It has been more than a week since President Trump concluded his meetings with European leaders, but Europe as a whole is still recuperating from the experience. Trump is a tornado wherever he goes, and his meetings in Brussels, London, and Helsinki were no exception to that rule. Just ask German Chancellor Angela Merkel, who was pilloried by Trump for throwing billions of dollars at Russia for access to its natural gas. Or ask British Prime Minister Theresa May, who was trying to put on her best diplomatic face for Trump during his visit to Britain despite being blasted by her American colleague in one of the country’s leading daily newspapers for her Brexit strategy.
But there was one hidden gem that largely got crowded out by the noise and optics that Trump inevitably brings. Immediately after the NATO summit, Trump suggested that he had the power to pull the U.S. out of the alliance. Asked by a reporter if he could withdraw without congressional approval, Trump replied “I think I probably can.”
To be clear: This is an extreme hypothetical. While it’s quite obvious at this point that Trump is neither enthralled of NATO like past presidents nor a traditional Atlanticist in the mood of former Secretary of State Madeleine Albright or former President Barack Obama, Trump is highly unlikely to ditch the transatlantic security alliance altogether (although, with this president, the implausible can quickly become the possible). Yet, it’s still an interesting question, in part because nobody really knows the answer.
NATO is not some random superstructure that came out of nowhere. It was established by the North Atlantic Treaty, a document the U.S. Senate ratified by a lopsided 82-13 vote. The NATO treaty is, for the purposes of U.S. domestic law, as good as a statute. Common sense would suggest that for Washington to withdraw from the alliance, Congress would be required to rescind its previous ratification of the treaty by taking a vote. This is, after all, how a statute is abolished; what Congress giveth, Congress can taketh away.
Treaties, however, are different. While the president can negotiate and make treaties, the U.S. Constitution requires Senate ratification by a two-thirds vote — a higher bar than the passage of a piece of legislation. The Constitution, though, says nothing about how treaties are rescinded or discarded. For reasons unknown, the founders left the question open.
If Trump woke up one day and decided to tweet that the U.S. will no longer be abiding by NATO’s founding treaty, it’s far from certain Congress would be able to stop it. Trump wouldn’t be the first American president to unilaterally withdraw the U.S. from a treaty; President Jimmy Carter nullified the U.S.-Taiwan defense alliance on his own, and President George W. Bush pulled Washington out of the Anti-Ballistic Missile Treaty. Both of these cases went to court, but the question was not resolved. The Supreme Court dismissed the suit against Carter, calling it an issue for the political branches to decide. The lawsuit against Bush didn’t get that far; a district court judge dismissed the complaint on similar grounds. Were Congress to slip legislative action and file a similar lawsuit against Trump on a pullout of the North Atlantic Treaty, the courts would likely throw it out as well.
So, the question remains: Is there anything Congress could do to prevent Trump from making such an unpopular move on his own, without senatorial advice and consent?
There are legislative remedies available. For one, Congress could pass a resolution of disapproval against Trump’s withdrawal (the resolution would have to pass with veto-proof majorities, as the White House would surely use its veto power). Congress could make the administration’s life miserable by grinding the president’s legislative agenda to a halt, not letting up until Trump reverses himself or suspends any U.S. departure from NATO until Congress worked its will. Congress could obstruct nominees, withhold money from important priorities (the border wall, for instance), or pass legislation that would curtail the president’s national security waiver authority on unrelated matters.
But all of these actions may be challenged by the executive branch on constitutional grounds, in which case the issue could be sent to the judiciary for a resolution. And you could bet that the complaint would eventually make its way to the Supreme Court.
Thankfully, all of this is pure speculation. The politics of NATO withdrawal would be unbearable for President Trump, and he would get a lot of heat from all corners. Sen. Thom Tillis, R-N.C., observed that a U.S. departure from NATO “would create a unifying event unlike anything you’ve seen in U.S. history in terms of actions that we can take.” He is most certainly correct: At the same time Trump was in Europe, the Senate passed a nonbinding resolution supporting NATO by a 97-2 margin, with the House doing the same unanimously.
But, in the event Trump did do the unthinkable, it’s not at all settled law that his decision wouldn’t stand. There would at least be a possibility of Trump prevailing on the merits. For proponents of NATO throughout Washington and Europe who are already biting their nails about Trump’s support to the most successful military alliance in history and having night-terrors about the U.S. not fulfilling its Article 5 obligations, this is not exactly the kind of reassuring answer they are looking for.
Daniel DePetris (@DanDePetris) is a contributor to the Washington Examiner’s Beltway Confidential blog. His opinions are his own.
