Published January 13, 2015
The Justice Department asked a federal court Tuesday to dismiss a lawsuit filed by 31 House members challenging President Bush's authority to withdraw the United States from the 1972 Anti-Ballistic Missile Treaty.
The United States officially left the treaty in June, six months after Bush announced his intentions to do so. The plaintiffs are all Democrats, except for one independent who usually votes with Democrats.
Rep. Dennis Kucinich, D-Ohio, the lead plaintiff, has said the president must first seek the consent of Congress before pulling the United States from the treaty.
In a court document seeking dismissal of the case, the government said the Constitution grants the president full control over the conduct of foreign affairs and most treaty matters.
"The plaintiff's position also does not take into account Congress' failure in over 200 years to seek to set for itself a more definite role in treaty termination," government attorneys wrote.
Precedents also show that federal courts can only become involved in disputes between the executive and legislative branches of government when a plaintiff can prove he or she was personally harmed, the government argued. Allegations that legislative authority has been diminished do not qualify, as those complaints can be remedied by the lawmaking process.
The lawsuit, filed in U.S. District Court for the District of Columbia, also names Defense Secretary Donald H. Rumsfeld and Secretary of State Colin Powell as defendants.
It states that while the Constitution is silent on the role of Congress in treaty terminations, treaties have the status of "supreme law of the land" equivalent to federal laws and that laws can be repealed only by an act of Congress.
"I am troubled that many in Congress appear willing to cede our constitutional responsibility on this matter to the executive branch," Sen. Russ Feingold, D-Wis, said earlier this year.
In House debate in June, Republicans argued that past presidents have terminated dozens of treaties without consulting Congress. Kucinich pointed to an 1835 House vote blocking President Jackson from pulling out of a treaty with France.
In 1979 the late Sen. Barry Goldwater, R-Ariz., sued President Carter over his decision to terminate a mutual defense treaty with Taiwan when he established diplomatic relations with the Beijing government. The Supreme Court, without ruling on the constitutional issue, vacated or threw out an appeals court ruling in favor of Carter and ordered it sent back for reconsideration.
Four of the justices said it was a political matter that should be decided between Congress and the president.