Goldwater prevails in *Goldwater v. Carter*

"In December 1978, President Carter decided to recognize the People’s Republic of China, instead of the Republic of China, simultaneously invoking the termination clause of the Mutual Defense Treaty with Taiwan. Senator Goldwater and other members of the Senate and House sued, contending that termination could not be constitutionally effective without concurrence of the entire Congress. D.C. District Judge Oliver Gasch enjoined the Secretary of State from taking action to implement the termination, holding that the U.S. could not terminate the Treaty until the President’s actions received the approval of two-thirds of the Senate or a majority of both Houses of Congress. President Carter appealed contending that the case presented a non-justiciable political question that should not be resolved in the courts but rather through give-and-take accommodation of the political process. The D.C. Circuit reversed on the merits, concluding that the President had not exceeded his constitutional authority; no judge would have declined to exercise jurisdiction by reason of the political question doctrine. The Supreme Court reversed without argument and ordered the case dismissed, with a plurality concluding that the case was non-justiciable under the political question doctrine.."

http://legalhistoryblog.blogspot.com/2018/02/from-goldwater-to-zivotofsky-political.html

"While dismissing the case of Goldwater v. Carter, the Supreme Court left the question of the constitutionality of the President Carter's action open. Powell and Rehnquist merely questioned the judicial merit of the case itself; they did not explicitly approve Carter's action.[9] Moreover, Powell even stated that this could be a valid constitutional issue.[2] Article II, Section II of the Constitution merely states that the President cannot make treaties without a Senate majority two-thirds vote. As it stands now, there is no official ruling on whether the President has the power to break a treaty without the approval of Congress." https://en.wikipedia.org/wiki/Goldwater_v._Carter

So, what if Goldwater had prevailed in the Supreme Court in *Goldwater v. Carter*? Could Carter get congressional approval of the termination of the US-RoC mutual defense treaty, and if not, how would that affect US-PRC relations? There is also the question of the broader implications of ending a president's power to unilaterally terminate treaties, e.g. George W. Bush's decision to withdraw from the ABM treaty. (And of course there's Trump and the Paris agreement on climate and the Iran nuclear deal https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action but the Obama administration's position was that these were not treaties and did not require Senate ratification. Indeed, the tendency of nations to reach agreements by things other than formal treaties would presumably reduce the impact of a Supreme Court decision in Goldwater's favor...)
 
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So, what if Goldwater had prevailed in the Supreme Court in *Goldwater v. Carter*? Could Carter get congressional approval of the termination of the US-RoC mutual defense treaty, and if not, how would that affect US-PRC relations? There is also the question of the broader implications of ending a president's power to unilaterally terminate treaties, e.g. George W. Bush's decision to withdraw from the ABM treaty. (And of course there's Trump and the Paris agreement on climate and the Iran nuclear deal https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action but the Obama administration's position was that these were not treaties and did not require Senate ratification. Indeed, the tendency of nations to reach agreements by things other than formal treaties would presumably reduce the impact of a Supreme Court decision in Goldwater's favor...)

Such a doctrine would significantly alter the effect of treaties, which in many ways are legislative action. For one thing, they are ratified by a 2/3 vote of the Senate, and therefore ending a treaty would require a 2/3 vote as well. This could lead to weird conditions. If the US had concluded a non-aggression treaty with a foreign country, the US could not declare war against that country until the treaty was nullified or withdrawn from by a 2/3 vote, even though the US can declare war by a majority vote of the House and of the Senate.
 
Such a doctrine would significantly alter the effect of treaties, which in many ways are legislative action. For one thing, they are ratified by a 2/3 vote of the Senate, and therefore ending a treaty would require a 2/3 vote as well. This could lead to weird conditions. If the US had concluded a non-aggression treaty with a foreign country, the US could not declare war against that country until the treaty was nullified or withdrawn from by a 2/3 vote, even though the US can declare war by a majority vote of the House and of the Senate.

Actually, it does not take a 2/3 vote of the Senate to nullify a treaty, no matter how *Goldwater v. Carter* would be decided. A majority of both houses of Congress (assuming no veto) could always do it by ordinary legislation. Constitutionally, treaties have no superiority to ordinary legislation; they yield to subsequent laws when there is a conflict, and vice versa. Whatever is the most recent expression of the will of the sovereign prevails:

"The Constitution gives [a treaty] no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

"A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

"In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become 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..." https://supreme.justia.com/cases/federal/us/112/580/case.html

Nothing in any conceivable result of *Goldwater v. Carter* would have changed this well-established doctrine. The case was about the right of a president unilaterally to withdraw from a treaty, not about the right of a majority of both Congress to do so.
 
Nothing in any conceivable result of *Goldwater v. Carter* would have changed this well-established doctrine. The case was about the right of a president unilaterally to withdraw from a treaty, not about the right of a majority of both Congress to do so.


"D.C. District Judge Oliver Gasch enjoined the Secretary of State from taking action to implement the termination, holding that the U.S. could not terminate the Treaty until the President’s actions received the approval of two-thirds of the Senate or a majority of both Houses of Congress."

ISTM that it would be plausible to argue that a 2/3 vote of the Senate is required to undo an action for which a 2/3 vote of the Senate was required. Gasch did allow both-houses-majority action.
 
ISTM that it would be plausible to argue that a 2/3 vote of the Senate is required to undo an action for which a 2/3 vote of the Senate was required.

As I noted, this has been consistently rejected by the Supreme Court. Treaties do not have any higher status than any other law. Whatever is the most recent expression of the will of the sovereign prevails. As William Howard Taft wrote long ago,

"A sovereign nation, though it makes a treaty, has the power to break it, even though it be violating its plighted faith and doing an immoral thing. If it could not it would not be sovereign. Therefore, Congress may make a law which is binding on the courts and on the people within its jurisdiction, though the law violate a binding treaty. As an act of Congress can repeal a treaty operating as a municipal law, so a treaty can repeal an act of Congress in so far as the treaty contains provisions which in their nature can operate as law and are inconsistent with existing statute. Much confusion arises in the minds of laymen in regard to these principles, but the rule is perfectly simple when it is understood. I had a communication from a man who asked me if the Supreme Court was not very weak on the subject of enforcing our treaty obligations with other nations. The court only enforces law as it finds it, and as a treaty is a law so a statute is a law, and that which comes later repeals what was earlier with which it is inconsistent..." https://books.google.com/books?id=TNBLAAAAMAAJ&pg=PA99

This is a well-established rule which was not questioned by either side in *Goldwater v. Carter.*
 
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