HomePoliticsAn American departure from NATO under Trump would likely lead to a...

An American departure from NATO under Trump would likely lead to a legal confrontation

  • President-elect Trump has warned that he could try to withdraw the US from NATO.

  • Any attempt would antagonize Congress and venture into uncharted legal waters.

  • A legislative expert saw signs that Congress could favor Congress in this largely untested area.

In 2018, President Donald Trump personally warned that he could withdraw the US from NATO. He complained that other alliance members were not contributing their fair share of defense spending, leaving American taxpayers to foot the bill.

Congress thought differently. It added a special provision to the National Defense Authorization Act of 2020, which regulates funding for the U.S. military. Section 1250A specifies that the president cannot unilaterally withdraw America from NATO without an act of Congress, or unless two-thirds of the Senate agrees.

Should Trump follow through during his second term, which begins Monday, the withdrawal would fall into a legal gray area that will likely be settled in court and could be to Congress’s advantage. The problem is that while the Constitution specifies that the president has the power to negotiate treaties, it doesn’t say whether he has the power to break them.

“Although Congress has provided for the President’s withdrawal from a treaty to some extent in the past, Section 1250A is the first statute in which Congress has prohibited the President’s unilateral withdrawal from a treaty,” according to a report by Karen Sokol , a legislative attorney for the Congressional Research Service, who analyzes issues before Congress.

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The Founding Fathers were rightly proud of having created a government of checks and balances, in which neither the executive, legislature, or judiciary could monopolize power. But they probably wouldn’t be too happy about the dispute over NATO, in which America played a major role 75 years ago, when a devastated Europe seemed easy prey for Soviet conquest.

Normally, the executive branch handles most foreign policy and national security matters, such as negotiating treaties, although Congress exerts significant influence through defense budgets, ratifying treaties and approving arms sales. The powers between the executive and the legislature are so clearly demarcated that, for the most part, the system works.

If the executive branch and the legislature cannot reach an agreement, the courts must intervene. But of all the myriad issues that end up before American courts, foreign policy is the area where judges are most cautious. In the event of a withdrawal from NATO, the courts will look for legal precedents in an area where they are not present.

The White House has long maintained that it can withdraw from treaties without opposition from Congress, such as when the Carter administration withdrew from a mutual defense treaty with Taiwan, which Senator Barry Goldwater and other members of Congress appealed in court . “Ultimately, the Supreme Court declined to intervene in the dispute,” Sokol noted. “Because a large number of judges concurred in the judgment to dismiss the complaint, concluding that the case raised a political issue that was properly addressed by the political branches rather than by the judiciary – a decision that is not uncommon in cases involving separation of powers.” powers disputes in the field of foreign policy.”

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U.S. special operators skydive from an MC-130J Commando II aircraft during a December exercise with a NATO ally.US Air Force

In 2020, at the end of Trump’s first term, the Justice Department published an advisory opinion asserting that abrogation of the treaty is an exclusive presidential power that Congress cannot limit. And the Supreme Court has ruled that the executive branch has the power to recognize foreign governments, even though that power is not specified in the Constitution.

Yet previous cases suggest that the courts may reject this argument. Sokol points to the 1952 Youngstown Steel case, when the Supreme Court condemned President Harry S. Truman’s attempt to seize steel mills during the Korean War on the grounds that it conflicted with Congress’s intentions .

“Under the Youngstown framework, courts evaluate presidential claims of authority based on what Congress has said — or not said — on the issue,” Sokol wrote. By that standard, Congress has expressed its intent for the U.S. to remain in NATO by passing Section 1250A.

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Sokol also believes the courts can reject the Trump administration’s claim that only the executive branch can decide to withdraw from treaties. “A court may not find persuasive a president’s claim to exclusive constitutional authority to withdraw from a treaty, since the Constitution is silent on the power to withdraw from a treaty and Article II makes entry into a treaty a shared power between the President and the Senate.”

In any case, the question of whether Trump has the power to withdraw from NATO means venturing into largely uncharted legal waters. “Ultimately, it is uncertain how a court would rule on the constitutional division of the power to revoke a treaty, based on its analysis of the text and structure of the Constitution, relevant Supreme Court precedent, and the historical interbranch practice,” Sokol concluded.

Trump may not need to formally withdraw from NATO to damage it. For example, a war game by British experts last year showed that Trump could sabotage the alliance by simply making America do less. This could include minimizing U.S. participation in NATO exercises or limiting U.S. officers serving as NATO commanders. The consequences of an American withdrawal would be global and difficult to predict.

Michael Peck is a defense writer whose work has appeared in Forbes, Defense News, Foreign Policy magazine and other publications. He has an MA in Political Science from Rutgers Univ. Follow him further Tweet And LinkedIn.

Read the original article on Business Insider

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