The Law: Termination of the ABM Treaty and the Political Question Doctrine: Judicial Succor for Presidential Power

President George W. Bush's unilateral termination of the 1972 ABM Treaty between the United States and Russia, (1) an act overshadowed by the trauma, chaos, and confusion that gripped the nation in the weeks and months following the September 11 outrage, renewed the long-standing and largely unresolved controversy over the constitutional repository of the authority to terminate treaties. President Bush's announcement on December 13, 2001 that he had given to Russia the requisite six-month notice of the United States' intention to withdraw from the ABM Treaty in accordance with the treaty (2) triggered a lawsuit, Kucinich v. Bush, in which 32 members of the House of Representatives challenged the constitutionality of Bush's action on grounds that the president may not terminate a treaty without congressional approval. The Federal District Court, however, refused to reach the merits of the case. It held that the congressional plaintiffs lacked standing and dismissed the case as a nonjusticiable political question. (3) The court's unwillingness to reach the merits in Kucinich reflects a troubling and increasing tendency among courts to elide the substantive issues involved in foreign affairs cases in which plaintiffs assert executive abuse of power and usurpation. (4) The result of this judicial abstention, typified by the invocation of the political question doctrine, is that presidential aggrandizement of foreign affairs powers remains uncurbed and unchecked. Worse, it lends, if not the imprimatur of law and authority, a certain unwholesome encouragement of the tendencies of the "Imperial Presidency" (Schlesinger 1973). Professor Louis Henkin has rightly stated: "By calling a claim a political question courts foster the perception that it is not a constitutional question and encourage the exercise of political power without regard to constitutional prescriptions and restraints" (Henkin 1990, 87). This article has three aims. First, it analyzes the application of the political question doctrine to the issue of treaty termination. It is argued here that the question of the constitutional repository of the authority to terminate treaties is, indeed, a justiciable issue. Second, it offers an account of the impact of judicial abstention on both the constitutional governance of American foreign policy and the enterprise of constitutionalism. Third, it argues that treaties should be terminated by the president and the Senate. Treaty Termination and the Political Question Doctrine The immediate backdrop against which to view Kucinich is, of course, Goldwater v. Carter (1979), in which the Supreme Court held that the issue of treaty termination constituted a nonjusticiable political question. (5) Goldwater arose out of President Jimmy Carter's unilateral termination of the 1954 Mutual Defense Treaty with Taiwan. (6) Senator Barry Goldwater and other members of the House and the Senate contended that President Carter was constitutionally required to obtain congressional consent before terminating a treaty. In his opinion for a plurality--not a majority--of the Court's members, Justice William Rehnquist wrote that the issue could not be resolved by the courts: [T]he basic question presented by the petitioners in this case is "political" and therefore nonjusticiable because it involves the authority of the president in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.... (7) Justice Lewis Powell concurred, but on grounds of ripeness, and Justice Thurgood Marshall also concurred in the Court's holding, but filed no opinion. (8) The Kucinich court thoroughly embraced Justice Rehnquist's political question analysis which, Judge Bates observed in his opinion for the court, was "instructive and compelling." (9) It is not at all clear why the question in both Goldwater and Kucinich--whether the president has the constitutional authority to terminate a treaty--should be viewed as nonjusticiable. …