropriation Act, 1972, Pub. L. No. 92-204, 85 Stat. 716.
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350

event. Because this matter involves delicate questions concerning the separation of 

powers between the two political branches of government, the Supreme Court has 

not, nor is likely to, pass on this question. We believe, however, that the weight of 

historical precedent indicates that the President possesses the power to impound 

funds touching on the national defense and foreign relations.

Precedents for presidential impoundment in this area are numerous. In 1949, for 

example, Congress voted to increase the Air Force from 48 to 58 groups. President 

Truman signed the bill but directed the impoundment of the extra $614 million 

appropriated. President Truman also cancelled the construction of an aircraft 

carrier designed to carry nuclear bombers by exercising his power as Commander 

in Chief to direct that strategic nuclear bombing be exclusively an Air Force

mission. And in 1956 the Defense Department declined to implement a congressional appropriation earmarked for the construction of 20 superfort bombers.2

In this light, the suspension of further work on projects covered by the agreements through the impounding of appropriated funds appears within the President’s constitutional powers, even if Congress did intend that a specific appropriation should be mandatory.

RALPH E. ERICKSON

Assistant Attorney General

Office of Legal Counsel

 

2 These examples and others are discussed in the following articles: Frank Church, Impoundment of 

Appropriated Funds: The Decline of Congressional Control over Executive Discretion, 22 Stan. L. 

Rev. 1240, 1242–44 & nn. 21–22 (1970); Harry Kranz, A 20th Century Emancipation Proclamation: 

Presidential Power Permits Withholding of Federal Funds from Segregated Institutions, 11 Am. U. L. 

Rev. 48, 65 n.122 (1962); Arthur Selwyn Miller, Presidential Power to Impound Appropriated Funds: 

An Exercise in Constitutional Decision-Making, 43 N.C.L. Rev. 502, 513 (1965).