Pullout from NATO in a second Trump term? The September 3 New York Times piece by @michaelcrowley was enough to trigger palpitations in any old security policy wonk. No big surprise, in truth. The President has a long history of insulting NATO countries and their leaders. His misunderstanding of how member countries contribute to Alliance goals is legendary.
What the Treaty Says About NATO Pullout
I wonkishly returned to the North Atlantic Treaty, signed in Washington in April 1949. NATO’s foundational document. As treaties normally do, this one specifies how participants (States Party in diplospeak) can withdraw. Article 13 states that, once the treaty has been in force for 20 years (it’s been a lot longer than that), a participating state may in fact withdraw. The US would have to provide a “notice of denunciation” to itself (the “depositary country”).
Pullout from NATO would not take effect immediately. That would happen one year after the official notification. I assume that, during that year, a U.S. government denunciation of the NATO treaty would meet with a tsunami of criticism, both domestically and internationally. And entreaties to pull back the denunciation. A second Trump Administration might not care, and admitting mistakes is not exactly a Trump forte. But there would be time to work on them.
Legal or Legislative Action Against a NATO Pullout?
Could the Senate, which votes on ratification of treaties, do something? Would there be legal recourse? Writing in The Yale Law Journal in November 2018, Harold Hongju Koh admits it is conventional wisdom that the President has, or at least may have, a “general unilateral power of treaty termination.” But this is incorrect, in Koh’s view. The Constitution does not address a presidential power of treaty withdrawal, and there is “no blanket power” elsewhere in the law. The key legal precedent, dating to the Carter Administration (Goldwater v. Carter), did not specify which branch of government had the power of treaty withdrawal and under what circumstances.
There is room for both the courts and the legislative branch to act in cases of treaty termination, according to Koh. He cites the mirror principle to argue that a treaty entered into with substantial legislative participation cannot be lawfully terminated by the President without similarly substantial legislative participation.
But would a presidential denunciation of the NATO treaty be put to the test in the legislative branch? A Senate with a still-Republican majority presumably would not challenge Trump. And a Democratic-majority Senate with Trump still in the White House seems unlikely, at least until the 2022 elections.
Election is Key to Avoiding
Pullout from NATO can be most reliably prevented at the ballot box on November 3. At a time of intersecting crises, foreign policy is not getting much attention in the presidential campaign. But the election outcome will have important, long-term implications for America’s place in the world. All voters should reflect on this as they make their choices.