b'(Slip Opinion)\n\nCongressionally Mandated Notice Period for\nWithdrawing from the Open Skies Treaty\nIn establishing a mandatory waiting period for withdrawing from a treaty, section 1234(a)\nof the National Defense Authorization Act for Fiscal Year 2020 unconstitutionally\ninterferes with the President\xe2\x80\x99s exclusive authority to execute treaties and to conduct\ndiplomacy.\nSeptember 22, 2020\n\nMEMORANDUM OPINION FOR THE LEGAL ADVISOR\nTO THE NATIONAL SECURITY COUNCIL\nThe United States is a party to the Open Skies Treaty, which allows\nstate parties to conduct unarmed surveillance flights over the territory of\nthe other parties. Treaty on Open Skies, Mar. 24, 1992, reprinted in\nS. Treaty Doc. No. 102-37 (Aug. 12, 1992) (\xe2\x80\x9cOST\xe2\x80\x9d); 2 Pub. Papers of\nPres. William J. Clinton app. A, at 2213 (Nov. 3, 1993). Article XV of the\nTreaty gives each party the right to withdraw after providing notice, at\nleast six months in advance, to a Treaty depositary and to the other state\nparties. In section 1234(a) of the National Defense Authorization Act for\nFiscal Year 2020 (\xe2\x80\x9cFY 2020 NDAA\xe2\x80\x9d), Congress sought to require the\nExecutive Branch to notify four congressional committees, at least 120\ndays in advance of sending the notice, that withdrawal is in the best\ninterests of the United States national security and that the other state\nparties to the Treaty have been consulted about the United States\xe2\x80\x99 planned\nwithdrawal. Pub. L. No. 116-92, \xc2\xa7 1234(a), 133 Stat. 1198, 1648 (2019).\nOn May 22, 2020, the Secretary of State and the Secretary of Defense\njointly provided notice to congressional leadership of the President\xe2\x80\x99s\ndecision that the United States would withdraw from the Treaty. See\nLetter for Nancy Pelosi, Speaker of the House, U.S. House of Representatives, from Michael R. Pompeo, Secretary of State, and Mark T. Esper,\nSecretary of Defense (May 22, 2020) (\xe2\x80\x9cNotification Letter\xe2\x80\x9d); see also\nMichael R. Pompeo, U.S. Dep\xe2\x80\x99t of State, Press Release, Press Statement\non the Treaty on Open Skies (May 21, 2020), https://www.state.gov/onthe-treaty-on-open-skies/. Consistent with section 1234(a), the Secretaries\nconfirmed that withdrawal was in the best interests of the United States\nnational security and that the Department of State had consulted extensively with other state parties. But they further explained that the Presi1\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\ndent had directed that the notice of withdrawal be sent immediately,\nwithout waiting for the 120 days called for by section 1234(a). Notification Letter at 2.\nBefore the President gave that direction, you asked whether section\n1234(a)\xe2\x80\x99s mandatory congressional-notice period is constitutional. We\nadvised that the notice period unconstitutionally interferes with the President\xe2\x80\x99s exclusive authority to execute treaties and to conduct diplomacy, a\nnecessary incident of which is the authority to execute a treaty\xe2\x80\x99s termination right. Congress may not intrude upon the President\xe2\x80\x99s authority to\nspeak as the voice of the United States in executing a treaty by imposing\nthe notice-and-wait provision called for under section 1234(a). This\nmemorandum memorializes the basis for that conclusion.\nI.\nPresident George H.W. Bush signed the Open Skies Treaty on behalf of\nthe United States in Helsinki, Finland, on March 24, 1992, along with\nrepresentatives of the Russian Federation and other nations. See Message\nto the Senate Transmitting the Treaty on Open Skies (Aug. 12, 1992),\n2 Pub. Papers of Pres. George Bush 1345, 1345\xe2\x80\x9346 (1992) (\xe2\x80\x9cOST Message\xe2\x80\x9d). The Treaty allows each state party to conduct a limited number of\nunarmed observation flights over the territory of other parties. See OST\narts. I\xe2\x80\x93IX. Data obtained from these flights may then be shared among the\nparties. See id. art. IX, \xc2\xa7 IV; see also id. art. X, \xc2\xb6 5 (allowing the Open\nSkies Consultative Commission to develop \xe2\x80\x9carrangements for the sharing\nand availability of data\xe2\x80\x9d). The Treaty was intended, among other things,\nto \xe2\x80\x9cimprove openness and transparency,\xe2\x80\x9d \xe2\x80\x9cto enhanc[e] security,\xe2\x80\x9d \xe2\x80\x9cto\nfacilitate the monitoring of compliance with existing or future arms control agreements,\xe2\x80\x9d and \xe2\x80\x9cto strengthen the capacity for conflict prevention\nand crisis management.\xe2\x80\x9d Id. pmbl.\nThe idea for the Open Skies Treaty originated in the early years of the\nCold War, but it did not enter into force until a good deal later. President\nEisenhower first proposed the idea for a regime of mutual unarmed reconnaissance flights in 1955, as a confidence-building measure between the\nsuperpowers. But it was not until 1989, as the Cold War entered its last\nyears, that President George H.W. Bush began negotiating a multilateral\nagreement for such a regime. See Treaty on Open Skies, S. Exec. Rep. No.\n2\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\n103-5, at 2 (1993). President Bush signed the agreement in 1992 and\nsubmitted it to the Senate for advice and consent. OST Message at 1345.\nIn considering whether to recommend that the Senate provide its advice and consent to ratification, the Senate Committee on Foreign Relations observed that the Treaty \xe2\x80\x9cwill be of marginal direct benefit to the\nUnited States\xe2\x80\x9d and that there was a \xe2\x80\x9cgeneral consensus within the United\nStates Government that the treaty will not provide any significant information gains to this nation.\xe2\x80\x9d S. Exec. Rep. No. 103-5, at 16. The Treaty\xe2\x80\x99s original impetus had been \xe2\x80\x9covertaken\xe2\x80\x9d in part by the advent of\nsatellite technology, which offered better data-acquisition capabilities.\nSee id. at 2\xe2\x80\x933. In addition, the Senate Armed Services Committee expressed concern about \xe2\x80\x9cthe cost-effective use of Department of Defense\nresources under the Treaty\xe2\x80\x9d and viewed the \xe2\x80\x9coverall cost-benefit to the\nU.S.\xe2\x80\x9d as \xe2\x80\x9cquestionable.\xe2\x80\x9d Id. at 142\xe2\x80\x9343, 15. Nonetheless, the Committee\non Foreign Relations concluded that the Treaty was \xe2\x80\x9cnot likely to jeopardize United States national security,\xe2\x80\x9d id. at 16, and the Senate consented to the Treaty subject to two conditions (neither of which bears on\nwithdrawal). See 139 Cong. Rec. 19,913 (1993). On November 2, 1993,\nPresident Clinton signed the instrument of ratification. 1 The Treaty did\nnot finally enter into force, however, until January 1, 2002, see Treaty\nAffairs Staff, Office of the Legal Adviser, U.S. Dep\xe2\x80\x99t of State, Treaties\nin Force: A List of Treaties and Other International Agreements of the\nUnited States in Force on January 1, 2020 \xc2\xa7 2, at 2, after the requisite\nnumber of nations had acceded to it, see OST art. XVII, \xc2\xb6 2. At present,\n34 states, including the United States, are parties to the Treaty.\nThe Open Skies Treaty is of unlimited duration. Id. art XV, \xc2\xb6 1. But it\nprovides that a state party \xe2\x80\x9cshall have the right to withdraw from this\nTreaty,\xe2\x80\x9d and that a party intending to withdraw \xe2\x80\x9cshall provide notice of its\ndecision to withdraw to either Depositary at least six months in advance\nof the date of its intended withdrawal and to all other States Parties.\xe2\x80\x9d Id.\nart. XV, \xc2\xb6 2. Should a state party provide such notice, the Treaty directs\nthe two depositary governments (Canada and Hungary, see id. art. XVII)\n\n1\n\nDepartments of Commerce, Justice, and State, the Judiciary, and Related Agencies\nAppropriations for 1995: Hearings Before the Subcomm. on the Dep\xe2\x80\x99ts of Commerce,\nJust. & State, the Judiciary & Related Agencies of the H. Comm. on Appropriations, 103d\nCong. 207 (1994).\n\n3\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nto convene a conference of the state parties \xe2\x80\x9cto consider the effect of the\nwithdrawal on this Treaty.\xe2\x80\x9d Id. art. XV, \xc2\xb6 3.\nIn recent years, United States military officials expressed concerns that\nthe Treaty\xe2\x80\x99s implementation had undermined the national security of the\nUnited States. Some observed that Russia received a much greater advantage than the United States from the overflight rights. 2 Others complained that Russia had regularly breached its obligations under the Treaty\nand thereby undermined its benefits. 3 For these and other reasons, United\nStates officials discussed the possibility of withdrawing. 4\n\n2\n\nSee, e.g., Hearing to Consider the Nomination of General Joseph F. Dunford, Jr.,\nUSMC, for Reappointment to the Grade of General and Reappointment to Be Chairman\nof the Joint Chiefs of Staff Before the S. Comm. on Armed Servs., 115th Cong. 49\n(2017) (\xe2\x80\x9cDunford Hearing\xe2\x80\x9d) (statement of Gen. Dunford) (calling \xe2\x80\x9ccompelling\xe2\x80\x9d the\nargument that \xe2\x80\x9cRussia gets more benefit from [OST] flights than does the United\nStates\xe2\x80\x9d); Worldwide Threats: Hearing Before the H. Comm. on Armed Servs., 114th\nCong. 13 (2015) (statement of Lt. Gen. Vincent R. Stewart, Dir., Def. Intelligence\nAgency) (\xe2\x80\x9cThe Open Skies construct was designed for a different era. I am very concerned about how it\xe2\x80\x99s applied today.\xe2\x80\x9d); Russian Arms Control Cheating: Violation of\nthe INF Treaty and the Administration\xe2\x80\x99s Responses One Year Later: Joint Hearing\nBefore the Subcomm. on Strategic Forces of the H. Comm. on Armed Servs. & the\nSubcomm. on Terrorism, Nonproliferation & Trade of the H. Comm. on Foreign Affairs,\nH.A.S.C. No. 114-70, 114th Cong. 15 (2015) (\xe2\x80\x9cRussian Arms Control Hearing\xe2\x80\x9d) (according to the head of U.S. Strategic Command, the \xe2\x80\x9ctreaty has become a critical component of Russia\xe2\x80\x99s intelligence collection capability directed at the United States,\xe2\x80\x9d and\nRussian overflights create \xe2\x80\x9cvulnerabilities\xe2\x80\x9d for the United States); see also Senator Tom\nCotton, The Open Skies Treaty Is Giving Russia Spying Capabilities. End It., Wash. Post\n(Dec. 10, 2019), https://www.washingtonpost.com/opinions/2019/12/10/open-skiestreaty-is-giving-russia-spying-capabilities-end-it/ (\xe2\x80\x9c[T]he Open Skies Treaty no longer\nserves to reduce tensions or build trust, if it ever did. Instead it gives Russia a spying\ncapability it wouldn\xe2\x80\x99t otherwise possess, which jeopardizes U.S. security.\xe2\x80\x9d).\nSee, e.g., U.S. Dep\xe2\x80\x99t of State, Adherence to and Compliance with Arms Control,\nNonproliferation, and Disarmament Agreements and Commitments 30 (Apr. 2016)\n(\xe2\x80\x9cRussia continues not to meet its treaty obligations [under the OST.]\xe2\x80\x9d); U.S Dep\xe2\x80\x99t of\nState, Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments 26\xe2\x80\x9327 (Aug. 2012) (observing that, on multiple\noccasions, \xe2\x80\x9cthe United States, Romania, Canada,\xe2\x80\x9d and other nations have raised concerns\nabout Russia\xe2\x80\x99s noncompliance with the Treaty).\n4 See, e.g., Dunford Hearing at 48\xe2\x80\x9349 (statement of Gen. Dunford) (\xe2\x80\x9cwe don\xe2\x80\x99t believe\nthe treaty should be in place if the Russians aren\xe2\x80\x99t complying\xe2\x80\x9d); Review of the Fiscal Year\n2017 State Department Budget Request: Hearing Before the S. Comm. on Foreign Rela3\n\n4\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nAt the same time, some Members of Congress expressed concern that\nthe United States\xe2\x80\x99 withdrawal from the Treaty would undermine national security or disrupt relations with the United States\xe2\x80\x99 allies. See, e.g.,\n165 Cong. Rec. S5915 (daily ed. Oct. 21, 2019) (statement of Sen.\nMenendez) (\xe2\x80\x9cWithdrawing from the Open Skies Treaty would be perceived as casting . . . further doubt on the status of the U.S. commitment to Ukraine\xe2\x80\x99s security and would advance the Russian narrative that\nthe United States is an unreliable partner in the region.\xe2\x80\x9d); Letter for Robert C. O\xe2\x80\x99Brien, National Security Adviser, White House, from Eliot L.\nEngel, Chairman, Committee on Foreign Relations, U.S. House of Representatives at 1 (Oct. 7, 2019) (\xe2\x80\x9cTh[e] treaty has provided important military transparency for its 34 signatory countries\xe2\x80\x9d and \xe2\x80\x9c[w]ithdrawal risks\ndividing the transatlantic alliance and would further undermine America\xe2\x80\x99s\nreliability as a stable and predictable partner when it comes to European\nsecurity[.]\xe2\x80\x9d); Senator Deb Fischer, Press Release, Fischer, Fortenberry,\nBacon Applaud Open Skies Funding in FY2019 Defense Funding Bill\n(Sept. 14, 2018) (\xe2\x80\x9cThe Open Skies Treaty . . . contributes significantly to\ngreater transparency and stability across many key regions of the globe,\nwhich benefits both the United States and our allies and partners.\xe2\x80\x9d).\nAgainst this backdrop, the House Armed Services Committee in 2019\nproposed including a provision in the FY 2020 defense authorization bill\nthat would have restricted the President\xe2\x80\x99s discretion to withdraw from the\nTreaty.5 In response, the Department of Justice objected that such a meastions, 114th Cong. 148 (2016) (statement of Sen. Barrasso) (asking whether \xe2\x80\x9cthis treaty\nhas outlived its original intention and the United States should withdraw\xe2\x80\x9d); Russian Arms\nControl Hearing at 16\xe2\x80\x9317 (statement of Rep. Bridenstine) (raising the possibility that\n\xe2\x80\x9cmaybe we don\xe2\x80\x99t need [the OST] anymore\xe2\x80\x9d); see also Cotton, supra note 2 (\xe2\x80\x9cWithdrawing from Open Skies . . . would allow us to restrict Russian spy flights over the most\nsensitive U.S. military installations without damaging our ability to monitor theirs \xe2\x80\x9d and\nwould free up funding that could be \xe2\x80\x9cbetter spent on tools that increase the combat\neffectiveness and survivability of U.S. troops.\xe2\x80\x9d).\n5 The House bill would have generally barred the obligation of any of \xe2\x80\x9cthe funds authorized to be appropriated by this Act or otherwise made available to the Department of\nDefense for fiscal year 2020\xe2\x80\x9d to support \xe2\x80\x9cany action to suspend, terminate, or withdraw\nthe United States from the Open Skies Treaty.\xe2\x80\x9d H.R. 2500, 116th Cong. \xc2\xa7 1231(c)(1)\n(2019). The bill would have made an exception if the Secretary of State and the Secretary\nof Defense jointly certified to Congress either that \xe2\x80\x9cRussia is in material breach of its\nobligations under the Open Skies Treaty and is not taking steps to return to compliance\nwith such obligations, and all other state parties to the Open Skies Treaty concur in such\n\n5\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nure would unconstitutionally intrude on the President\xe2\x80\x99s exclusive power to\nwithdraw from a treaty. See Letter for Adam Smith, Chairman, Committee\non Armed Services, U.S. House of Representatives, from Prim F. Escalona, Principal Deputy Assistant Attorney General, Office of Legislative\nAffairs at 8\xe2\x80\x939 (Nov. 27, 2019), https://www.justice.gov/ola/page/file/\n1222061/download (second document).\nCongress nonetheless enacted a revised version of this restriction in\nsection 1234(a) of the NDAA, which provides:\nNot later than 120 days before the provision of notice of intent to\nwithdraw the United States from the Open Skies Treaty to either\ntreaty deposit[a]ry pursuant to Article XV of the Treaty, the Secretary of Defense and the Secretary of State shall jointly submit to the\ncongressional defense committees, the Committee on Foreign Affairs of the House of Representatives, and the Committee on Foreign\nRelations of the Senate a notification that\xe2\x80\x94(1) such withdrawal is in\nthe best interests of the United States national security; and (2) the\nother state parties to the Treaty have been consulted with respect to\nsuch withdrawal.\nFY 2020 NDAA \xc2\xa7 1234(a), 133 Stat. at 168. In signing the FY 2020\nNDAA into law, the President reiterated the Department\xe2\x80\x99s constitutional\nconcerns and advised that that he would apply section 1234(a) only to the\nextent \xe2\x80\x9csuch advance certification or notification is feasible and consistent\nwith [his] exclusive constitutional authorities\xe2\x80\x9d to conduct the Nation\xe2\x80\x99s\nforeign relations. Statement on Signing the National Defense Authorization Act for Fiscal Year 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 1\n(Dec. 20, 2019) (\xe2\x80\x9cNDAA Signing Statement\xe2\x80\x9d).\nIn May 2020, you asked for this Office\xe2\x80\x99s views on whether the United\nStates may submit a notice of withdrawal from the Open Skies Treaty\nwithout complying with the advance-notice requirement of section\n1234(a). We advised that this 120-day waiting period unconstitutionally\nrestricts the President\xe2\x80\x99s authority to execute the rights of the United States\n\ndetermination of the Secretaries\xe2\x80\x9d; or that \xe2\x80\x9cwithdrawing from the Open Skies Treaty would\nbe in the best interests of United States national security and the other state parties to the\nOpen Skies Treaty have been consulted with respect to such withdrawal.\xe2\x80\x9d Id.\n\xc2\xa7 1231(c)(2).\n\n6\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nunder treaties and to conduct diplomacy, and that the President could\ntherefore submit a notice of withdrawal immediately. Consistent with the\nPresident\xe2\x80\x99s signing statement, we advised that, as a matter of interbranch\ncomity, the President should comply with the terms of the waiting period\ninsofar as it would be feasible and consistent with the diplomatic objectives of the United States.\nOn May 22, 2020, the Secretary of State and the Secretary of Defense\nadvised Congress that the President had determined that it was no longer\nin the national security interest for the United States to remain a party to\nthe Open Skies Treaty. See Notification Letter at 1. The secretaries explained that, since at least 2011, Russia has regularly violated the Treaty\xe2\x80\x99s\nterms, thereby undermining the central confidence-building object of the\nTreaty. Id. For example, Russia has limited the flight distance that state\nparties may fly during missions over Kaliningrad; Russia prohibits Treaty\nflights within 10 kilometers of portions of the Russian\xe2\x80\x93Georgian border;\nand Russia in September 2019 denied overflight of a Russian military\nexercise\xe2\x80\x94all of which violated the Treaty. Id. Although the United States\nderives no intelligence benefit from the Treaty, Russia gains valuable\nintelligence from its overflights, which it can use to target critical civilian\ninfrastructure in the United States and Europe. Id. Finally, Russia attempts\nto advance its \xe2\x80\x9cexpansionist propaganda\xe2\x80\x9d through the Treaty by prohibiting flights near Georgia and by providing for an open-skies refueling\nairfield within Ukraine, in Russian-occupied Crimea. Id.\nThe secretaries confirmed that, consistent with section 1234(a), the Department of State had consulted extensively with other state parties to the\nTreaty about the prospect of United States withdrawal. Id. at 2. As the\nsecretaries explained, \xe2\x80\x9c[t]hose consultations have been tailored to help\nState[] Parties understand and mitigate the risks from their own continued\nparticipation in the Treaty, and to lay the foundation for providing overhead imagery to fill any gaps resulting from the United States\xe2\x80\x99 withdrawal.\xe2\x80\x9d Id. Although those consultations would continue, the secretaries\nadvised that the President had determined that waiting an additional 120\ndays before submitting the notice of withdrawal would be contrary to the\nnational security. Id. Because Congress could not constitutionally require\nthe President to wait 120 days before executing an authority vested in the\nPresident by the Constitution, the President had directed the Secretary of\nState to submit the notice immediately. Id. at 2\xe2\x80\x933.\n7\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nII.\nIn enacting section 1234(a), Congress sought to regulate the President\xe2\x80\x99s\nauthority to withdraw the United States from the Open Skies Treaty.\nArticle II of the Constitution vests the President with the authority to\nexercise the right of the United States under a treaty to withdraw from the\nagreement. That proposition, while occasionally disputed during the early\nRepublic, has since become firmly entrenched in the practice of our\ngovernment. See Authority to Withdraw from the North American Free\nTrade Agreement, 42 Op. O.L.C. __, at *7\xe2\x80\x9313 (Oct. 17, 2018) (\xe2\x80\x9cNAFTA\nWithdrawal \xe2\x80\x9d); id. at *12 (\xe2\x80\x9cIn view of the[] historical examples of presidential action, combined with what has usually been congressional acquiescence, there can no longer be serious doubt that the President may\nterminate a treaty in accordance with its terms.\xe2\x80\x9d). 6 As the Chief Executive, the President bears the constitutional responsibility to execute the\nlaws and treaties of the United States. See, e.g., United States v. Schooner\nPeggy, 5 U.S. (1 Cranch) 103, 109 (1801) (recognizing that \xe2\x80\x9cthe execution of a contract between nations is to be demanded from, and, in the\n6 Accord Memorandum for Robert F. Hoyt, General Counsel, U.S. Dep\xe2\x80\x99t of the Treasury, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of\nLegal Counsel, Re: President\xe2\x80\x99s Authority to Terminate or Amend a Certain Congressional-Executive Agreement at 5 (May 9, 2008); Validity of Congressional-Executive Agreements That Substantially Modify the United States\xe2\x80\x99 Obligations Under an Existing Treaty,\n20 Op. O.L.C. 389, 395 n.14 (1996) (\xe2\x80\x9c[T]he executive branch has taken the position that\nthe President possesses the authority to terminate a treaty in accordance with its terms by\nhis unilateral action[.]\xe2\x80\x9d); Memorandum for Cyrus Vance, Secretary of State, from John M.\nHarmon, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Reservation\nto SALT II Conditioning Termination on Senate Approval at 1 (Nov. 13, 1979); Goldwater\nv. Carter, 617 F.2d 697, 699\xe2\x80\x93708 (D.C. Cir. 1979) (en banc) (per curiam) (upholding\nPresident Carter\xe2\x80\x99s authority to terminate a mutual defense treaty with the Republic of\nChina according to the treaty\xe2\x80\x99s terms), vacated, 444 U.S. 996 (1979); Restatement\n(Fourth) of the Foreign Relations Law of the United States \xc2\xa7 113(1) (Am. Law Inst. 2018)\n(\xe2\x80\x9cAccording to established practice, the President has the authority to act on behalf of the\nUnited States in . . . withdrawing the United States from treaties . . . on the basis of terms\nin the treaty allowing for such action (such as a withdrawal clause)[.]\xe2\x80\x9d); Louis Henkin,\nForeign Affairs and the United States Constitution 213\xe2\x80\x9314 (2d ed. 1996) (explaining that\nit is now \xe2\x80\x9caccepted that the President has the authority to denounce or otherwise terminate\na treaty\xe2\x80\x9d); Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J.\n1615, 1623 (2018) (observing that the Senate \xe2\x80\x9cknows that presidents claim authority to\ninvoke withdrawal clauses unilaterally\xe2\x80\x9d and \xe2\x80\x9croutinely consents to treaties containing\nsuch clauses\xe2\x80\x9d).\n\n8\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\ngeneral, superintended by the executive of each nation\xe2\x80\x9d). And as the\nNation\xe2\x80\x99s sole diplomatic representative, the President is the one voice\nwho speaks for the United States before foreign states. See, e.g., Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015); Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539\nU.S. 396, 424 (2003) (recognizing that the President must have the \xe2\x80\x9ccapacity . . . to speak for the Nation with one voice in dealing with other\ngovernments\xe2\x80\x9d (alteration and quotation marks omitted)). Both of these\npowers underscore that the President has the authority and discretion to\nexecute the United States\xe2\x80\x99 right to withdraw from a treaty.\nBecause a statute that purports to restrict the President from exercising\nthat right would raise serious constitutional questions, we consider first\nwhether section 1234(a) in fact does so. Section 1234(a) implicitly\nacknowledges that the President may withdraw the United States from the\nOpen Skies Treaty by its terms in presuming that the President may provide \xe2\x80\x9cnotice of intent to withdraw\xe2\x80\x9d to the depositaries of the treaty. See\nFY 2020 NDAA \xc2\xa7 1234(a). The statute, however, would require not the\nPresident, but his subordinates, the Secretary of State and the Secretary of\nDefense, to provide 120 days\xe2\x80\x99 notice of any such decision and to make\ncertain certifications based on it. See id. The structure of the statute is a\nbit awkward, because the secretaries are obliged to inform Congress in\nadvance of a presidential decision of which they may have no control or\npotentially even knowledge. Given this mismatch between the statutory\nreporters and the presidential decision-maker, an argument could be made\nthat the statute requires only that the secretaries use their best efforts to\nprovide notice should the President give them the information and time to\ndo so. Such a reading might avoid the constitutional question presented by\nan absolute restriction on the President\xe2\x80\x99s discretion to withdraw the United States from the Open Skies Treaty.\nWe do not think that the question is so easy, however, because the President himself must take care that his subordinates faithfully comply with\nthe law. As the Supreme Court has explained, \xe2\x80\x9cArticle II confers on the\nPresident the general administrative control of those executing the laws. It\nis his responsibility to take care that the laws be faithfully executed. The\nbuck stops with the President, in Harry Truman\xe2\x80\x99s famous phrase.\xe2\x80\x9d Free\nEnter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492\xe2\x80\x9393\n(2010) (citation and quotation marks omitted). That responsibility includes not just complying with the law, but ensuring that his subordinates\n9\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\ndo as well. Although the President could surely communicate the notice of\nwithdrawal himself, or through other subordinates, he ordinarily would\nrely upon the Secretary of State to transmit that decision and would seek\nthe advice of both secretaries before doing so. We presume that Congress\nenacted the statute against the backdrop of these relationships. See, e.g.,\nProposed Executive Order Entitled \xe2\x80\x9cFederal Regulation,\xe2\x80\x9d 5 Op. O.L.C.\n59, 61 (1981). Since the President would have discretion to provide the\nsecretaries with the required notice, we believe that if the statute were\nconstitutional, then he should take care to avoid creating a circumstance\nwhere they would fail to comply. We therefore read section 1234(a) as\neffectively imposing a requirement that the President not submit the\nnotice of withdrawal until 120 days after Congress receives notice of the\nPresident\xe2\x80\x99s intent and the secretaries have made the required certifications. The question remains whether such a restriction is constitutional.\nIII.\nThe decision to withdraw from the Open Skies Treaty implicates the\nPresident\xe2\x80\x99s exclusive constitutional authorities to execute a treaty of the\nUnited States and to conduct the Nation\xe2\x80\x99s diplomacy. The Constitution\nvests the President with all of the \xe2\x80\x9cexecutive Power\xe2\x80\x9d of the United States,\nU.S. Const. art. II, \xc2\xa7 1, cl. 1, and it assigns to the President \xe2\x80\x9cplenary\npowers . . . as the head of the State in [the Nation\xe2\x80\x99s] relations with foreign\ncountries.\xe2\x80\x9d Acquisition of Naval and Air Bases in Exchange for Over-Age\nDestroyers, 39 Op. Att\xe2\x80\x99y Gen. 484, 489\xe2\x80\x9390 (1940) (Jackson, A.G.); see\nalso, e.g., First Nat\xe2\x80\x99l City Bank v. Banco Nacional de Cuba, 406 U.S.\n759, 766 (1972) (describing the \xe2\x80\x9cexclusive competence of the Executive\nBranch in the field of foreign affairs\xe2\x80\x9d). Although Congress may legislate\non topics that affect foreign affairs, Congress\xe2\x80\x99s authority does not extend\nto regulating the President\xe2\x80\x99s decision to exercise a right of the United\nStates to withdraw from a treaty. Accordingly, section 1234(a) unconstitutionally restricts the President\xe2\x80\x99s discretion to withdraw the United States\nfrom the Open Skies Treaty.\nA.\nThe Constitution vests the President with the \xe2\x80\x9cexecutive Power\xe2\x80\x9d of the\nUnited States. U.S. Const. art. II, \xc2\xa7 1, cl. 1. As the Supreme Court recent10\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nly observed, \xe2\x80\x9cthe entire \xe2\x80\x98executive Power\xe2\x80\x99 belongs to the President\nalone.\xe2\x80\x9d Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183,\n2197 (2020). The Constitution further confers upon the President express\npowers relating to foreign affairs, including the power to direct the military as \xe2\x80\x9cCommander in Chief,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 1; to \xe2\x80\x9cmake\xe2\x80\x9d\ntreaties, after receiving the advice and consent of the Senate, id. art. II,\n\xc2\xa7 2, cl. 2; to appoint \xe2\x80\x9cAmbassadors,\xe2\x80\x9d \xe2\x80\x9cpublic Ministers and Consuls,\xe2\x80\x9d id.;\nand to receive \xe2\x80\x9cAmbassadors and other Public Ministers,\xe2\x80\x9d id. art. II, \xc2\xa7 3.\nTaken together, these provisions grant the President the authority and\ndiscretion to implement a treaty by notifying foreign powers of the United\nStates\xe2\x80\x99 exercise of its right to withdraw from the treaty.\nThe Constitution entrusts the President with the \xe2\x80\x9cvast share of responsibility for the conduct of our foreign relations.\xe2\x80\x9d Garamendi, 539 U.S. at\n429. That responsibility includes the \xe2\x80\x9cexclusive authority to conduct\ndiplomacy on behalf of the United States.\xe2\x80\x9d Memorandum for Jennifer G.\nNewstead, Legal Adviser, U.S. Dep\xe2\x80\x99t of State, from Steven A. Engel,\nAssistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Statutory Restrictions on the PLO\xe2\x80\x99s Diplomatic Activities at 7 (Sept.\n11, 2018) (\xe2\x80\x9cPLO\xe2\x80\x99s Diplomatic Activities\xe2\x80\x9d).7 The President, for instance,\nhas the \xe2\x80\x9c\xe2\x80\x98exclusive authority to determine the time, scope, and objectives\xe2\x80\x99\n7\n\nAccord Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(a) of the Department of Defense and Full-Year Continuing\nAppropriations Act, 35 Op. O.L.C. __, at *3\xe2\x80\x934 (Sept. 19, 2011); Presidential Certification\nRegarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 267 (1996); see also, e.g., In re\nHennen, 38 U.S. (13 Pet.) 230, 235 (1839) (\xe2\x80\x9cAs the executive magistrate of the country,\n[the President] is the only functionary intrusted with the foreign relations of the nation.\xe2\x80\x9d);\nS. Doc. No. 56-231, pt. 8, at 21 (1901) (\xe2\x80\x9cThe President is the constitutional representative\nof the United States with regard to foreign nations. He manages our concerns with foreign\nnations, and must necessarily be most competent to determine when, how, and upon what\nsubjects negotiation may be urged with the greatest prospect of success.\xe2\x80\x9d); 10 Annals of\nCong. 613 (1800) (statement of then-Rep. John Marshall) (\xe2\x80\x9cThe President is the sole\norgan of the nation in its external relations, and its sole representative with foreign\nnations.\xe2\x80\x9d); Letter for Edmond Charles Genet from Thomas Jefferson, Secretary of State\n(Nov. 22, 1793), 27 The Papers of Thomas Jefferson 414, 415 n. (1997) (explaining, in\nletter approved by President Washington and his Cabinet that, because the President is\n\xe2\x80\x9cthe only channel of communication between this country and foreign nations, it is from\nhim alone that foreign nations or their agents are to learn what is or has been the will of\nthe nation, and whatever he communicates as such, they have a right and are bound to\nconsider as the expression of the nation\xe2\x80\x9d).\n\n11\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nof international negotiations.\xe2\x80\x9d Prohibition of Spending for Engagement of\nthe Office of Science and Technology Policy with China, 35 Op. O.L.C.\n116, 121 (2011) (quotations omitted) (\xe2\x80\x9cEngagement of OSTP with China\xe2\x80\x9d); see also Earth Island Inst. v. Christopher, 6 F.3d 648, 652 (9th Cir.\n1993) (\xe2\x80\x9c[A] statute\xe2\x80\x99s requirement that the Executive initiate discussions\nwith foreign nations violates the separation of powers[.]\xe2\x80\x9d). It is \xe2\x80\x9cimperative\xe2\x80\x9d that, \xe2\x80\x9c[i]n the conduct of negotiations with foreign governments,\xe2\x80\x9d\nthe \xe2\x80\x9cUnited States speak with one voice,\xe2\x80\x9d and the Constitution\xe2\x80\x99s overriding design is that this \xe2\x80\x9cone voice is the President\xe2\x80\x99s.\xe2\x80\x9d Issues Raised by\nForeign Relations Authorization Bill, 14 Op. O.L.C. 37, 40 (1990) (quoting Message to the Senate Returning Without Approval the Bill Prohibiting the Export of Technology for the Joint Japan-United States Development of FS-X Aircraft (July 31, 1989), 2 Pub. Papers of Pres. George\nH.W. Bush 1042, 1043 (July 31, 1989)).\nThe Constitution also assigns to the President the responsibility to\nmake treaties. The President has \xe2\x80\x9cthe sole power to negotiate treaties.\xe2\x80\x9d\nZivotofsky, 576 U.S. at 13. The Senate must provide its advice and consent before a treaty may be valid. U.S. Const. art. II, \xc2\xa7 2, cl. 2. But even\nwhen the Senate consents, the President still must decide to bring the\ntreaty into effect by ratifying the treaty. See, e.g., Relevance of Senate\nRatification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32 (1987)\n(observing that, even after the Senate provides consent, \xe2\x80\x9cthe President\nmay . . . refuse to ratify the treaty\xe2\x80\x9d); Restatement (Fourth) of the Foreign\nRelations Law of the United States \xc2\xa7 303 reporter\xe2\x80\x99s note 5 (Am. Law Inst.\n2018) (\xe2\x80\x9cRestatement (Fourth)\xe2\x80\x9d) (explaining that, after the Senate approves\na treaty, then the ensuing \xe2\x80\x9cdecision whether to ratify the treaty\xe2\x80\x94and to\ntake the associated steps to bring the treaty into legal force for the United\nStates\xe2\x80\x94is vested wholly in the President\xe2\x80\x9d). Whether to ratify a treaty is\nitself a judgment that falls within the executive power of the President.\nThe President\xe2\x80\x99s exclusive authority over diplomacy extends not only to\nthe making of treaties, but to their maintenance as well. The Supreme\nCourt has long recognized that \xe2\x80\x9cthe execution of a contract between\nnations is to be demanded from, and, in the general, superintended by the\nexecutive of each nation.\xe2\x80\x9d Schooner Peggy, 5 U.S. at 109; see also United\nStates v. The Amistad, 40 U.S. (15 Pet.) 518, 571\xe2\x80\x9372 (1841) (recognizing\nthat the President\xe2\x80\x99s responsibility to execute the laws \xe2\x80\x9cis, if possible,\nmore imperative\xe2\x80\x9d with respect to the execution of treaties than statutes,\n12\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\n\xe2\x80\x9csince the execution of treaties being connected with public and foreign\nrelations, is devolved upon the executive branch\xe2\x80\x9d); Goldwater v. Carter,\n444 U.S. 996, 1000 n.1 (1979) (Powell, J., concurring in judgment) (recognizing the President\xe2\x80\x99s \xe2\x80\x9cduty to execute\xe2\x80\x9d treaty provisions). We have\nthus recognized that \xe2\x80\x9c[i]t belongs exclusively to the President to interpret\nand execute treaties,\xe2\x80\x9d and that this power \xe2\x80\x9cnecessarily includes the power\nto determine whether, and how far, the treaty remains in force.\xe2\x80\x9d Constitutionality of Legislative Provision Regarding ABM Treaty, 20 Op. O.L.C.\n246, 248\xe2\x80\x9349 (1996).\nThe President\xe2\x80\x99s power to withdraw from an international agreement\nfollows from these constitutional authorities. Deciding whether to withdraw from a treaty is not only a quintessentially executive decision, but it\nis also one that invariably requires the conduct of diplomacy. See, e.g.,\nVienna Convention on the Law of Treaties art. 67, \xc2\xb6 2, opened for signature May 23, 1969, 115 U.N.T.S. 331 (requiring that a decision to withdraw be communicated by formal diplomatic notice). 8 Withdrawal from a\ntreaty is a diplomatic act reserved for the President and committed to his\njudgment. See NAFTA Withdrawal at 14\xe2\x80\x9315 (\xe2\x80\x9cThe diplomatic responsibility for communicating that notice would rest squarely with the President.\xe2\x80\x9d); see also Constitutionality of the Rohrabacher Amendment, 25 Op.\nO.L.C. 161, 166 (2001) (recognizing the President\xe2\x80\x99s \xe2\x80\x9cresponsibility for\ntreaty interpretation and enforcement, and the authority to place the United States in breach of a treaty or even to terminate it, should the President\nfind that advisable\xe2\x80\x9d); S. Comm. on Foreign Relations, 106th Cong., Treaties and Other International Agreements: The Role of the United States\nSenate 201 (Comm. Print 2001) (noting that \xe2\x80\x9cthe termination of the outstanding international obligation seems to reside in the President since he\nalone is able to communicate with foreign powers\xe2\x80\x9d).\nThe President\xe2\x80\x99s responsibility to execute the United States\xe2\x80\x99 right of\nwithdrawal necessarily includes discretion to determine whether and when\nhe should do so. President Carter, for example, gave effect to his decision\nto recognize the People\xe2\x80\x99s Republic of China as a sovereign by terminating\n8\n\nAlthough the United States has not ratified the Vienna Convention on the Law of\nTreaties, we have recognized that many of its provisions reflect customary international\nlaw. See, e.g., Authority of the President Under Domestic and International Law to Use\nMilitary Force Against Iraq, 26 Op. O.L.C. 143, 164 n.24 (2002); Trade Act Restrictions\non the Extension of Most-Favored-Nation Rights, 11 Op. O.L.C. 128, 134 n.13 (1987).\n\n13\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\na mutual defense treaty with Taiwan. See Goldwater, 617 F.2d at 707\xe2\x80\x9308.\nAs the D.C. Circuit explained, determining how to maintain international\nrelationships is \xe2\x80\x9ca field in which the President, not Congress, has responsibility under our Constitution.\xe2\x80\x9d Id. at 708. The decision to terminate a\ntreaty often requires \xe2\x80\x9cimmediate action,\xe2\x80\x9d and the President must make\n\xe2\x80\x9cactive policy determination[s] as to the conduct of the United States in\nregard to a treaty in response to numerous problems and circumstances as\nthey arise.\xe2\x80\x9d Id. at 706\xe2\x80\x9307. The decision is likewise an aspect of the President\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98unique role in communicating with foreign governments,\xe2\x80\x99 and\nCongress may not compel the President to contradict [the] message\xe2\x80\x9d he\nchooses to send in doing so. PLO\xe2\x80\x99s Diplomatic Activities at 8 (quoting\nZivotofsky, 576 U.S. at 21).\nThe Supreme Court\xe2\x80\x99s decision in Zivotofsky reinforces the conclusion\nthat the President\xe2\x80\x99s authority to exercise the United States\xe2\x80\x99 right to withdraw from a treaty is exclusive. There, the Court considered the constitutionality of a federal statute that allowed U.S. citizens born in Jerusalem\nto list their place of birth as \xe2\x80\x9cIsrael,\xe2\x80\x9d in conflict with the President\xe2\x80\x99s\npolicy at the time not to recognize Israeli sovereignty over that city. See\nZivotofsky, 576 U.S. at 5\xe2\x80\x937. The Court concluded that the statute was\nunconstitutional because the President has the exclusive authority to\nrecognize foreign sovereigns, a power that flows from the President\xe2\x80\x99s\nconstitutionally delineated powers to receive and appoint ambassadors,\nand from the \xe2\x80\x9clack of any similar power vested in Congress.\xe2\x80\x9d Id. at 14.\nThe statute unconstitutionally interfered with the President\xe2\x80\x99s recognition\nauthority, which requires the Nation to \xe2\x80\x9cspeak with one voice\xe2\x80\x9d regarding\nsuch decisions. Id. (alteration and quotation marks omitted). \xe2\x80\x9cIt was an\nimproper act,\xe2\x80\x9d the Court explained, \xe2\x80\x9cfor Congress to \xe2\x80\x98aggrandize[e] its\npower at the expense of another branch\xe2\x80\x99 by requiring the President to\ncontradict an earlier recognition decision in an official document issued\nby the Executive Branch.\xe2\x80\x9d Id. at 31\xe2\x80\x9332 (quoting Freytag v. Comm\xe2\x80\x99r, 501\nU.S. 868, 878 (1991)). \xe2\x80\x9cTo allow Congress to control the President\xe2\x80\x99s\ncommunication,\xe2\x80\x9d the Court continued, \xe2\x80\x9cis to allow Congress to exercise\nthat exclusive power itself.\xe2\x80\x9d Id. at 32.\nWe think that the same conclusion follows here. The Constitution\ngrants the President the power to execute the treaties of the United States,\nand it does not provide Congress with any parallel responsibility. Just as\nthe recognition power is an exclusive power of the President arising as an\n14\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nincident to his other constitutional authorities, see id. at 14, his power to\nexercise the United States\xe2\x80\x99 right to terminate a treaty is an exclusive\npower that is part of the President\xe2\x80\x99s executive power, treaty-making\npower, and diplomatic power. No less than the power to recognize foreign\nsovereigns, the decision to withdraw from a treaty \xe2\x80\x9cis a topic on which the\nNation must speak with one voice.\xe2\x80\x9d Id. (alteration and quotation marks\nomitted). We think that, when the President has spoken for the Nation on\nthe international plane, Congress may not enact legislation that delays or\nobstructs that decision with a conflicting diplomatic message. As in\nZivotofsky, if we were to acknowledge Congress\xe2\x80\x99s power to regulate the\nconditions and timing of the President\xe2\x80\x99s decision to exercise the United\nStates\xe2\x80\x99 right of withdrawal from a treaty, we would be accepting the\nproposition that Congress may itself exercise that exclusive power of the\nPresident.\nB.\nSection 1234(a) contravenes an exclusive power of the President, and it\nmay not be justified as the exercise of any concurrent power of Congress.\nSee Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)\n(Jackson, J., concurring). Congress \xe2\x80\x9cclearly possesses significant article I\npowers in the area of foreign affairs, including with respect to questions\nof war and neutrality, commerce and trade with other nations, foreign aid,\nand immigration.\xe2\x80\x9d Legislation Prohibiting Spending for Delegations to\nU.N. Agencies Chaired by Countries That Support International Terrorism, 33 Op. O.L.C. 221, 225\xe2\x80\x9326 (2009) (\xe2\x80\x9cDelegations to U.N. Agencies\xe2\x80\x9d).\nAnd there may well be cases where Congress\xe2\x80\x99s exercise of those powers\nwould permissibly affect the foreign relations of the United States. But\nsection 1234(a) does not present any conflict between an authority of the\nPresident and a congressional regulation of war, foreign commerce, immigration, or any other power of Congress. To the contrary, the statute\ndirectly regulates the actions of the Executive Branch, and specifically\nseeks to restrict its authority to communicate with foreign nations about\nthe execution of a right of the United States under an existing treaty.\nSection 1234(a) likewise is not an exercise of Congress\xe2\x80\x99s authority to\nadopt laws to implement treaties as part of our domestic law. See Bond v.\nUnited States, 572 U.S. 844, 855 (2014). Rather, section 1234(a) purports\n15\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nto regulate the President\xe2\x80\x99s actions on the international stage by operating\ndirectly upon his subordinates on a decision whether to take diplomatic\naction. The power of Congress to implement a treaty does not itself imply\na power to direct the President to engage in diplomacy or control the\nmanner by which the President executes the rights of the United States\nunder treaties.\nNor may section 1234(a) be justified on the ground that Congress may\nadopt measures that create obligations under our domestic law supplementing or even conflicting with treaty obligations. Because an act of\nCongress is equivalent under our domestic law to that of a self-executing\ntreaty, when Congress exercises its regulatory authorities, it may modify a\ntreaty\xe2\x80\x99s domestic effect through the enactment of subsequent legislation.\nSee, e.g., Validity of Congressional-Executive Agreements That Substantially Modify the United States\xe2\x80\x99 Obligations Under an Existing Treaty, 20\nOp. O.L.C. 389, 391\xe2\x80\x9392 (1996) (\xe2\x80\x9cValidity of Agreements\xe2\x80\x9d). But again,\nsection 1234(a) does not purport to alter the domestic effect of the Open\nSkies Treaty; rather, it seeks to regulate the actions of the Executive\nBranch on the international plane. 9\nFinally, section 1234(a) is not a reasonable condition imposed upon the\nPresident\xe2\x80\x99s diplomatic relations in exchange for Congress\xe2\x80\x99s offer to\nexpedite consideration of its approval of the resulting agreement. In the\ncontext of so-called \xe2\x80\x9cfast-track\xe2\x80\x9d trade agreements, we have recognized\nthat Congress may agree \xe2\x80\x9cto consider legislation implementing an agreement on an expedited basis only on the condition that the President comply with certain requirements that are otherwise constitutional.\xe2\x80\x9d Trade Act\nRestrictions on the Extension of Most-Favored-Nation Rights, 11 Op.\nO.L.C. 128, 128 n.1 (1987) (\xe2\x80\x9cTrade Act Restrictions\xe2\x80\x9d); see also Memorandum for L. Anthony Sutin, Acting Assistant Attorney General, Office\nof Legislative Affairs, from William Michael Treanor, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Trade and Tariff Act\n(S. 2400) at 3 (Aug. 19, 1998) (\xe2\x80\x9cCongress may impose reasonable and\nrelevant consultation and notification requirements\xe2\x80\x9d in exchange for\ngranting \xe2\x80\x9cfast-track treatment to trade agreements\xe2\x80\x9d). In such cases, Con9 Similarly, section 1234(a) cannot be justified as an exercise of Congress\xe2\x80\x99s power to\nauthorize the President in advance to pursue negotiations that modify an internat ional\nagreement. See Validity of Agreements, 20 Op. O.L.C. at 395\xe2\x80\x93401.\n\n16\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\ngress does not prohibit the President from exercising his diplomatic authorities, but simply offers him expedited legislative consideration of\ndomestic legislation to implement a trade agreement in return for meeting\nreasonable conditions negotiating the agreement in the first place. 10 The\nPresident always retains his \xe2\x80\x9cindependent authority\xe2\x80\x9d to bypass those\ncongressional requirements in negotiating an agreement, at the price of\nforegoing fast-track procedures. Trade Act Restrictions, 11 Op. O.L.C. at\n128 n.1. In marked contrast, however, section 1234(a) does not offer the\nPresident any choice or advantage, but is an attempt to delay the United\nStates\xe2\x80\x99 submission of its notice of withdrawal.\nIn sum, section 1234(a) invades the exclusive authority of the President. Article XV provides that the United States may withdraw unilaterally on six months\xe2\x80\x99 notice, see OST art. XV, \xc2\xb6 2, but section 1234(a)\nprovides for a delay in withdrawing until ten months after the President\nmakes the withdrawal decision, and only following advance consultation\nwith the other state parties, see FY 2020 NDAA \xc2\xa7 1234(a), 133 Stat. at\n168. Congress therefore has sought to burden the President\xe2\x80\x99s discretion\nto execute the Treaty according to its terms. Congress \xe2\x80\x9cmay not constitutionally \xe2\x80\x98dictate the modes and means by which the President engages in\ninternational diplomacy.\xe2\x80\x99\xe2\x80\x9d Engagement of OSTP with China, 35 Op.\nO.L.C. 122 (quoting Delegations to U.N. Agencies, 33 Op. O.L.C. at 226);\nsee also PLO\xe2\x80\x99s Diplomatic Activities at 7 (recognizing that Congress may\nnot contravene \xe2\x80\x9cthe exclusive authority to conduct diplomacy on behalf of\nthe United States\xe2\x80\x9d). If Congress cannot determine the \xe2\x80\x9cmodes\xe2\x80\x9d or\n\xe2\x80\x9cmeans\xe2\x80\x9d of the President\xe2\x80\x99s diplomacy, it may not compel, restrict, or\ndelay the President\xe2\x80\x99s diplomatic conduct in the first instance, including in\nquestions of timing, and especially when that conduct involves the exercise of a right provided for under a treaty. Worse yet, one of these conditions (consulting with the state parties) is itself a diplomatic activity that\nlies within the discretion of the President. By enacting section 1234(a),\nCongress injected itself into the decision whether and when to terminate a\n10 Even where the President is offered a choice, there are cases where such conditions\nmay be unconstitutional. See, e.g., Publication of a Report to the President on the Effect\nof Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __,\nat *20 (Jan. 17, 2020); Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op.\nO.L.C. 189, 196\xe2\x80\x9398 (1996). But reasonable conditions on otherwise appropriate domestic\nlegislation do not unconstitutionally interfere with the powers of the President.\n\n17\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\ntreaty, thereby interfering with the President\xe2\x80\x99s ability to take the sort of\n\xe2\x80\x9cdecisive,\xe2\x80\x9d Zivotofsky, 576 U.S. at 15, or \xe2\x80\x9cimmediate action,\xe2\x80\x9d Goldwater,\n617 F.2d at 706, that the Constitution authorizes the President to undertake in the conduct of foreign affairs.\nIV.\nOur conclusion is reinforced by the historical practice of the United\nStates\xe2\x80\x99 withdrawal from treaties. See, e.g., NLRB v. Noel Canning, 573\nU.S. 513, 537 (2014). We have not identified any direct precedent for a\nlaw like section 1234(a). Although there are examples in which Congress\nclaimed a role in the withdrawal of treaties over the centuries, the modern\npractice stands decidedly to the contrary, and even those earlier examples\ndo not support the conclusion that Congress may require the United States\nto remain in a treaty longer than the President deems in the national\ninterest.\nA.\nSection 1234(a) appears almost unique in our Nation\xe2\x80\x99s history. Although Congress has claimed at times an authority to direct the President\nto exercise the country\xe2\x80\x99s right to withdraw from a treaty, we are not aware\nof prior instances where Congress has adopted a law purporting to prohibit or delay such a presidential decision. In recent cases, the Supreme Court\nhas repeatedly looked askance at novel structures that seek to alter the\nseparation of powers. See Zivotofsky, 576 U.S. at 23 (placing \xe2\x80\x9c\xe2\x80\x98significant\nweight upon historical practice\xe2\x80\x99\xe2\x80\x9d in concluding that the President had\nexclusive constitutional authority to recognize foreign governments\n(quoting Noel Canning, 573 U.S. at 514)); see also Seila Law, 140 S. Ct.\nat 2201 (\xe2\x80\x9c\xe2\x80\x98Perhaps the most telling indication of [a] severe constitutional\nproblem\xe2\x80\x99 with an executive entity \xe2\x80\x98is [a] lack of historical precedent\xe2\x80\x99 to\nsupport it.\xe2\x80\x9d (quoting Free Enterprise Fund, 561 U.S. at 505)). As in those\ncases, the absence of any precedent for a restriction like section 1234(a)\nspeaks loudly.\nWe have identified two modern instances where Members of Congress\nproposed measures to restrict the President from withdrawing from a\ntreaty. In both cases, this Office objected on constitutional grounds, and\nthe measures were not adopted. In 1979, the Office reviewed a Senate\n18\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nproposal that would have conditioned its approval of an agreement arising\nout the Strategic Arms Limitations Talks (\xe2\x80\x9cSALT\xe2\x80\x9d) on a reservation that\nthe President could exercise the right to terminate the treaty \xe2\x80\x9conly with\nthe approval of the Senate.\xe2\x80\x9d Memorandum for Cyrus Vance, Secretary of\nState, from John M. Harmon, Assistant Attorney General, Office of Legal\nCounsel, Re: Proposed Reservation to SALT II Conditioning Termination\non Senate Approval at 1 (Nov. 13, 1979). Article XIX of the agreement\npermitted termination if the United States determined that \xe2\x80\x9cextraordinary\nevents related to the subject matter of [the treaty] have jeopardized its\nsupreme interests.\xe2\x80\x9d Id. We viewed the Senate\xe2\x80\x99s proposal to be unconstitutional because determining whether \xe2\x80\x9cextraordinary events\xe2\x80\x9d had \xe2\x80\x9cjeopardized\xe2\x80\x9d the country\xe2\x80\x99s interests was a determination to be made exclusively\nby the President. See id. at 2. Any attempt to impose such a limit \xe2\x80\x9cby the\nSenate through a reservation to the treaty, or through a Senate resolution,\nor even through legislation passed by both Houses of Congress to require\nSenate approval as a condition to the exercise of that presidential authority would be unconstitutional.\xe2\x80\x9d Id. (emphasis added). The Senate did not\nadopt the proposal (or ultimately approve the agreement). 11\nIn 1988, the Office raised a similar objection in reviewing a bill entitled\nthe Anti-Terrorism Sanctions Act of 1988, which would have required the\nPresident to \xe2\x80\x9cterminate, withdraw, or suspend any portion of any trade\nagreement or treaty\xe2\x80\x9d with certain countries found to support international\nterrorism. 134 Cong. Rec. 4334 (1988). The bill would have allowed the\nPresident to \xe2\x80\x9cwaive all, or any portion of\xe2\x80\x9d its provisions if such a waiver\nwere in the best interests of the United States. Id. Any waiver, however,\nwould have become effective \xe2\x80\x9conly after the close of the thirty-day period\nThe Senate\xe2\x80\x99s draft resolution of ratification did not include the requirement for Senate approval. See The SALT II Treaty, S. Exec. Rep. No. 96-14, at 72\xe2\x80\x9378 (1979). As late\nas November 15, 1979, some members of the Senate still urged its inclusion, but agreed to\npostpone resolution of the issue until the D.C. Circuit rendered its decision in the then pending Goldwater litigation. See 125 Cong. Rec. 32,525 (1979) (statement of Sen.\nGoldwater). The D.C. Circuit issued its decision on November 30, 1979, see Goldwater,\n617 F.2d at 697, but subsequent events obviated further discussion after the Soviet Union\ninvaded Afghanistan and President Carter requested the Senate postpone consideration of\nSALT II, see Letter to the Majority Leader of the Senate Requesting a Delay in Senate\nConsideration of the Treaty (Jan. 3, 1980), 1 Pub. Papers of Pres. Jimmy Carter 12\n(1980). Ultimately, the SALT II treaty was never ratified. See, e.g., 132 Cong. Rec. 3500\n(1986).\n11\n\n19\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\n[beginning] on the date on which the President submits to the Congress\nwritten notice of such waiver.\xe2\x80\x9d Id. Again, the Office found this bill to be\n\xe2\x80\x9cunconstitutional because it require[d] the President to terminate treaties\nor executive agreements.\xe2\x80\x9d Memorandum for Thomas M. Boyd, Acting\nAssistant Attorney General, Office of Legislative Affairs, from John O.\nMcGinnis, Deputy Assistant Attorney General, Office of Legal Counsel,\natt. at 1 (June 16, 1988) (attaching draft Letter for Lloyd Bentsen, Chairman, Committee on Finance, U.S. Senate, from Thomas M. Boyd, Acting\nAssistant Attorney General, Office of Legislative Affairs). Moreover, the\nbill was \xe2\x80\x9cnot saved from unconstitutionality by the waiver provision.\xe2\x80\x9d Id.\nat 2. We explained that, \xe2\x80\x9c[s]ince the power to terminate treaties and other\ninternational agreements is vested exclusively in the President, Congress\ndoes not have the constitutional power to condition his exercise of that\npower in any way.\xe2\x80\x9d Id. Again, that bill was not enacted. 12\n\n12 Although section 1234(a) is novel on the subject of treaty withdrawal, it bears similarities to other statutory provisions that require congressional notification before the exercise of certain executive actions. Where\nthese notification provisions burden areas within the exclusive constitutional\nauthority of the President, the Executive Branch has raised similar constitutional objections. See, e.g., Constitutionality of Proposed Statutory Provision\nRequiring Prior Congressional Notification for Certain CIA Covert Actions,\n13 Op. O.L.C. 258, 258\xe2\x80\x9361 (1989) (objecting to a notice provision that would\nprohibit the expenditure of certain funds for covert activities \xe2\x80\x9cif the President\n[had] not first notified the appropriate congressional committees of the proposed expenditure\xe2\x80\x9d because it would \xe2\x80\x9crequir[e] the President to relinquish his\nconstitutional discretion in foreign affairs\xe2\x80\x9d); Inspector General Legislation, 1\nOp. O.L.C. 16, 18 (1977) (concluding that a requirement that the President\nnotify Congress before removing an inspector general \xe2\x80\x9cconstitute[d] an\nimproper restriction on the President\xe2\x80\x99s exclusive power to remove Presidentially appointed executive officers\xe2\x80\x9d); see also Statement on Signing the Intelligence Authorization Act, Fiscal Year 1990 (Nov. 30, 1989), 2 Pub. Papers of\nPres. George Bush 1609, 1610 (1989) (objecting to a similar provision because \xe2\x80\x9cits obvious effect is to burden [the] exercise\xe2\x80\x9d of the President\xe2\x80\x99s removal authority, and therefore, \xe2\x80\x9cwhile I intend to communicate my reasons in the\nevent I remove an Inspector General, I shall do so as a matter of comity rather\nthan statutory obligation.\xe2\x80\x9d).\n\n20\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nB.\nAlthough section 1234(a) appears to be unique among statutes in restricting the President\xe2\x80\x99s authority over treaty withdrawal, the historical\npractice proves more equivocal when it comes to determining what role\nCongress may play in the termination of treaties. As early as the Washington Administration, the Founders divided over the responsibility for treaty\ntermination, and there are examples before the Civil War where Congress\nand the Senate played a role in the process. See NAFTA Withdrawal at\n*7\xe2\x80\x9310. \xe2\x80\x9cAlthough the President\xe2\x80\x99s authority to act unilaterally to terminate\na treaty is now well established, there are a number of early examples\ninvolving alternative procedures for treaty termination, including \xe2\x80\x98direct\ncongressional action, congressional authorization or direction of presidential action, and senatorial authorization or approval.\xe2\x80\x9d Id. at *7 (quoting\nRestatement (Fourth) \xc2\xa7 113 cmt. c). These early examples include one\ninstance where Congress purported to abrogate a treaty directly and a\nhandful of others where Congress or the Senate affirmatively requested or\ndirected that the President terminate a treaty or other international agreement. In some cases, the President agreed to take such measures, but in\nothers, he raised constitutional objections and declined to do so.\nBy the end of the nineteenth century, however, the practice turned more\nstrongly in the President\xe2\x80\x99s favor. \xe2\x80\x9cBeginning with President McKinley in\n1899, and growing over time, Presidents increasingly assumed the authority to terminate a treaty without approval by the Senate or the full Congress.\xe2\x80\x9d NAFTA Withdrawal at *11. In our prior opinion, we discussed\nnumerous examples of treaty terminations, id. at *11\xe2\x80\x9312, and cited several\nother cases where Presidents had unilaterally terminated other kinds of\ninternational agreements, id. at 15\xe2\x80\x9318.13 These examples reinforce that the\nPresident\xe2\x80\x99s authority under the Constitution to exercise the right of the\n\n13 Additional examples reinforce the trend towards unilateral presidential termination.\nSee 5 Green Haywood Hackworth, Digest of International Law \xc2\xa7 509, at 329\xe2\x80\x9332 (1943)\n(\xe2\x80\x9cHackworth\xe2\x80\x9d) (discussing the termination of an anti-smuggling convention with Mexico\nin 1927 \xe2\x80\x9cwithout the direction of either the Senate alone or both Houses of Congress;\xe2\x80\x9d the\nU.S. withdrawal from a commercial convention in 1933 \xe2\x80\x9cwithout action by the Senate or\nboth Houses of Congress;\xe2\x80\x9d and the unilateral termination of an agreement with Japan by\nPresident Roosevelt in 1939).\n\n21\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nUnited States to terminate a treaty arises as an incident to the President\xe2\x80\x99s\nauthority over the execution of treaties and diplomacy.\nThe historical practice may not be uniform, but we think that the most\nsalient lesson arises from what the history does not contain. Although\nPresidents from time to time have acted consistently with congressional\nrequests to terminate treaties, we are not aware of any instance in which a\ntreaty has been allowed to endure based upon congressional action contrary to the President\xe2\x80\x99s wishes. See Goldwater, 617 F.2d at 706. Section\n1234(a), however, purports to have this exact effect by requiring the\ncountry to remain a party to the Treaty for at least four months longer\nthan the President has otherwise determined to be appropriate. And like\nthe Goldwater court, we find the absence of any historical analogue to be\ntelling evidence that section 1234(a) unconstitutionally restricts the President. Cf. Zivotofsky, 576 U.S. at 23.\n1.\nAs we explained in the NAFTA Withdrawal opinion, \xe2\x80\x9c[w]hile it would\nhave been convenient had the Founders squarely addressed treaty termination in the constitutional text itself, we are left with no such clarity, and\nthe appropriate division of authority between the President and Congress\nwas hotly debated at the very start of the Republic.\xe2\x80\x9d Id. at *7. In 1793,\nPresident Washington proclaimed United States neutrality in revolutionary France\xe2\x80\x99s conflict with Great Britain and other European powers. See\nNeutrality Proclamation (Apr. 22, 1793), 1 A Compilation of the Messages\nand Papers of the Presidents, 1789\xe2\x80\x931897, at 156\xe2\x80\x9357 (James D. Richardson ed., 1896) (\xe2\x80\x9cPapers of the Presidents\xe2\x80\x9d). The Neutrality Proclamation\nraised a question about whether neutrality was consistent with the United\nStates\xe2\x80\x99 treaties of alliance and amity with France, which had been adopted\nduring the Revolutionary War, and obligated the United States, among\nmany other things, to guarantee the security of French possessions in the\nWest Indies. See Treaty of Alliance, U.S.-Fr., Feb. 6, 1778, 8 Stat. 6; see\nalso Treaty of Amity and Commerce, U.S.-Fr., Feb. 6, 1778, 8 Stat. 12.\nFollowing the Neutrality Proclamation, Washington\xe2\x80\x99s cabinet debated\nwhether the United States should formally suspend or terminate those\ntreaties. Secretary of the Treasury Alexander Hamilton and Secretary of\nWar Henry Knox argued that suspension or termination was permissible\n22\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nunder international law, but Secretary of State Thomas Jefferson and\nAttorney General Edmund Randolph disagreed. 14 None of the cabinet\nofficers, however, seems to have questioned that the President could\nsuspend or terminate the treaties himself, if it were appropriate. To the\ncontrary, in publicly defending the Neutrality Proclamation, Hamilton\nopined that, \xe2\x80\x9cthough treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.\xe2\x80\x9d\nAlexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 The\nPapers of Alexander Hamilton 33, 42 (Harold C. Syrett ed., 1969).15\nPresident Washington took a similarly broad view of the President\xe2\x80\x99s\nauthority in this area during a 1796 dispute with the House of Representatives over whether that body could request a copy of the President\xe2\x80\x99s\ndiplomatic instructions to his emissary, Chief Justice John Jay. Message\nto the House of Representatives (Mar. 30, 1796), 1 Papers of the Presidents 194. President Washington explained that the House could not\nconstitutionally demand those papers because it lacked any legitimate\nlegislative purpose, since \xe2\x80\x9cthe power of making treaties is exclusively\nvested in the President, by and with the advice and consent of the Senate,\nprovided two-thirds of the Senators present concur; and that every treaty\nso made and promulgated thenceforward became the law of the land.\xe2\x80\x9d Id.\n\n14\n\nCompare Letter for George Washington from Alexander Hamilton and Henry Knox\n(May 2, 1793), 14 The Papers of Alexander Hamilton 367, 372\xe2\x80\x9385 (Harold C. Syrett ed.,\n1969), with Thomas Jefferson, Opinion on the Treaties with France (Apr. 28, 1793), 25\nThe Papers of Thomas Jefferson 608, 609\xe2\x80\x9317 (John Catanzariti ed., 1992), and Letter for\nGeorge Washington from Edmund Randolph (May 6, 1793), 12 The Papers of George\nWashington 534, 537\xe2\x80\x9343 (Christine Sternberg Patrick & John C. Pinheiro eds., 2005).\n15 James Madison, who was then in the House of Representatives, disagreed, arguing\nthat the treaty power was \xe2\x80\x9clegislative\xe2\x80\x9d not \xe2\x80\x9cexecutive\xe2\x80\x9d in character and that the President\xe2\x80\x99s neutrality proclamation had usurped Congress\xe2\x80\x99s power to declare war. See James\nMadison, Helvidius No. 1 (Aug. 24, 1793), reprinted in 15 The Papers of James Madison\n66, 69 (Thomas A. Mason et al. eds., 19851985). In 1801, Jefferson took a similar view\nin his Manual of Parliamentary Practice. See Thomas Jefferson, A Manual of Parliamentary Practice \xc2\xa7 599 (Samuel Harrison Smith ed., 1801) (citing the 1798 example, but no\nother authority, for the proposition that, \xe2\x80\x9c[t]reaties being declared, equally with the laws\nof the U. States, to be the supreme law of the land, it is understood that an act of the\nlegislature alone can declare them infringed and rescinded\xe2\x80\x9d); see also Ware v. Hylton,\n3 U.S. (3 Dall.) 199, 261 (1796) (Iredell, Circuit Justice) (declaring that \xe2\x80\x9cCongress . . .\nalone\xe2\x80\x9d had the power to \xe2\x80\x9cvoid\xe2\x80\x9d a treaty based on a breach by another party to the treaty,\nwhich would require the circuit justice to \xe2\x80\x9cforbear any share in executing it as a judge\xe2\x80\x9d).\n\n23\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nat 195. President Washington\xe2\x80\x99s message reflected the view that the House\ndid not have any ongoing role in the implementation or the termination of\nthe Jay Treaty.\nAlthough these examples reflect an understanding that the Executive\nalone is responsible for the maintenance of treaties, Congress during the\nAdams Administration took a step in the other direction when it adopted a\nmeasure to abrogate the treaties with France\xe2\x80\x94the only case where Congress acted to directly abrogate a treaty, rather than to request that the\nPresident himself take such an action. In 1798, as relations with France\ndeteriorated following the XYZ Affair, Congress enacted a series of\nmeasures to authorize the Quasi-War with France, one of which included\na declaration that \xe2\x80\x9cthe treaties concluded between the United States and\nFrance,\xe2\x80\x9d including the treaty of alliance, \xe2\x80\x9cshall not henceforth be regarded\nas legally obligatory on the government or citizens of the United States.\xe2\x80\x9d\nAct of July 7, 1798, ch. 67, 1 Stat. 578, 578. There was some debate\nwithin Congress about whether that step fell within Congress\xe2\x80\x99s power. See\nDavid P. Currie, The Constitution in Congress: The Federalist Period,\n1789\xe2\x80\x931801, at 251\xe2\x80\x9352 (1997). President Adams, however, implemented\nthe joint resolution after signing it into law. See Proclamation Revoking\nthe Exequaturs of the French Consuls (July 13, 1798), 9 The Works of\nJohn Adams, Second President of the United States 170, 171\xe2\x80\x9372 (1854).\nAt the time, and in the years since, there has been disagreement about\nwhether the 1798 Act actually terminated the treaties with France or\nmerely abrogated their domestic legal effects. See NAFTA Withdrawal\nat *8\xe2\x80\x939 & n.5. President Adams apparently did not submit any notice of\nwithdrawal from the treaties. 16 And French representatives took the position in later negotiations that the legislative act had not effectively re-\n\n16 See Memorandum for the Senate Committee on Foreign Relations, from Vita Bite,\nCongressional Research Service, Re: Precedents for U.S. Abrogation of Treaties (Feb. 25,\n1974) (\xe2\x80\x9cAbrogation Precedents\xe2\x80\x9d), reprinted in S. Comm. on Foreign Relations, 95th\nCong., Treaties and Other International Agreements: The Role of the United States Senate\n44, 54 (Comm. Print 1978) (\xe2\x80\x9cTreaties Report \xe2\x80\x9d) (\xe2\x80\x9c[I]t does not appear that [President\nAdams] took any steps to give France notice that the treaties had been denounced by the\nUnited States.\xe2\x80\x9d); David Gray Adler, The Constitution and the Termination of Treaties\n152\xe2\x80\x9359 (1986) (arguing that the 1798 statute did not validly terminate the international law obligations of the United States under the treaty because President Adams did not\nprovide notice).\n\n24\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nleased the United States from its international obligations. See 5 John\nBassett Moore, A Digest of International Law \xc2\xa7 774, at 357\xe2\x80\x9358 (1906);\n5 John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 4430\xe2\x80\x9331 (1898). Later\nauthors similarly opined that the 1798 Act had only domestic effect. See\nSamuel B. Crandall, Treaties: Their Making and Enforcement \xc2\xa7 185, at\n463 (2d ed. 1916) (\xe2\x80\x9cCrandall\xe2\x80\x9d) (\xe2\x80\x9cAn abrogation by Congress . . . while\nnecessarily binding on the courts of this country, and sufficient to terminate the operation of the treaty as municipal law, will seldom be accepted\nby the other contracting parties as conclusive.\xe2\x80\x9d); 2 Francis Wharton,\nA Digest of International Law \xc2\xa7 137a, at 60 (1886) (\xe2\x80\x9cThis annulling act\n. . . whatever might be its municipal effect, by itself could not internationally release the United States from its obligations to France.\xe2\x80\x9d). But see\nHooper v. United States, 22 Ct. Cl. 408, 425\xe2\x80\x9326 (1887) (concluding the\nopposite).\nTo the extent that the 1798 Act did abrogate the treaties of alliance and\namity themselves, it might perhaps be viewed as a necessary incident to\nCongress\xe2\x80\x99s decision to authorize the Quasi-War with France, which fell\nwithin Congress\xe2\x80\x99s enumerated power to \xe2\x80\x9cdeclare War.\xe2\x80\x9d See NAFTA\nWithdrawal at *8\xe2\x80\x939; see also Jones v. Walker, 13 F. Cas. 1059, 1062\n(C.C.D. Va. 1793) (No. 7507) (Jay, Circuit Justice) (stating that the decision about whether a treaty of peace should be voided is committed \xe2\x80\x9cto\ncongress\xe2\x80\x9d because it is \xe2\x80\x9cnecessarily incident to the right of making war\xe2\x80\x9d);\nLetter for Edmund Pendleton from James Madison (Jan. 2, 1791), 13 The\nPapers of James Madison 342, 344 (Charles F. Hobson and Robert A.\nRutland eds., 1981) (raising \xe2\x80\x9ca question\xe2\x80\x9d about whether \xe2\x80\x9cin case the\nPresident & Senate be competent in ordinary Treaties, the Legislative\nauthority be requisite to annul a Treaty of peace, as being equipollent to a\nDeclaration of war, to which that authority alone, by our Constitution, is\ncompetent\xe2\x80\x9d); William Rawle, A View of the Constitution of the United\nStates of America 68 (Philip H. Nicklin ed., 2d ed. 1829) (\xe2\x80\x9cCongress\nalone possesses the right to declare war; and the right to qualify, alter, or\nannul a treaty being of a tendency to produce war, is an incident to the\nright of declaring war.\xe2\x80\x9d). The 1798 example thus might present a distinct\nquestion from whether Congress may otherwise regulate the President\xe2\x80\x99s\nauthority to execute the withdrawal provision of a treaty.\n\n25\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nWhatever the correct understanding of the 1798 Act, Congress has\nnever taken the same action again, and that action occurred during an era\nin which the division of authority between Congress and the President\non this issue was still \xe2\x80\x9chotly debated.\xe2\x80\x9d NAFTA Withdrawal at *7. The\nNation\xe2\x80\x99s early historical practice thus does not yield a clear or consistent\nunderstanding of the relative powers of Congress and the President. See\nid. at *7\xe2\x80\x93*9.\n2.\nApart from the 1798 Act, there are several other instances where Congress adopted a law that purported to direct the President to take steps to\nwithdraw from a treaty. In two cases, the President acted consistently with\nthe laws; in other instances, he demurred.\nIn 1883, Congress directed President Arthur to terminate portions of an\n1871 treaty with Great Britain. J. Res. No. 22 of Mar. 3, 1883, \xc2\xa7 2, 22\nStat. 641, 641 (resolving that \xe2\x80\x9cthe President be and he hereby is, directed\nto give and communicate to the Government of Her Brita[n]nic Majesty\nsuch notice of such termination\xe2\x80\x9d of articles 18 through 25 of the treaty).\nPresident Arthur\xe2\x80\x99s Administration delivered the notice, apparently without\nobjection. Letter for J.R. Lowell, Minister to the U.K., from Frederick T.\nFrelinghuysen, Secretary of State (Apr. 5, 1883), Office of the Historian,\nU.S. Dep\xe2\x80\x99t of State, Papers Relating to the Foreign Relations of the\nUnited States, https://history.state.gov/historicaldocuments/frus1883/\nd222. Similarly, in 1915, Congress enacted a statute providing that certain\n\xe2\x80\x9carticles in treaties and conventions\xe2\x80\x9d were \xe2\x80\x9cin conflict with the provisions\xe2\x80\x9d of the Seaman\xe2\x80\x99s Act, and accordingly that \xe2\x80\x9cthe President be, and he\nis hereby, requested and directed . . . to give notice . . . that . . . all such\ntreaties and conventions between the United States and foreign Governments will terminate.\xe2\x80\x9d Seaman\xe2\x80\x99s Act, ch. 153, \xc2\xa7 16, 38 Stat. 1164, 1184\n(1915). President Wilson acted consistently with Congress\xe2\x80\x99s direction. See\nCrandall \xc2\xa7 184, at 460; see also 5 Hackworth \xc2\xa7 508, at 309\xe2\x80\x9312 (reprinting\ndiplomatic correspondence on the matter).\nIn other instances, however, Presidents have raised constitutional objections to such congressional directives. In 1879, President Hayes vetoed\na bill that purported to direct him to terminate two articles of the 1868\nBurlingame Treaty with China. 8 Cong. Rec. 2275 (1879) (reprinting the\n26\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nPresident\xe2\x80\x99s message regarding the veto of \xe2\x80\x9cHouse bill No. 2423, entitled\n\xe2\x80\x98An act to restrict the immigration of Chinese to the United States\xe2\x80\x99\xe2\x80\x9d).\nPresident Hayes objected that the bill amounted to a direction by Congress to \xe2\x80\x9cmodify[] existing treaties,\xe2\x80\x9d a power he believed \xe2\x80\x9cnot lodged by\nthe Constitution in Congress, but in the President, by and with the advice\nand consent of the Senate, as shown by the concurrence of two-thirds of\nthat body.\xe2\x80\x9d Id. at 2276.17 Since President Hayes stated that \xe2\x80\x9cdenunciation\nof a part of a treaty\xe2\x80\x9d would result in \xe2\x80\x9cdenunciation of the whole treaty,\xe2\x80\x9d\nhe objected to a congressional directive that he thought would have required him to terminate the treaty in its entirety. Id.\nSimilarly, in 1920, President Wilson considered an act that directed the\nPresident to give notice that the provisions of treaties that impose \xe2\x80\x9cany\n. . . restriction on the United States [regarding certain tonnages and duties]\nwill terminate on the expiration of such periods as may be required for the\ngiving of such notice.\xe2\x80\x9d Merchant Marine Act of 1920, ch. 250, \xc2\xa7 34, 41\nStat. 988, 1007. President Wilson, citing the precedent set by President\nHayes, refused to comply on the grounds that \xe2\x80\x9cthe power of modifying an\nexisting treaty, whether by adding or striking out provisions, is a part of\nthe treaty-making power under the Constitution,\xe2\x80\x9d and \xe2\x80\x9cits exercise is not\ncompetent for Congress.\xe2\x80\x9d U.S. Dep\xe2\x80\x99t of State, Press Release (Sept. 24,\n1920), in 5 Hackworth \xc2\xa7 509, at 323\xe2\x80\x9324.\nIn 1986, over President Reagan\xe2\x80\x99s veto, Congress enacted into law the\nComprehensive Anti-Apartheid Act of 1986 (\xe2\x80\x9cCAAA\xe2\x80\x9d), which provided\nthat \xe2\x80\x9c[t]he Secretary of State shall terminate\xe2\x80\x9d an air services agreement\nwith South Africa. Pub. L. No. 99-440, \xc2\xa7 306(b)(1), 100 Stat. 1086, 1100.\nThe Secretary of State later did comply with the statute. See S. African\nAirways v. Dole, 817 F.2d 119, 121 (D.C. Cir. 1987). But at the same\n\n17 Citing the 1798 Act respecting the treaties with France, President Hayes also said\nthat \xe2\x80\x9c[t]he authority of Congress to terminate a treaty with a foreign power by expressing\nthe will of the nation no longer to adhere to it, is . . . free from controversy under our\nConstitution.\xe2\x80\x9d 8 Cong. Rec. 2276 (1879). But in context, President Hayes appears to have\nbeen referring to Congress\xe2\x80\x99s authority to annul the domestic legal effects of a treaty. See\nid. (reprinting President Hayes\xe2\x80\x99s observation that \xe2\x80\x9cthe ordinary legislation of Congress\xe2\x80\x9d\nmay have domestic effects, but that such legislation has never \xe2\x80\x9cbeen regarded as an\nabrogation, even for the moment, of [a] treaty,\xe2\x80\x9d and that, \xe2\x80\x9c[o]n the contrary, the treaty in\nsuch case still subsists between the Governments\xe2\x80\x9d); see also David Gray Adler, The\nConstitution and the Termination of Treaties 175\xe2\x80\x9376 (1986) (discussing the incident).\n\n27\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\ntime, this Office objected that it was \xe2\x80\x9cconstitutionally impermissible\xe2\x80\x9d for\nCongress to purport to require the President \xe2\x80\x9cto abrogate . . . international\ntreaties and agreements.\xe2\x80\x9d Memorandum for the Attorney General from\nDouglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Presidential Signing Statements at 3 (Oct. 10, 1986). In\naddition, President Reagan vetoed the statute in part because it contained\n\xe2\x80\x9cprovisions that infringe on the President\xe2\x80\x99s constitutional prerogative to\narticulate the foreign policy of the United States.\xe2\x80\x9d Message to the House\nof Representatives Returning Without Approval a Bill Concerning Apartheid in South Africa (Sept. 26, 1986), 2 Pub. Papers of Pres. Ronald\nReagan 1278, 1279 (1986).18\nTaken together, we do not believe that these few cases in which Congress sought to direct treaty termination are sufficient to support the\nconstitutionality of section 1234(a). The fact that Presidents in some\ninstances acted consistently with congressional directives does not establish that the directives themselves were constitutionally permissible. See,\ne.g., Myers v. United States, 272 U.S. 52, 170 (1926) (purported \xe2\x80\x9cgeneral\nacquiescence by the Executive [to] the power of Congress\xe2\x80\x9d did not render\ncongressional exercise of its power constitutional). This is especially so,\ngiven that the Executive Branch lodged contemporaneous objections to\nsome of those restrictions. See Seila Law, 140 S. Ct. at 2201\xe2\x80\x9302 (discounting the relevance of historical precedents for a constitutionally\nquestionable arrangement to which the Executive Branch had mounted\nconstitutional objections). The few examples where the President complied with the directives may further indicate nothing more than that the\nPresident agreed with those measures as a matter of policy. Moreover,\nwhatever the value of these examples, the precedents set by President\nHayes, President Wilson, and President Reagan reflect a contrary and\n\n18\n\nSome Members of Congress also acknowledged that the CAAA improperly infringed\non the President\xe2\x80\x99s exclusive authorities in foreign affairs. See 132 Cong. Rec. 27,665\n(1986) (statement of Sen. Hatch) (\xe2\x80\x9c[W]e ought to go with the President. I think we ought\nto let him conduct foreign policy. I do not think we, in our zeal to act like civil rights\nreformers in America, should intervene with that type of foreign policy.\xe2\x80\x9d); id. at 27,671\n(statement of Sen. Helms) (stating that the President \xe2\x80\x9cdeserves to be given a chance to do\nhis constitutional duty\xe2\x80\x94that is, to conduct the foreign policy of this country,\xe2\x80\x9d and that\noverriding the veto of the CAAA would \xe2\x80\x9cden[y]\xe2\x80\x9d him the chance to do so).\n\n28\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nlong-standing view that Congress lacks the authority to require the President to terminate a treaty.\n3.\nThere are also a number of occasions where Congress and the President\nacted together to terminate a treaty. In 1846, Congress authorized President Polk, at his request, to submit a notice of termination from a treaty\nwith Great Britain \xe2\x80\x9cat his discretion.\xe2\x80\x9d J. Res. No. 4 of Apr. 27, 1846,\n9 Stat. 109, 109\xe2\x80\x9310; Crandall \xc2\xa7 184, at 458.19 President Polk\xe2\x80\x99s Administration delivered the notice. See Crandall \xc2\xa7 184, at 459; see also Notice\nfor the Joint Occupancy of Oregon to Terminate, 71 Niles\xe2\x80\x99 Nat\xe2\x80\x99l Reg. 17,\n17 (1846). Although President Polk\xe2\x80\x99s Secretary of State explained to the\nU.S. ambassador to Great Britain that \xe2\x80\x9cCongress [has] spoken their will\nupon the subject in their joint resolution, and to this it is [the President\xe2\x80\x99s]\nand your duty to conform,\xe2\x80\x9d S. Doc. No. 29-489, at 15 (1846), the resolution expressly left the matter to the President\xe2\x80\x99s discretion.\nIn another case, in 1854, President Pierce announced his desire to terminate a Navigation Treaty with Denmark, and the Senate adopted a\nresolution authorizing that step. Abrogation Precedents at 55. As with\nPresident Polk, some legislators questioned whether congressional involvement was necessary. Memorandum for the Secretary of State from\nHerbert J. Hansel, Legal Adviser, U.S. Dep\xe2\x80\x99t of State, Re: President\xe2\x80\x99s\nPower to Give Notice of Termination of U.S.-ROC Mutual Defense Treaty\n(Dec. 15, 1978), reprinted in Treaties Report at 395, 404. In 1864, President Lincoln, without first seeking congressional authorization, gave\nnotice that the United States was withdrawing from a treaty concerning\narmaments on the Great Lakes. After he did so, Congress, via joint resolution, \xe2\x80\x9cratif[ied]\xe2\x80\x9d the President\xe2\x80\x99s action, although President Lincoln, without further congressional involvement, revoked the notice of withdrawal.\nSee NAFTA Withdrawal at *10\xe2\x80\x9311.\nIn 1865, Congress authorized the President to terminate the 1854 Reciprocity Treaty with Great Britain, which President Johnson subsequently did. J. Res. No. 6 of Jan. 18, 1865, 13 Stat. 566; see also 67 Cong.\n19 Three members of the House took the position that the House had no constitutional\nauthority to authorize the President to terminate this treaty. See H.R. Rep. No. 29-34, at\n1\xe2\x80\x933 (1846).\n\n29\n\n\x0c44 Op. O.L.C. __ (Sept. 22, 2020)\n\nRec. 10,424 (1926) (describing the termination of the treaty after transmission of notice by the United States). Later, when a controversy arose\nwith Great Britain about the construction of an article in an 1842 treaty,\nPresident Grant deferred to Congress on the question of whether the\narticle should be terminated, saying that it was \xe2\x80\x9cfor the wisdom of\nCongress to determine whether the Article . . . is to be any longer regarded as obligatory on the government of the United States or as forming part of the Supreme Law of the Land,\xe2\x80\x9d and that he would take no\naction without \xe2\x80\x9can expression of the wish of Congress.\xe2\x80\x9d 20 President\nGrant nonetheless suspended the operation of the treaty without obtaining congressional approval for six months before the dispute was finally\nresolved through a subsequent agreement with Great Britain. See Message to Congress (Dec. 23, 1876), 28 The Papers of Ulysses S. Grant\n100 (John Y. Simon ed., 2005); Crandall \xc2\xa7 185, at 464.\nSimilarly, in 1911, President Taft gave notice to Russia of his intent to\nterminate a commercial treaty according to its terms, and then submitted a\nresolution for \xe2\x80\x9cratification and approval\xe2\x80\x9d of his action to the Senate. 48\nCong. Rec. 453 (1911). Congress enacted a joint resolution that \xe2\x80\x9cadopted\nand ratified\xe2\x80\x9d the President\xe2\x80\x99s action. Pub. Res. No. 62-13, 37 Stat. 627\n(1911); Curtis A. Bradley, Treaty Termination and Historical Gloss, 92\nTex. L. Rev. 773, 795 (2014).\nThese examples reflect episodes, nearly all in the nineteenth century,\nwhere Presidents accepted or invited congressional involvement in treaty\ntermination. But they do not support an affirmative power of Congress to\nregulate the President\xe2\x80\x99s action over his objection. We think that the clearest lesson from history is the one that bears most directly on the constitutionality of section 1234(a): as the D.C. Circuit has observed, \xe2\x80\x9cin no\nsituation has a treaty been continued in force over the opposition of the\nPresident.\xe2\x80\x9d Goldwater, 617 F.2d at 706. Accordingly, these historical\ninstances of shared responsibility do not support the constitutionality of a\nlegislative measure that requires the President to act contrary to what is,\nin his judgment, in the best interests of the United States regarding the\nexercise of the United States\xe2\x80\x99 right to withdraw from a treaty.\n\n20 Message to Congress (June 20, 1876), in 27 The Papers of Ulysses S. Grant 147, 150\n(John Y. Simon ed., 2005); see also Crandall \xc2\xa7 185, at 463\xe2\x80\x9364.\n\n30\n\n\x0cCongressionally Mandated Waiting Period for Submitting a Notice of Withdrawal\n\nV.\nSection 1234(a) of the 2020 NDAA unconstitutionally interferes with\nthe President\xe2\x80\x99s exclusive authority to execute treaties and to conduct\ndiplomacy, a necessary incident of which is the authority to exercise the\nUnited States\xe2\x80\x99 right to withdraw from a treaty. We therefore advised that\nthe provision could not constitutionally require the Executive Branch to\ndefer providing notice of the intent to withdraw from the Open Skies\nTreaty.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n31\n\n\x0c'