Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation

Abstract

The Anti-Ballistic Missile Treaty is back. Today, American strategic policy debate is focused on whether to construct a national missile defense that can shield the United States from nuclear attack. Looming above this controversy is the ABM Treaty, which generally prohibits both the United States and the Soviet Union from deploying a continent-wide anti-missile defense. This Essay argues that the ABM Treaty should pose no significant barrier to the construction of an NMD system, both because the President enjoys the power to interpret treaties in our constitutional system and because the disintegration of the Soviet Union has terminated the treaty.

The Essay uses new information provided by Frances Fitzgerald's book, Way Out There in the Blue: Reagan, Star Wars, and the End of the Cold War, to examine the last time the ABM Treaty stood in the way of anti-missile defense. The Essay argues that the President has greater constitutional freedom to interpret treaties than is generally recognized. Both formalist and functionalist approaches to the separation of powers in foreign affairs supports the concentration of treaty interpretation, and reinterpretation, authority in the President. Textualist and purpose-oriented approaches to interpretation further reinforce the notion that the President should enjoy substantial freedom in interpreting treaties to comport with national foreign policy goals. The Essay finds support for these conclusions in the Constitution's textual division of authority between treatymaking and lawmaking, and in the original understanding, as illustrated by the events surrounding the Neutrality Proclamation. This approach is then applied to the question whether the Soviet Union's disintegration means that the ABM Treaty no longer exists.