The Law Q&A | The world of accords

The Law Q&A | The world of accords


The 45th president of the United States just announced he is having the U.S. withdraw from participating in the 2015 Iranian nuclear weapons disarmament agreement between Iran and the five permanent members of the United Nations Security Council and the European Union. How is POTUS 45 able to do this? Can he unilaterally withdraw the U.S. under American law?

What is the U.S. law regarding entering into international agreements with other sovereign nations anyway?

There are three methods under U.S. law.The first is an agreement done under treaty. A treaty is an agreement proposed by the president but brought into force by the consent of the Senate (pursuant to Article II, Section 2, Clause 2 of the U.S. Constitution). The most famous U.S. Article II treaties of the modern age are NATO and the U.N. charter.The second method is by congressional legislation. Passage by both houses specifically authorizes the president to enter into or prosecute international agreements. The most celebrated agreement under this method was the Lend Lease program during World War II. Congress authorized President Franklin Roosevelt to provide munitions and war supplies to various nations in their war against the Axis powers.

The third method is an agreement made by the president through his/her executive power. The Iranian nuclear deal is of this category.

The president's executive power is derived from the power as head of state to represent the nation in foreign affairs; the power as commander-in-chief of the armed forces; a prior act of Congress; or a prior treaty.

The North American Free Trade Agreement is a sticky hybrid of the second and third methods — congressional legislation over an agreement originally entered into by the president.

The U.S. Supreme Court has upheld as constitutional the congressional action and/or the presidential agreements even though the Constitution is silent as to any method aside from Senate consent in Article II. In the 50 years immediately after the end of WWII, well fewer than 10 percent of U.S. international accords have been Article II treaties. The majority have been by legislative authority.

International accords entered into by the U.S. under one of the above methods become part of U.S. federal law. Congress can modify or repeal U.S. treaties by subsequent legislative action, even if it amounts to a violation of the treaty with its international partners.

So too, any international accord inconsistent with the U.S. Constitution is void under domestic American law.

At present, no U.S. Supreme Court ruling has been made on whether a president has power to breach or withdraw from an Article II treaty without the approval of Congress.

The advantage to a president using his executive authority alone is the ability and flexibility to enter into agreements without requiring congressional assent. The fly in the buttermilk, however, is that a succeeding president can just as easily withdraw from the agreement.So it is with POTUS 45 reversing the commitment made by the Obama administration. This means POTUS 45 can start reimposing economic sanctions upon Iran without regard to the terms of the nuclear accord. Speculation is that this will cause Iran to fully re-engage in nuclear weaponization.POTUS 45 has sown the wind.

The world may reap a whirlwind.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.