Lead Counsel for congressional plaintiffs in Kucinich v. Bush
January 10, 2003
Judge Bates decision of December 30 in Kucinich v. Bush, the ABM Treaty
Termination case, was foreshadowed by his decision of December 9 in Walker v. Cheney.
In Kucinich, 32 members of Congress sought a ruling that the Presidents
unilateral termination of the ABM Treaty was unconstitutional because, under the supremacy
clause, a treaty is "the supreme law of the land" and therefore cannot be
terminated by the President alone any more than a law can be repealed by the President
without the consent of Congress. The plaintiffs also argued that the Presidents
action ran counter to historical practice because, with one exception, no treaty of such
importance had ever been terminated by the President acting alone.
The exception was President Carters unilateral termination of the Taiwan Mutual
Defense Treaty, which was challenged by a group of conservative Republican members of
Congress on precisely the same grounds invoked in Kucinich. The earlier case, Goldwater
v. Carter, reached the Supreme Court, which dismissed the complaint in a splintered
opinion lacking a majority rationale. Neither Goldwater nor Kucinich
reached the merits of the supremely important constitutional question whether, absent a
specific constitutional provision dealing with treaty termination, the President is
authorized to terminate treaties without consulting Congress and obtaining Congress
The Kucinich decision rests on two grounds: standing and political question.
Judge Bates held that, under the 1998 Supreme Court decision in Raines v. Byrd,
the line item veto case, individual members of Congress have no standing to obtain
judicial determination of a dispute with the executive branch unless they can show
"personal injury". He further held that, while Goldwater, contrary to
the Presidents position, was not controlling, he was persuaded by Justice
Rehnquists plurality opinion in Goldwater that here, as in the earlier
case, plaintiffs had raised a non-justiciable political question. However, he also stated
that Congress has "extensive self-help remedies" in a treaty termination case,
thus challenging, by implication, the Presidents position that, given the
Presidents allegedly "plenary power over foreign affairs", Congress is
powerless to challenge unilateral treaty termination.
Thus, the decision lays to rest two myths which seemed to paralyze Congressional action
following the Presidents announcement that he had without consulting Congress given
notice of termination of the ABM treaty to Russia:
- MYTH 1: Goldwater v. Carter decided, once and for all, that unilateral treaty
termination by the President is constitutional;
- MYTH 2: Regardless of Goldwater, the President is authorized, in the absence of
any constitutional provision to the contrary, to terminate treaties unilaterally.
It is significant that, throughout his 31 page opinion, Judge Bates repeatedly and with
implicit approval refers to Justice Powells opinion in Goldwater that courts should
not intervene in disputes between the two political branches until a "constitutional
impasse" has been reached. He cites, for instance, this statement by Justice Powell
disagreed strongly with the plurality view re political question -:
Prudential considerations persuade me that a dispute between Congress and the President
is not ready for judicial review unless and until each branch has taken action asserting
its constitutional authority.
This is the same rationale on which Judge Bates dismissed the complaint in Walker,
the case in which the Comptroller General had, on instructions from the ranking members of
two Congressional committees, sought his aid in ordering the Vice President to disclose
the names of the persons he had consulted as Chairman of the energy task force. In other
words, Congress as an institution has standing to raise constitutional questions in court,
individual members do not.
It is difficult to accept Judge Bates reference to Congress "self-help
remedies" the power of the purse, the power to raise armies and navies, the power to
declare war in relation to treaty termination. But the following intriguing questions
remain after his decision:
Would he have considered the complaint justiciable if a majority of Congress had
expressed its opposition to termination?
Would he have done so if Congress had authorized the bringing of the suit?
Would he honor a clause attached to the ratification of a future treaty stating that it
can only be terminated with the approval of Congress (or of the Senate)?
Would he honor a sense of Congress resolution that henceforth no treaties may be
terminated without the approval of Congress (or of the Senate)?
Would he have ruled differently if the Senate Ethics Committee had not disapproved Senator
Feingolds application to accept pro bono legal services for this suit? (At
the hearing, the judge seemed to express some sympathy for the proposition that
"symmetry" would suggest that a treaty, which requires the approval of two
thirds of the Senate, should not be terminated without some input by the Senate).
This leaves open the relevance of the second ground of dismissal, political question.
As to this, it should be noted that Judge Bates makes much of the fact that the Kucinich
suit was not brought until two days short of the six month period when the termination of
the ABM Treaty was to become effective. This, according to the judge, brought it within
the parameters of the Baker v. Carr standard of "unusual need for
unquestioning adherence to a political decision already made." Will the political
question rationale fall away if Congress acts more promptly in a future treaty termination
case? Time will tell.