42 Op. O.L.C. __ (Oct. 17, 2018)
10
understanding as to the role of Congress and which legislative actor, the
Senate or the full Congress, had the authority to authorize the action.
6
Over the course of time, historical practice shifted towards the view
that the President could terminate a treaty without congressional authori-
zation. In some instances, the President effectuated the termination, but
Congress or the Senate then authorized it. Thus, in 1864, in response to
Confederate raids from Canada, President Lincoln provided notice to
terminate the Great Lakes Agreement with Great Britain, pursuant to the
agreement’s notice provision. See Abraham Lincoln, Fourth Annual
Message (Dec. 6, 1864), in 6 Papers of the Presidents 243, 246; see also
12 Charles I. Bevans, Ass’t Legal Adviser, Dep’t of State, Treaties and
Other International Agreements of the United States of America: 1776–
1949, at 54 (1971) (“Bevans”) (text of agreement). A fierce debate in the
Senate ensued over whether President Lincoln had exceeded his constitu-
tional powers in doing so and whether Congress could properly ratify his
action.
7
In the end, however, Congress passed a joint resolution authoriz-
ing the President’s action. Joint Resolution No. 13 of Feb. 9, 1865, 13
6
In addition to these two examples, President Madison’s Administration exchanged
diplomatic correspondence in 1815 regarding the impact of the Napoleonic Wars on a
commercial treaty between the United States and the Netherlands; although both countries
later disputed the status of the treaty, the United States “successfully argued that it had
been agreed by the Netherlands government and President Madison in 1815 to regard the
treaty as terminated.” 1978 Legal Adviser Memo at 402; see 2 Foreign Relations of the
United States, 1873, at 720–24 (1873). Notwithstanding Madison’s earlier views, his
Administration did not seek or obtain congressional approval. There remains some debate,
however, about whether the United States terminated the treaty, or whether the parties
jointly recognized that the treaty had ceased to have effect. Compare Bradley, Treaty
Termination, 92 Tex. L. Rev. at 796–97, with Myres S. McDougal & Asher Lans, Treaties
and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of
National Policy, 54 Yale L.J. 181, 336 & n.127 (1945).
7
Compare Cong. Globe, 38th Cong., 2d Sess. 312 (1865) (statement of Sen. Davis)
(“[U]ntil it is ratified and confirmed by the action of Congress, as every gentleman
acknowledges, [the President’s notice] has no effect or operation whatever.”), and id.
(statement of Sen. Sumner) (“[A] treaty may be regarded as to a certain extent a part of
the law of the land, to be repealed or set aside only as other law is repealed or set aside:
that is, by act of Congress.”), with id. at 313 (statement of Sen. Johnson) (“We know that
under the Constitution of the United States, the only organ between the United States and
foreign Governments is the Executive. They have nothing to do with the Congress of the
United States or with the judiciary of the United States. The whole foreign relations of the
country . . . are to be conducted by the President.”).