54 Pages Posted: 4 Jun 2020
Date Written: 2020
Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer in turn has important consequences. It means that, as a matter of U.S. domestic law, a future President can rejoin treaties without needing to return to the Senate for advice and consent. The Article concludes by situating this claim within a broader account of the distribution of foreign affairs powers.
Keywords: Foreign relations & constitutional law, separation & distribution of foreign affairs powers, treaty formation & withdrawal, advice & consent resolutions, treaty rejoining
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