Opinion concurring in the result, in which Circuit Judge TAMM joins, filed by Chief Judge WRIGHT.

Opinion dissenting in part and concurring in part filed by Circuit Judge MacKINNON.

The court en banc has before it for review the judgment of the District Court that the notice of termination given by the President pursuant to the terms of the Mutual Defense Treaty with the Republic of China is ineffective absent either (1) a manifestation of the consent of the Senate to such termination by a two-thirds vote or (2) an approving majority vote therefor by both houses of Congress. The preliminary questions we confront are, first, whether the District Court was without jurisdiction because appellees lacked standing, and, second, whether it should in any event have declined to exercise jurisdiction by reason of the political nature of the question it was called upon to decide. Since a majority of the court does not exist to dispose of the appeal on either of these bases,1 we reach the merits and reverse.2

In doing so, however, we think it important at the outset to stress that the Treaty, as it was presented to the Senate in 1954 and consented to by it, contained an explicit provision for termination by either party on one year's notice. The Senate, in the course of giving its consent, exhibited no purpose and took no action to reserve a role for itself by amendment, reservation, or condition in the effectuation of this provision. Neither has the Senate, since the giving of the notice of termination, purported to take any final or decisive action with respect to it, either by way of approval or disapproval. The constitutional issue we face, therefore, is solely and simply the one of whether the President in these precise circumstances is, on behalf of the United States, empowered to terminate the Treaty in accordance with its terms. It is our view that he is, and that the limitations which the District Court purported to place on his action in this regard have no foundation in the Constitution.

While under the termination clause of this and similar treaties the power of the President to terminate may appear theoretically absolute, to think that this is so would be to ignore all historical practices in treaty termination and past and current reciprocal relationships between the Chief Executive and Congress. The wide variety of roles played by the Executive and the Congress (or the Senate alone) in the past termination of treaties teaches us nothing conclusive as to constitutional theory, but it instructs us as to what may fairly be contemplated as to the President's future exercise of the treaty termination power. Treaty termination is a political act, but political acts are not customarily taken without political support. Even if formal advice and consent is not constitutionally required as a prerequisite to termination, it might be sought. If the Congress is completely ignored, it has its arsenal of weapons, as previous Chief Executives have on occasion been sharply reminded.

Thus, the court is not to be taken as minimizing the role of the legislature in foreign affairs. The legislature's powers, including prominently its dominant status in the provision of funds, and its authority to investigate the Executive's functioning, establish authority for appropriate legislative participation in foreign affairs. The question of whether the Senate may be able to reserve to itself in particular treaties, at the time of their original submission, a specific role in their termination is not presented by the record in this appeal and we decide nothing with respect to it. The matter before us is solely one of whether the Constitution nullifies the procedure followed by the President in this instance. We find the President did not exceed his authority when he took action to withdraw from the ROC treaty, by giving notice under Article X of the Treaty, without the consent of the Senate or other legislative concurrences.

In our holding in this case we do not ignore the question of justiciability. We regard the only issue here to be whether the constitutional allocation of governmental power between two branches requires prior legislative consent to the termination of this treaty under the circumstances presented by this record. Viewing the issue before us so narrowly and in the circumstances of this treaty and its history to date, we see no reason which we could in good conscience invoke to refrain from judgment, and conclude that it is the duty of the court to confront and decide that issue.

WRIGHT, Chief Judge, with whom TAMM, Circuit Judge, joins, concurring in the result:

We agree that the judgment and opinion of the District Court must be vacated and that appellees' complaint must be dismissed. Because we believe the appellees lack standing, we reach no other issue.

Appellees are nine Senators and sixteen members of the House of Representatives. They assert that the President's unilateral termination of this country's Mutual Defense Treaty with the Republic of China is illegal, and that they have standing to litigate this issue because the President's action personally injured them in fact by depriving them of their right to vote for or against termination.

* Both Article III of the Constitution and the demands of prudent judicial administration bar lawsuits by parties who are only generally and indistinguishably offended by alleged illegal acts of government. The proper redress for such offenses is political, not judicial. The courts' role begins only where a party alleges " 'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (emphasis in original).

The essence of the claim in this case is that unless the federal courts intervene the President will terminate the Mutual Defense Treaty in a manner that violates the constitutional restrictions on his powers. All Americans have a stake in seeing that their leaders act according to the constitu tional scheme. The question here is whether these plaintiff-appellees have a specific personal stake in the outcome of the case.

Appellees gain no particular stake simply by being members of Congress. This court has made clear that a legislator "receives no special consideration in the standing inquiry." Reuss v. Balles, 189 U.S.App.D.C. 303, 308, 584 F.2d 461, 466 (D.C.Cir.), cert. denied, 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978). The interests of an elected representative do not necessarily differ from those of his constituents. In fact, courts could logically afford legislators even less consideration on standing than they afford other citizens, since the legislator's position gives him special access to the political process through which general constitutional grievances should find redress. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-227, 94 S. Ct. 2945, 41 L. Ed. 2d 706 (1974). Thus, to sustain their lawsuit plaintiff senators and congressmen must demonstrate a "distinct and palpable injury" to themselves. See Warth v. Seldin, supra, 422 U.S. at 501, 95 S. Ct. 2197.

Although the courts have fashioned various verbal formulas to describe the Article III jurisdictional requirement of case or controversy, the core concern has remained single and unquestioned: that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968). The verbal formulas help in focusing on the practical question underlying the general principle the question of the nature and circumstances of the specific injury alleged. Thus, the plaintiff must show an "injury in fact," Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S. at 227 n.16, 94 S. Ct. 2945, that "fairly can be traced to the challenged action of the defendant," and not to "the independent action of some third party not before the court," Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 1926, 48 L. Ed. 2d 450 (1976), and that is "likely to be redressed by a favorable decision." Id. at 38, 96 S.Ct. at 1924. However many "prongs" comprise the test, the question is specific and factual: Has the plaintiff identified the proper defendant, the adversary who has dealt him distinct injury?

In addressing that practical question in this case, we must accept as true the material allegations of the complaint. Warth v. Seldin, supra, 422 U.S. at 501, 95 S. Ct. 2197. We therefore assume as a matter of constitutional law that President Carter was required to obtain consent from either two-thirds of the Senate or a majority of both Houses before giving notice of termination of the Treaty.1 The most distinct injury alleged is that the President has prevented the appellees from voting on treaty termination.2

The question of standing where a legislator claims injury to his lawmaking role is not new to this court. Although there are "no special standards to be employed in analyzing legislator standing questions," Reuss v. Balles, supra, 189 U.S.App.D.C. at 307, 584 F.2d at 465, we have developed a strict approach to evaluating the unique type of injury that arises when a legislator challenges Executive action. Along with the other circuits that have faced the issue,3 we have required congressional complainants to allege a precise injury. The only case in which we have actually held that an individual legislator had standing to contest Executive action4 illustrates the nature of the requisite injury.

In Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (D.C.Cir.1974), a senator sought to challenge the President's pocket veto of a bill passed by overwhelming majorities of both Houses. We granted Senator Kennedy standing on the theory that the President's action impaired Congress' role in the constitutional scheme of lawmaking, and thus indirectly impaired the effectiveness of the Senator's individual vote. Under the paradigm of injury emerging from Kennedy, if the legislature manifests its will through final legislative action, and if the Executive nullifies the effect of that legislative action, a legislator whose vote contributed to the legislative action will have standing. The injury derives from the injury to the legislature, and becomes personal to the individual congressman-plaintiff.

We decided Kennedy before the recent Supreme Court decisions that have considerably tightened standing requirements. E. g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Simon v. Eastern Ky. Welfare Rights Org., supra; Warth v. Seldin, supra. In the light of these cases, we have held that Kennedy does not confer standing where a legislator claims injury to his general effectiveness as a lawmaker as he subjectively perceives it, Harrington v. Bush, 180 U.S.App.D.C. 45, 66-69, 553 F.2d 190, 211-213 (D.C.Cir.1977); Metcalf v. Nat'l Petroleum Council, 180 U.S.App.D.C. 31, 40-41, 553 F.2d 176, 185-186 (D.C.Cir.1977), or even where a legislator claims the Executive has injured the effectiveness of a particular past vote by failing to properly administer the specific legislation as enacted. Harrington v. Bush, supra, 180 U.S.App.D.C. at 69-70, 553 F.2d at 213-214. Most to the point here, we have declined the occasion to confer standing where a legislator alleges injury to an opportunity to cast a specific future vote. See id. at 66, 553 F.2d at 211; Reuss v. Balles, supra, 189 U.S.App.D.C. at 308-310, 584 F.2d at 466-468. We have required the plaintiff legislator to show that the challenged Executive action has nullified a vote already taken by preventing it from ever taking its intended legal effect.5

The Supreme Court's pronouncements on standing compel this view. As we have noted, where a legislator alleges Executive impairment of the effectiveness of his vote, his injury can only be derivative. He cannot suffer injury in fact unless Congress has suffered injury in fact. Congress suffers no injury unless the Executive has thwarted its will; and there is no such will to thwart unless a majority of Congress has spoken unequivocally.6 Unless Congress has taken all final action in its power to exercise its constitutional prerogative, any injury an individual legislator suffers may find its source not in the President, but in his colleagues in Congress. Where Congress itself, and not the Executive, renders an individual legislator's vote ineffective, the courts have no role.7 Harrington v. Bush, supra, 180 U.S.App.D.C. at 69, 553 F.2d at 214; Holtzman v. Schlesinger, 484 F.2d 1307, 1311 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974).

In this case, neither House has ever taken final action to voice disapproval of the termination of the Treaty. In holding that appellees had standing, the District Court accepted their argument that congressional action on the termination effectively amounted to a confrontation with the President. The majority now asserts that Congress has done all it can practically do short of obtaining judicial relief to prevent the President from unilaterally terminating the Treaty. But the actual sequence of events in Congress belies these positions. As we demonstrate below, Congress was well aware of strong legislative measures within its means for expressing disapproval of the termination. It simply did not take those measures.

Appellees point to, and the District Court relied on, such congressional actions as the Dole-Stone amendment and the vote to restore the original language drafted by Senator Harry Byrd, Jr. as Senate Resolution 15. Only the Byrd amendment has even the pretense of being final legislative action disapproving the termination of this particular treaty.8 Yet Senator Harry Byrd, Jr. stated himself that the resolution would have no binding legal effect on the President and that it was meant to express neither approval nor disapproval of the President's actions.9 Whether the resolution would have been prospective or retrospective in effect remains in doubt. Ten pages of the Congressional Record of June 6 are devoted to a discussion among the Senators about what effect the Byrd resolution as written would have.10 Senator Church and, on the next day of discussion, Senator Goldwater introduced conflicting amendments11 to clarify the resolution. But the Senate adjourned without deciding which version to adopt.12

Moreover, whatever the potential effect of the resolution, the Senate never actually voted to approve it. As a matter of textbook parliamentary procedure, the vote on which the District Court so heavily relied in reversing itself on standing was simply an interim procedural vote to choose the language of the resolution to be voted on. Even those Senators who had voted for the Byrd amendment remained free to vote against the resolution in any final action. Indeed, it was to give the Senators an opportunity to reflect on the consequences of their action that the resolution was taken from the floor.13

Consideration of the resolution ended when Senator Goldwater and his colleagues failed to agree on legislative language for the Senate to vote on.14 On the Senate floor on November 15, Senator Robert Byrd, the Majority Leader, expressed his desire for an "up-and-down vote" on the issue,15 but after extensive discussion proved inconclusive, he proceeded to other business. The question of Senate Resolution 15 has never returned to the floor. Thus the President himself has not nullified the effect of any vote appellees have actually cast,16 nor has he thwarted the will of Congress in the special sense our cases demand. Congress has not suffered the requisite injury, and so neither have appellees.17 Any harm they have suffered can be "fairly traced" to their minority position in the legislature, and to the vagaries of politics. Surely courts cannot be expected to manage the calendar of the United States Senate.

Congress as a body has chosen not to confront the President directly on the treaty termination. Denied that confrontation by political reality, appellees now turn to this court. But as we have said, relief for political injury must be political, and the opportunities for relief have been ample. Appellees have always had the legal, if not the political, power to obtain passage of a bill directing the President to cancel notice of termination of the Treaty, or at least declaring Congress' belief that the Treaty remained in effect absent legislative approval of its termination.18 Had appellees done so, we might have been presented with a different case. To be sure, under standing doctrine the availability of remedies outside the courts does not of itself preclude jurisdiction, where the plaintiff has shown sufficient injury. Metcalf v. Nat'l Petroleum Council, supra, 180 U.S.App.D.C. at 44 n.29, 553 F.2d at 189 n.29.19 But in this case appellees' apparent political inability to "exhaust" their legislative remedies rebuts their very allegation of judicially cognizable injury, as well as its source in the President's actions.

Article III of the Constitution permits federal courts to hear only cases in which the adversariness of the parties creates a sharpened factual controversy. This is, of course, the root of the standing doctrine. But the standing doctrine also includes a principle of "judicial self-governance," without which the courts would end up deciding "abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth v. Seldin, supra, 422 U.S. at 500, 95 S. Ct. at 2206. This second, prudential, aspect of the standing doctrine is especially significant in this case.

The issue here is whether or in what manner Congress and the President share the power to terminate treaties. For over 200 years, through bargaining, compromise, and accommodation, these popularly elected branches of our government have in fact shared the task, without the help or need of the courts. There has never been a single, settled method of termination. 5 G. Hackworth, Digest of International Law 330 (1943). Plaintiffs and defendants here have offered competing interpretations of how the long sequence of treaty terminations in our history was accomplished.20 Whether or not the historical record supports either party's substantive constitutional argument and we express no views on this it does show that when Congress wants to participate directly in a treaty termination it can find the means to do so. Thus Congress had initiated the termination of treaties by directing or requiring the President to give notice of termination, without any prior presidential request.21 Congress has annulled treaties without any presidential notice.22 It has conferred on the President the power to terminate a particular treaty,23 and it has enacted statutes practically nullifying the domestic effects of a treaty and thus caused the President to carry out termination.24 If Congress can do this, it can pass a resolution objecting to termination of a treaty if it wishes to do so. A President is likely to pay heed to such disapproval, in which event no court need intervene.25

Moreover, Congress has a variety of powerful tools for influencing foreign policy decisions that bear on treaty matters. Under Article I, Section 8 of the Constitution, it can regulate commerce with foreign nations, raise and support armies, and declare war. It has power over the appointment of ambassadors and the funding of embassies and consulates. Congress thus retains a strong influence over the President's conduct in treaty matters.

As our political history demonstrates, treaty creation and termination are complex phenomena rooted in the dynamic relationship between the two political branches of our government. We thus should decline the invitation to set in concrete a particular constitutionally acceptable arrangement by which the President and Congress are to share treaty termination. This principle of prudence especially counsels against judicial intervention in a case like this, where Congress has taken no final action to make known its views on the termination of a particular treaty. Were a President to attempt to unilaterally break a treaty vital to the interests of the nation, without sound reason and against the wishes of the great majority of citizens, congressional representatives, by any means they have already used or by those they may yet design, can ensure that the voice of that majority reaches the President.

Managing the foreign relations of a great nation is an intensely political undertaking calling for the greatest skills and the exercise of the most informed judgments, for the stakes are high. It is an area in which judges have no special competence or experience. Unless a case or controversy fully satisfying the constitutional command is presented for adjudication, a court should stay its hand. Since the constitutional command is not satisfied in this case, in our judgment it is appropriate that the court dismiss it without more. We would do so. To come to the same result after a journey through an uncharted judicial wilderness, dropping hints or attempting to set in concrete how future foreign relations cases might be decided, invites additional unnecessary, and potentially dangerous, judicial incursions into the area.

MacKINNON, Circuit Judge, dissenting in part and concurring in part.

I concur in the decision of a majority of my colleagues that the Senators and Representatives who are the plaintiffs in this action possess standing to have their grievance decided by this court, and that the question raised is not a "political" one that we should decline to adjudicate. We are not deciding a political question, but merely determining the procedure to be followed under the Constitution for the termination of a treaty. I disagree, however, with the majority's conclusion on the merits that the Constitution confers the absolute power on the President, acting alone, to terminate this Mutual Defense Treaty. No prior President has ever claimed the absolute power to terminate such a treaty.

The majority in effect holds that the President has the absolute power to terminate this treaty but their decision indicates it is not to be considered as a binding precedent that future Presidents could terminate treaties in similar circumstances. This advance attempt to minimize its harmful effect for the future is accomplished by stating that the opinion is "narrow" and could not necessarily be relied upon to confer the same absolute power to terminate the NATO treaty, which has a similar termination provision. Maj. op., p. --- of 199 U.S.App.D.C., p. 707 of 617 F.2d. History will not deal kindly with such an obviously expedient decision.

My interpretation is based on the admitted fact that the termination of treaties is not one of the enumerated powers of the Constitution. Rather it is an implied power vested in the government. As such, under the "Necessary and Proper" clause of Article I, Section 8, which the majority decision avoids like the plague, power is conferred upon "(t)he Congress " to pass a law to terminate treaties. Since the Constitution makes treaties along with other laws the "Law of the Land", Article II, Section 2, a treaty is to be terminated in the same manner as any other "law" by a formal act of Congress approved by the President. The language of the Constitution, its interpretation by the Framers, and historical precedent overwhelmingly support such a conclusion.

This is thus not a case where, as the President contends: "(t)here are no judicially discoverable and manageable standards for determining the extent of constitutionally required legislative participation in treaty termination." Appellant's Brief, p. 14. The judicial standards are easily discoverable in the Constitution.*

I The Enumerated Powers of the Constitution and the Power to Terminate Treaties.

The Constitution of the United States establishes a government of three departments, each with enumerated powers. One of the enumerated powers vested in the President is the power to "make Treaties, . . . provided two thirds of the Senators present concur . . ." Art. II, Section 2.1 (Emphasis added). "Treaties" so made and ratified, together with the Constitution and laws of the United States, become "the supreme Law of the Land . . ." Art. VI (Emphasis added).2 While the power to "make treaties" is a constitutionally enumerated power, the power to repeal or terminate treaties is not one of the enumerated powers. Yet it is manifest that the termination of treaties is frequently necessary. It must thus be recognized that the power to terminate treaties is one of the implied powers that the Constitution implicitly vested in the Government when it provided for the "making" of treaties. The facts here present another case involving the power of Congress to legislate under the Necessary and Proper clause, as in Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 20, 6 L. Ed. 253 (1825), where Chief Justice Marshall said: (it) "seems to be one of those plain propositions which reasoning cannot make plainer. The terms of the clause neither require nor admit of elucidation . . . ." Later, Justice Harlan in Neely v. Henkel, 180 U.S., 120, 21 S. Ct. 302, 45 L. Ed. 457 (1901), which held for a unanimous court that the necessary and proper clause applied to the treaty power and treaties executed thereunder, said:The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.

180 U.S. at 121, 21 S. Ct. at 306 (Emphasis added). This clearly recognizes the power of Congress to enact legislation pursuant to the termination clause that President Eisenhower had inserted in the Taiwan Treaty. Missouri v. Holland, 252 U.S. 416, 432, 49 S. Ct. 382, 64 L. Ed. 641 (1920) also squarely holds that the necessary and proper clause applies to treaty provisions.

It is thus submitted that since the exercise of the power to terminate treaties, which have the status of law of the land, requires passage of a repealing law, it is Congress' responsibility under the Necessary and Proper Clause to do so. In Article I, Section 8, the Clause provides:

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing (enumerated) Powers, and all other (implied) Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Emphasis added).

When Congress passes an act terminating a treaty, it makes a law, as is illustrated by the Act of July 7, 1798,3 the first instance of treaty termination by the United States.

It is significant that Thomas Jefferson interpreted the Constitution as placing the power to terminate treaties in Congress and so declared in his "Manual," which as a guide for Congressional procedure persists to this day:

Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.

Jefferson's Manual, Rules and Practices, House of Representatives, 96th Congress, § 599, at 274 (1979). (Emphasis added).

To the same effect is a statement by Lewis Deschler, who was probably the greatest House Parliamentarian and served from 1928 to 1974, in his eminent work on congressional parliamentary procedure. In outlining the functions of joint resolutions his Procedure states:

"(Joint resolutions) are sometimes used for what may be called incidental legislation, such as extending the national thanks to individuals, welcoming dignitaries, notice to a foreign government of the abrogation of a treaty, declarations of military policy, and correction of errors in an existing law.

Deschler's Procedure, Ch. 24 § 2, at 246 (1974) (Emphasis added).

On April 20, 1846 Speaker Davis ruled, with respect to the abrogation of the Oregon Treaty, that notice thereof to a foreign government was authorized by joint resolution. V Hind's Precedents § 6270 (1907).

In 1829 Chief Justice Marshall interpreted Article II, Section 2 of the Constitution as having the following effect:

"Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice, as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision."

Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-15, 7 L. Ed. 415 (1829) (Emphasis added), overruled on other grounds, United States v. Percheman, 7 Pet. (32 U.S.) 51, 89, 8 L. Ed. 604 (1833).

These interpretations and our historical practice, hereinafter set forth, consider treaties and statutes to be of equal dignity. It is the Supremacy Clause that directs this result because of the necessity that treaties be supreme over state laws the same as Acts of Congress. Hence, the Constitution, acts of Congress and treaties are the "supreme law of the land".

The authority of the landmark decision by Chief Justice Marshall in Foster has never been questioned. It is fully consistent with Foster and the other reasons discussed herein, to recognize a treaty as requiring a Congressional enactment for its termination.

II Historical Considerations: Contemporaneous Construction of the Treaty Power

All parties to this case agree that the express language of the Constitution leaves open the question whether either governmental branch possesses unilateral power to terminate a treaty. Referring to another such constitutional gap, Chief Judge Marshall recognized in McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L. Ed. 579 (1819), that a "principle . . . introduced at a very early period of our history" (as was the Act of Congress terminating the French Treaties by 1 Stat. 578 (1798)) (and) "deliberately established by legislative acts . . . ought not to be lightly disregarded." 4 Wheat. at 400, 4 L. Ed. 579.

The Supreme Court has also stated that when acts are "passed shortly after the organization of the government under the Constitution (when) (a)mong the members of that Congress were many who had participated in the convention which framed the Constitution, . . . the act has always been considered, in relation to that instrument, as a contemporaneous exposition of the highest authority." Patton v. U. S., 281 U.S. 276, 300-301, 50 S. Ct. 253, 259, 74 L. Ed. 854 (1930).4 More recently, Powell v. McCormack, 395 U.S. 486, 547, 89 S. Ct. 1944, 1977, 23 L. Ed. 2d 491 (1960) stated that precedential value in illustrating the Framers' intent "(obviously) tends to increase in proportion to (the case's) proximity to the Convention of 1787".

In summary, "where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight". McPherson v. Blacker, 146 U.S. 1, 27, 13 S. Ct. 3, 7 L. Ed. 869 (1892); Myers v. U. S., 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926) is to the same effect.5 This prompts a review of the debates of the constitutional convention, the ratification debates and contemporaneous interpretation of the Constitution. It is from such sources that the most valid construction of the constitutional intent can be gleaned.

Although the Constitution itself is silent on the issue of power to terminate treaties, the congressional role can be inferred from the responsibility granted to Congress in making treaties by the Articles of Confederation, and an early draft of the Constitution. Article IX of the Articles of Confederation placed in "(t)he United States in Congress assembled" the power to enter into treaties. The Framers' vision of a balance of power within our system of government then underwent considerable revision between Nov. 15, 1777, when the Articles of Confederation were ratified, and September 17, 1787, when the Constitution was signed.

In the months prior to the signing, at the Federal Convention, there was extensive discussion concerning proper allocation of the power to make treaties. The August 6, 1787 report of the Committee of Detail to the Constitutional Convention provided in Article IX that "(t)he Senate of the United States shall have the power to make treaties".6 On August 23, when Article IX was under consideration, James Madison observed "that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in treaties."7 (emphasis added). On September 7th and 8th, the Convention debated the clause requiring two-thirds Senate concurrence, some members favoring a requirement of Senate majority approval, and some favoring deletion of the President from the making of peace treaties.8 The Convention also considered adding the House of Representatives to the treaty making power, "(a)s treaties are to have the operation of laws, they ought to have the sanction of laws also."9 (Emphasis added) But the amendment to have the House participate in the "making" of treaties was defeated and power to advise and concur lodged solely in the Senate branch of the legislature because "(t)he necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature".10 Since secrecy is less necessary in terminating treaties it provides no basis for omitting the House from the termination process. The majority suggests that this would interfere with a necessity to act "quickly", but treaties and their termination are not a thing of the moment, as the instant case proves.

The Constitution, as adopted after such discussion, granted to the President the power to make treaties, with the advice and consent of the Senate, provided that two-thirds of that body concur. Alexander Hamilton, in the Federalist, emphasized that this unique scheme created a power that was to be jointly held.

The power in question seems, therefore, to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States.11

The Federalist, No. 75, of March 26, 1788. (Emphasis added).

James Wilson, one of the most influential members of the Federal Convention, in urging the ratification of the Constitution before the Pennsylvania Convention on Dec. 11, 1787, noted that a shared power would be a safe power.

The President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.12

These statements indicate that while the debate concerning proper placement of the treaty power was thorough and varied, there was never any question about the Senate's integral role in the process of making treaties. Although the power to initiate treaty making was finally lodged by the Constitution in the Presidency, the Senate's participation in concluding binding treaty obligations was made indispensable.

Statements of the Framers of the Constitution, and the early case law, indicate that the Legislature's participation in terminating a treaty was not only considered to be equally indispensable, but logical as well. When he was Vice President, Thomas Jefferson wrote:

Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . . Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded.

Jefferson's Manual, supra. This same thought is set forth above.

Although no court has directly addressed the issue of the constitutionality of a unilateral Presidential treaty termination, several courts have addressed the issue tangentially. In Ware v. Hylton, 3 Dallas (3 U.S.) 199, 260, 1 L. Ed. 568 (1796), Justice Iredell13 was asked to find that a treaty with Great Britain had been breached by that party and was therefore unenforceable against U.S. citizens. Justice Iredell declined to hold that the treaty was vacated, stating that this decision "must be grounded on the solemn declaration of congress alone (to whom, I conceive, the authority is intrusted)". This could only be grounded on the necessary and proper clause and Congressional power to legislate.

In the Amiable Isabella, 6 Wheat. (19 U.S.) 1, 75, 5 L. Ed. 191 (1821), the Supreme Court through Justice Story said:

(T)he obligations of the treaty could not be changed or varied but by the same formalities with which they were introduced; or at least by some act of as high an import, and of as unequivocal an authority.

While this statement leans toward Senate participation in treaty termination, it does not rule out termination by Congressional act. It does, however, completely rule out all authority of the President to terminate a treaty alone.

Treaties are not supreme over acts of Congress but by the Constitution are made of like obligation as an act of legislation. Whitney v. Robertson, 124 U.S. 190, 195, 8 S. Ct. 456, 459, 31 L. Ed. 386 (1888): ("(s)o far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal." (Emphasis added)); Boudinot v. U. S. (Cherokee Tobacco), 11 Wall. (78 U.S.) 616, 620-621, 20 L. Ed. 227 (1870) ("A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.")14

By giving treaties the status of supreme law of the land, equivalent to acts of Congress,15 the Framers rectified one of the weaknesses of the Articles of Confederation.16 Although Congress had been delegated the treaty making power by that instrument, Congress had to depend upon the ratification and cooperation of state legislatures, which was not always forthcoming.

The equivalence of statutes and treaties as law of the land is of tremendous importance to this case. Because the Constitution makes treaties the law of the land, courts have consistently held that Congress has the right to amend or repeal treaties, as it has the power to amend or repeal statutes. An 1854 Opinion of the Attorney General, 6 Ops.Atty.Gen. 291, recognized Congressional power to repeal treaties by act of Congress, and was followed by judicial concurrence. Taylor v. Morton, 23 Fed.Cas.P. 784, No. 13,799 (C.C.D.Mass.1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 20 L. Ed. 227 (1871); United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496, 2 S. Ct. 906, 27 L. Ed. 803 (1883); The Chinese Exclusion Case, 130 U.S. 581, 600, 9 S. Ct. 623, 32 L. Ed. 1068 (1889); Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct. 456, 31 L. Ed. 386 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721, 13 S. Ct. 1016, 37 L. Ed. 905 (1893). "Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate." La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460, 20 S. Ct. 168, 181, 44 L. Ed. 223 (1899).

In Van Der Wyde v. Ocean Transport Co., 297 U.S. 114, 56 S. Ct. 392, 80 L. Ed. 515 (1935), the Supreme Court upheld the constitutionality of treaty termination procedure whereby Congress "requested and directed" the President, by its Seamen's Act of March 4, 1915, to give notice of the termination of treaty provisions inconsistent with the Act. The Supreme Court held: "From every point of view, it was incumbent upon the President, charged with the conduct of negotiations with foreign governments and also with the duty to take care that the laws of the United States are faithfully executed, to reach a conclusion as to the inconsistency between the provisions of the treaty and the provisions of the new law." 297 U.S. at 118, 56 S.Ct. at 394.

In the years since the passage of the Constitution, the Framers' understanding that treaty termination was to be a shared power has been more than merely voiced, it has been the consistent practice. The following sections illustrate this pervasive Congressional participation in treaty terminations, and prove groundless the President's claimed instances of unilateral termination.

III The Historical Practice of Treaty Termination

The President's review of the historical practice of treaty termination stands in direct conflict with that of Appellees. The President's brief asserts:

There have been 26 instances of treaty termination actions taken by the President, App. 405-39, 683-98. In 13 of those instances the President acted without the participation of Congress . . . 11 of the 13 cases of presidential termination have occurred since the end of World War I.

Even accepting this statement as a correct description of the historical practice, on its face it admits that there have been 13 instances where the President acted with the participation of Congress. Appellees' position, however, as expressed in the sworn declaration of J. Terry Emerson, which is part of the record of this case, claims many more instances of Congressional participation in treaty termination:

3. I have identified at least 52 separate treaties or provisions thereof which have been terminated with legislative authority. Four of these 52 have been terminated with legislative approval granted after Presidential request was made for such authority through the mechanism of the Presidential Message . . . The remaining 48 have been terminated with legislative authority in the manner (indicated in the declaration).

Filed October 9, 1979 in Civil Action No. 78-2412. The declaration then sets forth numerous instances in which Congress terminated or authorized the termination of treaties.

Argument can arise over the exact number of such instances because some Congressional resolutions authorized or directed the termination of several treaties. Hence, I will not attempt to calculate the exact number of treaties in which the Congress participated. It is worthy of note, however, that Judge Gasch, in the District Court, concluded that the "great majority of the historical precedents involve some form of mutual action." District Court Order and Memorandum of October 18, 1979, Appendix 866, 885. My review of treaties terminated by this country bears out Judge Gasch's conclusion and convinces me that Congressional participation in termination has been the overwhelming historical practice. Practice may not make perfect a constitutional power. Yet a prevailing practice, especially when begun in the light provided by the dawn of the Constitution, emanates a precedential aura of constitutional significance. The prevailing practice in treaty termination during the era of the Framers of the Constitution, and in the generations thereafter, was the product of the Framers' conception of a balanced federal government, as expressed specifically in the sharing of the treaty power among the legislative and executive branches.

The first treaty terminated by the United States was abrogated by an Act of Congress of July 7, 1798, 1 Stat. 578. By this act, entitled "An Act to Declare the Treaties Heretofore Concluded with France No Longer Obligatory on the United States", Congress pronounced the United States freed and exonerated from Treaties of 1778 with France. As this act occurred just slightly less than ten years after ratification of the Constitution on September 13, 1788, it can be viewed as a reasonably contemporaneous construction that treaty termination was a legislative act. The act is set forth in its entirety in note 3, supra.

The next instance of treaty termination occurred in 1846, when President Polk specifically requested that Congress legislatively approve his authority to give notice under the terms of the Oregon Territory Treaty with Great Britain.17 By Joint Resolution of April 27, 1846, Congress then authorized the President to notify the British Government of the abrogation of the Convention of August 6, 1827.18

I will not analyze the circumstances of each treaty termination. Instead I have set forth in footnote 19 a significant part of the title of the relevant resolutions or the body thereof, to make clear that in those instances, Congressional action effectively terminated, or was the cause of terminating, the treaty or treaties in question.19

It should be emphasized here, however, that President Polk was not alone among Presidents in his recognition of Congress' role in treaty termination. President Grant in a message to Congress on June 20, 1876, inquired whether he should regard the extradition article of the British Treaty of 1842 as void on "account of certain acts of the British government." His message said "it is for the wisdom of Congress to determine whether the article of the treaty relating to extradition is to be any longer regarded as obligatory on the Government of the United States or as forming part of the supreme law of the land." He went on to point out that if the attitude of the British Government did not change, he would not extradite any person "without an expression of the wish of Congress." 9 J. Richardson, Messages and Papers of the Presidents 4324, 4327 (Washington; 1897).

With respect to the Treaty of 1868 with China, Congress in 1879 passed a resolution requiring President Hayes to abrogate Articles V and VI of the Treaty. The President vetoed the Resolution (as is his right) on the ground that "modifying an existing treaty whether by adding or striking out provisions is a part of the treaty-making power under the Constitution." In the same message he admitted "the authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress but in the President by and with the advice and consent of the Senate." Id. 4466, 4470-71. (Emphasis added).B. The President's Claim of Absolute Power to Terminate Treaties.

The President contends: "Past Practice of Treaty Termination confirms the President's Power to Act Alone", Appellant's Br. 53. This claim of sole Presidential power is not supported by the examples set forth above. In support of his contention, however, he makes as his principal argument that "(i)n 13 of those (26) instances (of treaty terminations), the President acted without the participation of Congress . . ." Appellant's Br. 54-55. (Emphasis added).

Let us look at the record. Analysis of these 13 instances undermines the President's claim that he has the absolute power to terminate treaties alone. All except one of the 13 following instances are also discussed and supported with record citations in, "The Abuse of History: A Refutation of the State Department Analysis of Alleged Instances of Independent Presidential Treaty Termination", by Jonathan York Thomas, (hereafter Thomas), a law review article to be published in 6 Yale Studies in World Public Order (Fall 1979).

(1) The Netherlands Treaty of 1782 In 1815, President Madison exchanged correspondence with the Netherlands, which has been construed by the United States as establishing that the 1782 Treaty of Amity and Commerce between the two countries had been annulled.

The government of the "Netherlands" that entered into the Treaty of 1782 went out of existence. From 1795 to 1813 it was succeeded by several other governments, one of which was subsequently incorporated into the French Empire of Napoleon. Thus, the unsettled conditions in Europe had effectively annulled the treaty.20 Under such circumstances, in 1815 when President Madison, without Congressional authorization, declared the 1782 treaty annulled, he merely gave formal recognition to the recognized fact that the treaty was inoperative and that the other contracting party had ceased to exist. Authorities on international law recognized that "as a result of the changes in the state of Europe effected by the wars of Napoleon, all the treaties of the United States with European powers were considered as terminated, excepting only one with Spain of 1795 . . ." (5 Moore, Dig.Int.L.) 338. Bouvier's Law Dictionary 2820 (Unabridged, 5th Rev., 1914) (Emphasis added); Black's Law Dictionary 1432 (4th Ed., 1968).

(2) The 1850 Swiss Treaty In 1899, President McKinley gave notice to the Swiss Government of the United States' intent "to arrest the operations" of certain articles of the 1850 Convention of Friendship, Commerce, and Extradition with Switzerland (which gave most favored nation treatment to that country.)

In the Tariff Act of July 24, 1897, Congress authorized the President to negotiate reciprocity agreements with other countries in favor of the products of the United States. Shortly thereafter, France and the United States concluded a reciprocal agreement. Switzerland then demanded equal treatment under the most favored nations provisions of its 1850 treaty. It thus became apparent that the 1897 Act conflicted with the 1850 Treaty; since the Tariff Act of 1897 was later in time it became the law of the land, superseding the 1850 Treaty. See Van Der Weyde v. Ocean Transport Co., 297 U.S. 114, 116, 118, 56 S. Ct. 392, 80 L. Ed. 515 (1936). Under such circumstances, when Switzerland refused to negotiate a reciprocity agreement, the President gave the one year notice of termination provided by the treaty. This is thus an instance where a subsequent Act of Congress effectively caused the termination of a treaty, and the President communicated a notice of termination, a purely ministerial act. It cannot be considered as an instance where the President acted "without the participation of Congress."

(3) The Belgian Congo Treaty of 1891 In 1920, President Wilson by agreement, terminated the 1891 Treaty of Amity, Commerce, and Navigation with Belgium concerning the Congo.

In the Seaman's Act of 1915, 38 Stat. 1164, Congress directed the President to terminate conflicting provisions in existing treaties. Belgium was one of the countries so notified because of its relation to the Kongo (Congo). In response, Belgium replied that it considered it to be the best procedure to terminate the entire treaty and asked our Consul to request the United States to make formal acknowledgement of such "denunciation."21 It was thus Congress that directed the President to terminate the provisions conflicting with the Seaman's Act. The President did not terminate the treaty; the President merely recognized the existence of a condition brought about by action of the Belgian Government.

(4) The 1925 Mexican Treaty In 1927, President Coolidge gave notice of termination of the Treaty of 1925 with Mexico that was designed to prevent smuggling between the two nations.

This treaty, proclaimed on March 18, 1926, was terminated by the President on March 21, 1927 because of the deterioration of relations with Mexico over its expropriation of property of United States citizens without compensation. Under such circumstances the President considered that our enforcement of a smuggling treaty with a nation with which we had no commercial treaty might operate in a discriminatory manner.22 The President had the tacit approval of influential Congressmen who expressed their views, as is evidenced by frequent criticism of the Mexican government. Since the treaty had only a narrow scope and because the principal beneficiary, so far as we were concerned, was a foreign government, the legality of the termination was never tested.

(5) The National Recovery Act In 1933, President Roosevelt delivered to the League of Nations a declaration of the United States' withdrawal from the 1927 multilateral Convention for the Abolition of Import and Export Prohibition and Restrictions.

In 1933 as part of the National Industrial Recovery Act (NRA) the Congress authorized the President to license imports and impose embargoes23 that were in violation of the 1927 Multilateral Tariff Convention.24 The NRA specifically directed the President to restrict the importation of any article that might "render ineffective or seriously . . . endanger the maintenance of any (NRA) code or agreement . . . (25 ) only upon such terms and conditions and subject to the payment of such fees and to such limitations in the total quantity . . . as he shall find it necessary to prescribe . . . The decision of the President as to facts shall be conclusive . . ."26 Thereafter, giving various reasons, including the fact that all except seven of twenty-nine countries had withdrawn from the treaty, the President authorized the giving of our notice of withdrawal.

In light of the broad powers given the President in Section 3(e) of the National Industrial Recovery Act, supra, the notice to terminate the treaty could not be said to have been unauthorized by Congress. It had by a Congressional Act, later declared to be unconstitutional,27 given to the President practically complete control over "imports" that rendered ineffective any of the NRA codes or agreements. Following the decision of the Supreme Court declaring Section 3 of the NRA unconstitutional, Congress repealed the unlawful delegation of authority to the President and provided for the expiration on April 1, 1936 of Title I of the National Industrial Recovery Act of June 14, 1935.28

(6) The 1931 Greek Treaty In 1933, President Roosevelt gave notice of termination (which was withdrawn subsequently) of the 1931 Treaty of Extradition with Greece.

President Roosevelt's threat to terminate this treaty because Greece had refused to extradite Samuel Insull first on (1) state, and then subsequently on (2) federal charges, was withdrawn and never carried out;29 it consequently furnishes no support for the President's claim that he is vested with such constitutional power. Moreover, the basis of President Roosevelt's threat was not that he had authority to initiate termination of a valid treaty, but rather that because Greece had violated the terms of the treaty it thereby became voidable and he had authority to so declare. This is a proper construction of Presidential authority, Charlton v. Kelly, 229 U.S. 447, 473-476, 33 S. Ct. 945, 57 L. Ed. 1274 (1913) and has furnished the basis for several terminations. However, the discretionary authority in the President to declare a treaty abrogated, one that has become voidable because the other party violated it, does not furnish any support for the claim that a President acting without Congress can abrogate a treaty that is valid and subsisting, and the supreme law of the land, and which has not in any way been violated by the other party.30

(7) The 1871 Treaty with Italy In 1936, President Roosevelt approved a protocol (deemed to be notice of termination) terminating the 1871 Treaty of Commerce and Navigation with Italy.

The basis of this termination was that Italy had already violated the provisions of the 1871 Treaty by discriminating against American goods; Congress had authorized the President to proclaim modified or additional import restrictions because of discriminatory treatment of American com merce. 31SINCETHIS IS ANOTHER INSTANCE WHEre CONGRESs had authorized the President to take the action he itcannotbe said that the President acted without the participation of Congress.

(8) The 1911 Japanese Treaty In 1939, President Roosevelt gave notice of termination of the 1911 Treaty of Commerce and Navigation with Japan.

This six months notice of termination presents another situation in which the President acted because this nation considered that the other party to the treaty was in breach. Japan, by the discriminatory trade practices it imposed in North China following its military occupation of that area, violated the Treaty of 191133 and the Nine Nations Treaty of February 6, 1922,34 providing for the "Open Door" in China. These trade restrictions had resulted in a substantial discrimination against American commerce with that area and given rise to a claimed violation of America's treaty right to most-favored-nation status.35 The factual situation is fully set forth in diplomatic correspondence and resolutions of Senators who were influential and informed in foreign affairs.36

(9) The 1924 Pan American Trademark Treaty In 1944, President Roosevelt gave notice of denunciation of the 1929 Protocol to the Inter American Convention for Trademark and Commercial Protection.

This 1944 notice37 with respect to the Pan American Trademark Treaty,38 according to the contemporary correspondence, was based on the fact that it had been ineffective39 because of substantial failures by other parties to comply with its terms. We considered that such failures to conform to the treaty did not justify our continuing annual financial contribution to the Bureau purportedly administering the treaty. This is not a case of treaty termination. As Secretary of State Cordell Hull stated in his September 29, 1944 letter to American Diplomatic Officers in the other American Republics "this Government is not denouncing " the Trademark Treaty but was merely "withdraw(ing) its support from the Trade Mark Bureau."

(10) The 1923 Nomenclature Treaty In 1954, President Eisenhower gave notice of withdrawal from the 1923 Convention on Uniformity of Nomenclature for the Classification of Merchandise.

By this 1923 Treaty the signatory nations had agreed to use the 1913 Brussels nomenclature for the classification of merchandise; by 1950, however, such nomenclature was outdated and the United Nations Economic and Social Council urged nations to use the subsequently developed Standard Classification. Thereafter, in 1954 by resolution the Tenth Inter-American Conference of American States requested the "ratifying Governments" of the 1923 Treaty to consider withdrawing from the said Treaty so that all parties could legally abandon it and replace it with the new Standard and International Trade classification of the United Nations.40 Hence, the United States gave notice of withdrawal "in accordance with the . . . recommendation of the Inter-American Conference."41

This withdrawal was merely a recognition that the substantial change in facts and conditions had terminated the obligation of the treaty. In such circumstances the principle applied is known as rebus sic stantibus.

"(This is a) name given to a tacit condition, said to attach to all treaties, that they shall cease to be obligatory so soon as the state of facts and conditions upon which they were founded has substantially changed. Taylor, Int. L. § 394; 1 Oppenheim, Int. L. 550; Grotius, ch. XVI, § XXV; Vattel B. 2, c. 13, § 200; Hall, Int. L. § 116; Hershey, Int. Pub. L. 319.

2 Bouvier's Law Dictionary 2820 (Unabridged 3d Rev., 1914); Black's Law Dictionary 1432 (4th Ed., 1968).

This is yet another instance where the President was simply acting formally to recognize the prior practical termination of a treaty.

(11) The 1865 Cape Spartel Light Treaty Eisenhower Agreement in 1958 to Terminate the Multilateral Convention of 1865 on the Cape Spartel Light.

On January 17, 1958, the Government of the King of Morocco informed the parties to the 1865 multilateral convention on the Cape Spartel Light (1 Bevans 14) at the Strait of Gibraltar of its intention "to terminate that Convention and to assume the management and operation of the Cape Spartel Light." (TIAS 4029). Thereafter, on March 31, 1958, the respective parties met at Tangier, agreed to the King's request and entered into an Executive Agreement setting forth "the terms and conditions of that transfer." This executive agreement formally terminated the Convention of May 31, 1865 and Morocco recovered all the movable and immovable property it "had placed at the disposal of the International Commission", including the "paintings, engravings, models and miscellaneous objects . . . in the light house museum." (TIAS 4029).

Since Morocco had notified the twelve nations forming the International Commission of its intent to terminate the treaty, the subsequent Executive Agreement with the countries forming the International Commission merely formalized Morocco's recovery of its own property pursuant to Morocco's own notice of termination.

(12) The 1920 Cuban Treaty In 1962, President Kennedy gave notice of termination of the 1920 Convention on Commercial Relations with Cuba.

The 1902 Commercial Treaty with Cuba42 was terminated on August 21, 1962 by President Kennedy, acting in accordance with the following Congressional authorizations:

Sec. 620. PROHIBITIONS AGAINST FURNISHING ASSISTANCE TO CUBA AND CERTAIN OTHER COUNTRIES. (a) No assistance shall be furnished under this Act to the present government of Cuba. As an additional means of implementing and carrying into effect the policy of the preceding sentence, the President is authorized to establish and maintain a total embargo upon all trade between the United States and Cuba.

Act of Sept. 4, 1961, P.L. 87-195, 75 Stat. 444-445. The Export Control Act of 1949, 63 Stat. 7, et seq., also authorized such action. Termination was in accordance with a Resolution43 adopted under the Inter-American Treaty of Reciprocal Assistance, September 2, 1947, 62 Stat. 1699-1704.

In view of the above Congressional legislation it can hardly be said that the President acted "without the participation of Congress", Gov't Br. 56.

(13) The 1929 Warsaw Treaty In 1965, President Johnson gave notice of denunciation, subsequently withdrawn, of the 1929 Warsaw Convention concerning liability for damages suffered in international air travel.

This notice was given as part of the negotiations with airlines and other nations in 1965 to raise the maximum limit of recovery for damages suffered in international flight from the $8,300 provided by the Warsaw Convention in 1929, to a more realistic figure. After lengthy negotiations the amount was raised to $75,00044 and the denunciation was withdrawn.45 The President issued his notice after the Chairman of the Senate Foreign Relations Committee had indicated the Committee had no objection to the President's giving such notice.46 However, it was obviously a negotiating notice, as it stated when it was issued that it would be "withdrawn" if there were a reasonable prospect of international agreement on new limits on liability.47 Principally, however, this cannot provide a precedent for unilateral presidential termination because the notice was withdrawn and no treaty was terminated pursuant to his notice. Thus no case developed that might have been used to adjudicate the legality of the President's action had he allowed his notice to achieve its final effect.

C. The Historical Position of Congress and Congressmen.

In addition to the President's contention that his office has in 13 instances terminated treaties without the participation of Congress, the President further attempts to enlarge the effect of that contention by asserting: "(s) ignificantly, in none of the 13 cases where the Executive acted alone was the action subject to congressional challenge on constitutional grounds, or in any way deemed ineffective." A footnote to his brief adds:

40 The Congress has never challenged the President's power to terminate treaties unilaterally in the modern era. This has been true even when there has been extensive discussion of the particular Presidential initiative in Congress. See e. g. the debate regarding President Johnson's Notice of Denunciation of the Warsaw Convention (later withdrawn), App. 436-38; Hearings of the Senate Foreign Relations Committee on the Hague Protocol of the Warsaw Convention, 89th Cong., 1st Sess., Pt. 2, at 42 (1965). (Actually President's notification was more of a negotiating tool; comment added).

Congress' action with respect to the treaty termination here is revealing. While individual Senators and Congressmen have challenged the President's 1978 termination action, the Senate and House have avoided a specific vote on the propriety of the President's notice of termination. See pp. 9-11; 31-33, supra.

Appellant's Br., 55, n. 40.

Even if the above contention were true, and the preceding analysis shows it is not, misuse of power does not legitimize that abuse, or give birth to a constitutional right. As can be noted from the analysis of the 13 alleged instances of claimed independent Presidential termination, Congress did participate in many of the terminations, and Presidential action in most of those cases was relatively innocuous and non-controversial. In the past the disinclination of Congress, or its individual members, to actively oppose the President's terminations may lie in the financially discouraging fact that any Congressman who opposed the President's action would have to pay his own legal expenses. These would be considerable, as he would have to surmount a heavy legal barrage from the Department of Justice, couched in claims that Congressmen have no standing, (as here, Gov't Br. 18-4148) before he could ever reach the merits. It is only since 1974 when this court decided that Senator Kennedy had standing as a Senator to sue to overturn a Pocket Veto, that Congressmen have had much assurance that their standing as Congressmen might be recognized in a court of law against the President. Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (D.C. Cir. 1974). Cf., Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939). In this light, the 13 instances that the President cites are merely situations when Congressmen had little or no incentive, or means, to oppose the President's action, and little or no assurance that a court would ever reach the merits of their objections.

D. Summary of the President's 13 Alleged Instances of Unilateral Treaty Terminations.

To summarize the 13 instances in which the appellant asserts that Presidents acted alone to such an extent that the courts should recognize that the President now has absolute power alone to terminate the Taiwan Treaty, the North Atlantic Treaty, the SALT Treaty, the Japanese Security Treaty and other treaties of similar magnitude: In five instances Congress by direct authorization, or inconsistent legislation supplied the basis for the President's action;49 in two instances the putative abrogation was withdrawn and no termination resulted;50 one treaty was already terminated by the demise of the country;51 one treaty had become void by a change in the basic facts upon which the treaty was grounded;52 four treaties had already been abrogated by the other party53; and of the two that were non-functioning the Trademark Treaty was not terminated.54 See B. (9) supra.

In almost 200 years of American history these are the only instances that appellant has been able to dredge up in an effort to support his claim to absolute power. Analysis of such instances, however, does not support appellant's contentions.55 It is almost farcical for appellant to contend that the President, acting alone, has absolute power to terminate a major United States defense treaty, and by the same token hereafter any defense treaty, because a few earlier Presidents withdrew financial support of a treaty bureau because of non-filing of trademarks by El Salvador, Honduras, Paraguay, et al., and terminated several violated treaties, or terminated treaties relating to a light house museum in Morocco, nomenclature in economic reports, smuggling with a country with whom we had no commercial treaty, or with respect to which notices of termination had been given and then withdrawn. On examination it appears that among the 13 instances upon which the President relies, there were only two minor treaties in which the President could be said to have acted alone since 1788. Reliance upon such miniscule precedent forcibly illustrates the great weakness in the President's claim to absolute power in the present circumstances involving a Defense Treaty.

Also, practically all of the 13 instances upon which the President relies were of such minor impact, or so non-controversial and widely approved that no person would have suspected that such instances would later be claimed as precedents to support an absolute Presidential unilateral power to terminate major defense treaties. An evolution of such great power from so little was never broached or envisioned. Thus does even minor usurpation gnaw away at constitutional rights. Fortunately, however, the imprimatur of law is not lightly awarded. Even the enactment of many statutes and lengthy acquiescence by Congress and the President in constitutional infractions will not support a non-existent power or unwarranted constitutional construction. Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294 (1892); James v. U. S., 202 U.S. 401, 26 S. Ct. 685, 50 L. Ed. 1079 (1903); U. S. v. Boyer, 85 F. 425 (D.C.Mo.1898). Usurpation does not make constitutional that which is unconstitutional.

IV Foreign Affairs within the Constitutional Scheme

A. The Curtiss-Wright Case.

The President asks this court to provide him with absolute power to terminate all treaty obligations of the United States. This claim of absolute Presidential power is of the same breadth as the power to seize the steel mills that President Truman claimed and was denied in Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952). President Carter argues that this unchecked power is a necessary incident of his power to recognize foreign governments, and is consistent with the panoply of foreign affairs powers that the Supreme Court in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936) held that he was authorized to exercise. Although the President as our national actor on the world stage plays the lead, Congress too, has been cast by the Constitution in an important role. Neither the Curtiss-Wright decision nor the President's constitutional authority in foreign affairs should be construed to infringe upon Congress' exercise of its constitutional right to exercise "all legislative powers . . . granted" by the Constitution,⁵⁶ or allowed to undermine our constitutional scheme of checks and balances.

In United States v. Curtiss-Wright, supra, Mr. Justice Sutherland outlined our expansive national powers in the field of foreign affairs, and found the President to be the principal repository of these powers. The gist of his constitutional and historical construction was that the enumerated powers were those taken from the states, the states never possessed international powers, therefore sources of international power need not be directly enumerated in the Constitution.57

Justice Sutherland dubbed the President the "sole organ of the federal government in the field of international relations". He is our spokesman in foreign affairs, but his power "must be exercised in subordination to the applicable provisions of the Constitution,"58 and our laws and treaties. Commentators in the years since the Curtiss-Wright decision, considering on one hand the decision's expansion of Presidential international power, and on the other, the powers over foreign affairs vested by the Constitution in Congress, have puzzled over appropriate apportionment of international powers among the two branches. Professor Henkin, for example, remarks:

(W)e are not told how the undifferentiated bundle of powers inherent in sovereignty is distributed among the federal branches. It seems to have been assumed that they are distributed "naturally", those that are "legislative in character" to the Congress, (59 ) those "executive" to the President. . . .

In Perez v. Brown, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958), Mr. Justice Frankfurter speaking for the court recognized that certain powers "legislative in character", although not specifically delegated to Congress by the Constitution, were nonetheless within the constitutional power that Congress possessed over our foreign affairs. Accordingly, upholding the constitutionality of §§ 401(e) and (j) of the Nationality Act of 1940, in which Congress provided that United States citizenship would be lost by citizens voting in elections in a foreign state, the court found the statute to be a valid regulation of foreign affairs by Congress.60

(W)hat is the source of power on which Congress must be assumed to have drawn? Although there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the law-making organ of the Nation.

356 U.S. at 57, 78 S. Ct. at 575.61 (Emphasis added).

Hence, whatever expansion the Curtiss-Wright decision occasioned in the President's power in foreign affairs, that expansion has its limitations. The decision cannot be read to trample upon the history of treaty termination, which is based on the original understanding that termination would be a power shared by the branches, nor can it undermine the fact that the Constitution provides that the "Constitution, and the laws . . . and all Treaties . . . shall be the supreme Law of the Land."⁶²

The President's authority in foreign affairs is that of head of state. Through his office the actual contacts involved in international relations are carried out. But this power, as Justice Sutherland stated in Curtiss-Wright, "must be exercised in subordination to the applicable provisions of the Constitution". 299 U.S. at 320, 57 S.Ct. at 221. Hence, when in the conduct of foreign affairs, a legislative function is implicated, the President's power must be accommodated to a congressional exercise of power. The negotiation of treaties, being an executive function by the Constitution, is within the presidential prerogative, subject to Senate approval, or possible amendment. So too, the negotiation to end treaties, if negotiations there be, may be a presidential function. Yet when the negotiations, or other determinations, lead to a presidential decision to terminate a treaty, a law is necessary and thus the next required step is legislative. As law of the land, a treaty must be repealed by Congress as the body charged by our Constitution with the legislative function.

The majority states that the President's status as our "sole organ" in foreign affairs is "not confined to service as a channel of communication," but neither is his status enlarged to that of "absolute power." In the conduct of foreign affairs, as in the exercise of all his other powers, the Constitution requires of the President: "He shall take Care that the Laws be faithfully executed." Article II, Sec. 3. So to the extent that a law governs our foreign affairs, the President does act as a "channel of communication" as our spokesman of a law such as Congress might make to terminate a treaty but in other respects he does possess very substantial powers in the foreign field.

B. The Recognition of Foreign Governments.

The President maintains that it would be an interference with his power to "receive Ambassadors and other public Ministers"⁶³ were he not given the absolute right, alone, to terminate the Mutual Defense Treaty with Taiwan without any advice or consent of the Senate or any congressional action. Had the Republic of China (Taiwan) violated the treaty he might have the same right to give notice of the termination of abrogated treaties that other presidents have exercised, but Taiwan has not violated our treaty in any respect.

The President argues that the termination was necessary to his recognition of the People's Republic of China. In making that argument, the President, in effect, asks the courts of this nation to choose between upholding his right to recognize foreign governments and Congress' right to approve the termination of United States' treaties.

I am not persuaded that the court need view these distinctly separate Constitutional powers as necessarily bound together, nor need we elevate one power over the other. As the termination of a treaty is an independent legislative act under our Constitution, termination requires an independent legislative exercise. To the extent that Congress thereby becomes involved in the conduct of foreign relations, it does so in a strictly legislative sense, its approval being required for the repeal of any law.

The President's objective can be achieved merely by inviting Congress to pass a Joint Resolution authorizing the termination of the Taiwan Treaty. Or he can receive the Ambassador from the Peoples Republic of China without the treaty being terminated. There is nothing inherent in the President's constitutional power to receive the Ambassador from the People's Republic that compels terminating the Taiwan Treaty. What creates the complication that bothers the President is that there are actually two Chinas. The President wants to act in some respects as though there is only one China and in other respects, as indicated by the Taiwan Relations Act,64 as though there are two. This attempt to carry water on both shoulders is the basic cause of the President's problem and he asks this court to distort the Constitution to accomplish his objective without Congressional approval. He should not look to the courts to distort or violate the Constitution in an effort to avoid his obligation to secure congressional action on the suggested termination as the Constitution requires.

The linchpin in the President's argument, and it is completely fallacious, is that he must be recognized as having the power, acting alone, to terminate the treaty because the position of the Mainland Chinese Government was that "termination of the Defense Treaty with Taiwan was a prerequisite to (normalization)" of relations between that government and the United States (Appellant's Br. 6-7). But it is a logical non sequitur to conclude from the premise that because the People's Republic requires termination of the Taiwan Treaty that therefore the President must be recognized under our Constitution as having the absolute power alone to terminate that treaty. Such a conclusion is completely unjustified by the premise.

This is not the first time that the supporters of Presidential power have relied upon an invisible premise of expediency. Upholding the President's claimed power might be felt by some to be expedient in these circumstances. Justice Jackson, however, concurring in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 592, 72 S. Ct. 863, 869, 96 L. Ed. 1153, appreciated the hazards of taking an historically myopic view of the balance of power among the branches of government:

The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies such as wages or stabilization and lose sight of enduring consequences upon the balanced power structure of our Republic.

The only pertinent question is what procedure the Constitution requires for termination; what the PRC demands is irrelevant. If the Constitution requires congressional action, as has been the prevailing practice, that is the end of the matter. We should not offend the lasting value of our constitutional scheme in the pursuit of momentary political ascendancy.

C. The Termination Provision of the Treaty.

In several places the majority opinion makes an argument that is essentially based on a play on words and has no legal validity. An example of this is the statement that "notice of termination (was) given by the President pursuant to the terms of the Mutual Defense Treaty . . . ." This is designed to give the impression that the Treaty provides that "the President " is specifically authorized to give the "notice of termination". Such is not the fact. The Treaty provision provides:

Article X: This Treaty shall remain in force indefinitely. Either Party may terminate one year after notice has been given to the other Party.

Clearly the parties referred to are "the United States of America and the Republic of China". The United States of America, not the President, is treaty-bound to give "mutual aid . . . and develop their individual and collective capacity to resist armed attack . . . " etc. Id. Thus the President is not named in the Treaty to give notice of termination, as the majority opinion infers, without exactly saying so. The sole issue in this case is who can act for the United States; that issue is not determined by the Treaty but by the Constitution of the United States.

The deceptive misstatement quoted above, which implicitly assumes the principal issue here to be decided, is repeated four times in the majority opinion at page ---, footnote 2 of --- U.S.App.D.C., at page 699, footnote 2 of 617 F.2d; and pages ----, ---- and ---- of 199 U.S.App.D.C., pages 700, 704 and 706 of 617 F.2d. This argument posing as a statement of fact operates like a smokescreen and if repeated often enough seems to acquire validity. This is unwarranted and deceptive, for it has absolutely no legal validity, hence stands out as another indication of the paucity of legitimate support for the majority decision.

D. Treaties and Presidential Appointments Confirmed by the Senate.

The majority adopts a Presidential argument and states that if Senate approval were held to be necessary to terminate a treaty then identical approval would be necessary to terminate Ambassadors. The majority's reasoning is that Ambassadors are required to be confirmed by the Senate, and they are appointed "under the same clause" as the treaty power. That this point is made in a serious vein is unbelievable and illustrates lack of depth of analysis. The reason some would require Senate approval for treaty termination (and I would require approval by Congress ) is not because treaties are ratified by the Senate but because, under Article VI of the Constitution, treaties, together with the Constitution and United States statutes, are made the "supreme Law of the Land." Subsequent legislative power over such laws is in Congress as the legislative body, hence, as "laws", legislation is necessary to repeal or terminate them.

For presidentially appointed ambassadors who are confirmed by the Senate, however, there is no similar constitutional provision adding anything to their appointment and ambassadors acquire only such right to tenure as they are given by the statute that governs their office. Most presidential appointments have nothing equivalent to the Supremacy Clause to add permanency to their office. The Constitution, however, provides that the tenure of some officials is during good behavior and they cannot be removed except by impeachment. Art. II, Sec. 4; Art. III., Sec. 1. The Constitution does not place ambassadors in that category. The Framers knew how to provide for Senate removal of ambassadors had they so intended. It is thus apparent that treaties and ambassadors are treated differently by the Constitution. That the suggested absurd construction is attempted indicates the dearth of legal support for the President's claim.

E. Checks and Balances in Foreign Affairs.

Finally, this case dramatizes the necessity for contemporary reaffirmation of the Framers' wisdom in designing our constitutional system of checks and balances. Without a congressional check on the President's power to sever our treaty obligations, the President would possess a very dangerous power in some instances to affect our substantive international commitments.65 Presidents change, and courts should be mindful of that fact.

Termination provisions similar to that in the Mutual Defense Treaty with Taiwan can be found in the North Atlantic Treaty (NATO) of April 4, 1949, 4 Bevans 828, the Security Treaty with Japan of January 19, 1960, 11 U.S.T. 1632, the Nuclear Nonproliferation Treaty, 21 U.S.T. 493, the Biological Weapons Convention, 26 U.S.T. 591, and the Outer Space Treaty, 18 U.S.T. 2420. Is the sole power to terminate these treaties vested in the President? Can a President, acting alone, terminate the SALT Treaty or the Migratory Bird Treaty? No prior President has ever claimed such power with respect to such important treaties; we should not allow the few prior instances where Presidents, in relatively minor matters, may have acted alone to be magnified into a truly awesome power and a dangerous precedent.

If the President has absolute power to terminate the Mutual Defense Treaty with Taiwan he likewise has absolute power under similar circumstances to terminate the NATO Treaty, our Japanese Security Treaty, the SALT Treaty and any other Defense Treaty that the Senate might have concurred in by a two-thirds vote. But when the Constitution explicitly requires the vote of two-thirds of the Senators present to ratify a treaty already fully negotiated by the President, a contention that the same Constitution would vest absolute power in one official to terminate that treaty is clearly contrary to the constitutional design.

Maintenance of a constitutional balance in treaty termination assumes even greater importance as our nation becomes increasingly oriented toward global affairs. The practicalities of power, and abuse of power, present persuasive arguments for retention of the practice of sharing the treaty termination power. Distance from the days of the Framers of the Constitution should not sever us from their constitutional scheme of checks and balances, any more than it can overcome the logic inherent in the magnificent document they bequeathed to us.

As modern communications, transportation, and military power increasingly bring the perils and problems of the entire globe into our daily consciousness, our national concerns become international. Foreign affairs become our national affairs. Hence, to the extent that we complacently grant to the President unbridled power in the international realm, we increase his power nationally, to an ever expanding degree.

An accurate summary of the potential consequences of absolute power that the majority opinion would place in the President is set forth in a current article in 19 Harvard International Law Journal 931, 1008 (1978), by D. Scheffer:

If the President's unilateral action were to go unchecked, then the precedent which this case would establish could lead to the inevitable consequence of an ambitious or unreasoned President disengaging the United States from crucial bilateral and multilateral treaties with the stroke of a pen and without the constitutional balance of legislative advice and consent.

The appetite of the presidential office will be whetted by the court's decision today. In future years, a voracious President and Department of State may easily use this grant of absolute power to the President to develop other excuses to feed upon congressional prerogatives that a Congress lacking in vigilance allows to lapse into desuetude.

I would instead preserve the congressional function of treaty termination, recognizing that exercise of this power requires a majority vote of Congress and the approval of the President.66 Accordingly, I respect fully dissent and would affirm the decision of the District Court to the extent that it requires an act of Congress and approval thereto by the President. It is erroneous for the majority opinion to assert that my "position . . . requires a reversal of the District Court."