Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress

As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for decades, the congressional-executive agreement has received relatively little attention. It is neither clear nor well settled whether the president has the constitutional authority to withdraw unilaterally from this type of agreement. This Note proposes applying Justice Robert H. Jackson’s tripartite framework, first articulated in a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), to determine whether or not a president may constitutionally withdraw from a congressional-executive agreement without Congress’s consent. However, in certain dire emergency situations or when Congress is physically unable to convene and vote, the president should be permitted to eschew the framework and withdraw the United States from a congressional-executive agreement without waiting for Congress’s consent—so long as the president reasonably believes that withdrawal is in the country’s best interest. To support this approach, this Note also calls for a new reporting statute, similar in structure to the War Powers Resolution, to address the significant information asymmetries between the executive and legislative branches