Judge Bates' Decision in Kucinich v. Bush
Is the Glass Half Empty or Half Full?
By Peter Weiss


Judge Bates’ decision of December 30, 2002 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 President’s 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is "the supreme law of the land" and therefore cannot be terminated by the President alone any more than a law can be repealed by the President without the consent of Congress.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 President’s 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 Carter’s 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’ approval.

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 President’s position, was not controlling, he was persuaded by Justice Rehnquist’s 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", thus challenging, by implication, the President’s position that, given the President’s 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 President’s announcement that he had – without consulting Congress – given notice of termination of the ABM treaty to Russia: PeterDennis4.jpg (34734 bytes)

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 Powell’s 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, who, incidentally, disagreed strongly with the plurality view on political question doctrine:

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 Feingold’s 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.

Peter Weiss is president of LCNP and was lead counsel for plaintiffs in Kucinich v. Bush.

Photo above: Dennis Kucinich and Peter Weiss outside the Federal Courthouse in Washington, D.C., October 31, 2002 (Photo by Nya Gregor Fleron).


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