Report

Trump Can’t Do That. Can He?

On NATO withdrawal and other issues, it turns out presidential powers are constrained by norms but not laws.

NATO Secretary-General Jens Stoltenberg (from left) with U.S. President Donald Trump and British Prime Minister Theresa May at NATO headquarters in Brussels on July 11, 2018. (Sean Gallup/Getty Images)
NATO Secretary-General Jens Stoltenberg (from left) with U.S. President Donald Trump and British Prime Minister Theresa May at NATO headquarters in Brussels on July 11, 2018. (Sean Gallup/Getty Images)

If U.S. President Donald Trump decides to withdraw from NATO tomorrow, Congress might be unable to stop him.

That’s the conclusion a group of top lawmakers and some legal experts have reached, as Trump over the past two years has repeatedly bashed the alliance and extended olive branches to Russian President Vladimir Putin—even while his administration has taken some steps to support NATO.

The legal assessment is particularly worrying for some Democratic lawmakers in the wake of a New York Times report revealing that Trump had privately discussed leaving NATO. And it reflects a broader challenge that the Trump presidency poses on a number of issues, including trade policy, international treaties, and clean governance: The guardrails that curb a president’s powers are often traditions and norms but not actual laws.

U.S. membership in NATO retains broad public support and nearly unanimous backing in an otherwise fractious Congress. And any attempt to alter America’s role in the alliance would push the president into uncharted legal waters, even setting aside the geopolitical shockwaves.

Still, if Trump decided to withdraw unilaterally, it appears the law would be on his side, based on a series of court rulings over the past half-century and the Constitution itself.

“The president, in the foreign affairs realm, can exercise a lot of discretion where Congress is silent,” said Scott Anderson, a scholar at the Brookings Institution and former attorney for the State Department who has explored the issue in his research.

Anderson pointed to a case involving China and Taiwan in the 1970s. Sen. Barry Goldwater and other lawmakers in 1979 sued President Jimmy Carter after he unilaterally withdrew from a mutual defense treaty with Taiwan to pave the way for the “One China” policy. The Supreme Court dismissed the lawmakers’ challenge, saying foreign affairs issues were political ones, not judicial, and this was a fight for Congress and the executive branch to sort out among themselves.

Judges avoided intervening in subsequent cases as well. In 1986, a private company doing business in Nicaragua, Beacon Products Corp., sued the Reagan administration for damages after it slapped a trade embargo on the Central American country and withdrew from a joint treaty of friendship. The suit was dismissed in a U.S. district court.

And in 2002, 32 members of Congress sued George W. Bush for withdrawing from the Cold War-era Anti-Ballistic Missile Treaty signed with the Soviet Union without prior congressional consent. That case was thrown out of a U.S. district court. The judge cited the Goldwater v. Carter precedent, saying the treaty withdrawal was a political issue and thus outside the scope of the judicial branch.

With that in mind, a bipartisan group of senators who support NATO drafted legislation last year that would bar the president from leaving NATO without two-thirds consent of the senate—the same ratio required for the United States to enter into any new treaty as directed by the Constitution. Ultimately, the Senate didn’t vote on the bill.

But a bipartisan group of 8 senators are expected to re-introduce the legislation as soon as Thursday, which would “prevent any president from leaving NATO,” according to an advance draft of the bill obtained by FP. The eight senators include Democrats Tim Kaine, Jack Reed, Chris Coons, and Richard Blumenthal, and Republicans Cory Gardner, Lindsey Graham, Marco Rubio, and Susan Collins.

Kaine and the others might be aided in their endeavor by a Supreme Court ruling from 1952 over President Harry Truman’s attempt to seize most of the country’s steel industry for the Korean War effort amid workers’ strikes.

In the landmark ruling, the Supreme Court judges effectively curbed a president’s ability to disregard congressional limits on his power in the realm of national security.

Nearly 70 years later, this ruling gives a legal opening to Kaine and others concerned about Trump’s aims with NATO: If Congress passes a law saying Trump can’t withdraw from the alliance, it would be hard for the president to beat in court.

U.S. and NATO officials believe an actual U.S. withdrawal is far-fetched. But Trump might be less inhibited since the resignation last month of the alliance’s most ardent supporter in the administration, Defense Secretary James Mattis.

Even talking about a NATO withdrawal as a hypothetical has political impacts across the Atlantic, several U.S. and NATO officials who spoke to Foreign Policy said. “Talking about it in and of itself undermines NATO and strengthens Russia,” one U.S. official said. “Let’s not do the Russians’ work for them.”

Trump has criticized NATO allies for not spending enough on defense and relying instead on U.S. taxpayers to foot the bill for Europe’s security. His position has led to uncomfortable moments, awkward photo-ops, and tense backroom exchanges with foreign counterparts at NATO meetings.

“He has followed through on some of his more disruptive campaign promises, so you just don’t know,” another U.S. official said.

But Washington’s approach to the issue has appeared inconsistent over the past two years. Even as Trump has questioned NATO’s utility, his administration has pushed forward policies that buttress European security and crack down on Russian revanchism.

This includes supplying Ukraine with lethal weapons as it fights Russian-backed insurgents (which the Obama administration refused to do), boosting spending for the U.S. military in Europe, ramping up military exercises with allies, and crafting NATO command structure reforms to streamline the alliance’s unwieldy bureaucracy. Sources close to the administration point to these measures as a way of dismissing reports that Trump is ready to leave the alliance or is weak on Russia.

“The United States is strongly committed to NATO and to trans-Atlantic security. At his summit press conference last July, the president called NATO ‘very important’ and ‘very good for us,’” a NATO spokesperson told FP.

“A strong NATO is good for Europe and good for North America,” the spokesperson added, citing strides in Canadian and European defense spending to address Trump’s criticisms.

The next test in the relationship might come at a meeting of NATO defense ministers in Brussels next month or at the planned gathering of NATO foreign ministers in Washington in April to celebrate the 70th anniversary of the alliance.

“We celebrate the Trump administration’s policies while keeping our fingers crossed that Trump’s own views don’t override his administration’s,” said Alexander Vershbow, a former deputy secretary-general of NATO.

Both Secretary of State Mike Pompeo and National Security Advisor John Bolton have touted the importance of the alliance, particularly in light of Russian aggression in Ukraine and elsewhere. But Vershbow expressed doubt that they could push back on the president’s anti-NATO instincts in the case of a crisis in the relationship.

The most optimistic scenario, Vershbow said, is that the uneasy coexistence between a pro-NATO administration and skeptical president can endure “for at least two more years.”

Mattis’s departure could be seen in retrospect as a turning point, according to one European defense official. “I am not surprised by his [Trump’s] threats, but it makes me even more worried about Mattis’s resignation.”

As another Western defense official put it: “The NATO cheerleaders have no captain.”

Update, Jan. 17, 2019: This article was updated to include information on new NATO-related legislation in the Senate.

Robbie Gramer is a staff writer at Foreign Policy@RobbieGramer

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