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In the 1970s, President Jimmy Carter hoped to establish a treaty with the People’s Republic of China. To facilitate that, President Carter unilaterally rescinded a defense treaty between the United States and Taiwan. A group of senators, including Senator Barry Goldwater, were incensed by the president’s action and filed suit.
The Constitution is silent as to how a treaty may be rescinded. Nevertheless, the senators argued that because two-thirds of the Senate must ratify a treaty, Senate approval was also required to rescind one.
The United States Supreme Court granted cert. The issue was whether the president had the authority to unilaterally nullify a treaty.
Without oral argument, the Court issued a brief per curiam opinion declaring the question nonjusticiable. Thus, the case was remanded back to the lower court for dismissal.
However, the opinion was far from unanimous. Justices wrote separately to detail why the question was nonjusticiable, argue that the case was not yet ripe, or dissent entirely and advocate for a ruling on the merits.
The justices’ positions are instructive, but the question of whether the president may terminate a treaty without congressional approval remains open.