Exit Through the White House: Congressional Constraints on Unilateral Presidential Withdrawal from Treaties

When does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to end treaty relationships. Yet there is limited systematic empirical investigation as to whether and how Congress has acquiesced to (or opposed) unilateral presidential withdrawal. Using data on congressional actions related to treaty withdrawal from the 1950s to 2020, this Article explores whether Congress has in fact acquiesced to unilateral presidential treaty termination. The data reveals that Congress is relatively active on the issue of treaty withdrawal, especially regarding security matters and arms control. The data shows that this behavior has varied over the last 70 years, with earlier actions focused on restraining the President’s power generally and later actions focused on issue areas like human rights abuses, terrorism, and arms control. Qualitative evidence also illustrates Congress’s use of formal legal and informal political means to influence presidential behavior in the context of treaty matters. This evidence challenges the premises of the argument that the President has unfettered authority to withdraw unilaterally. Moreover, it reveals the spectrum of strategies Congress employs to influence presidential behavior in areas of contested constitutional authority. The findings add to our understanding of the balance of powers related to treaty exit with implications for empirically assessing the extent of congressional acquiescence in other matters of presidential authority.