Several members from the Senate and the House sued the President claiming that the President may not terminate the mutual defense treaty with Taiwan without legislative participation.
If a question presented to the court entails a political question, it is nonjusticiableand will not be decided by the court.
President Carter gave unilateral notice of the termination of the mutual defense treaty to the Republic of China (Taiwan) pursuant to the termination clause contained in treaty allowing either party to terminate within one year’s notice. The President also recognized the Peking Government rather than the Taiwan Government as the Government of China. Some members from the Senate and the House sued claiming that the President may not terminate the treaty without legislative participation. The district court held the President’s notice of termination was ineffective unless two-thirds of the Senate or the majority of both Houses approved. The Circuit Court reversed.
Can the President terminate the mutual defense treaty with Taiwan without legislative participation?
The plurality opinion refused to consider the merits of the case because the question presented by the petitioners is political and thus nonjusticiable since it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.
Justice Blackmun and Brennan
Blackmun: If the President does not have the power to terminate the treaty, the notice of intention to terminate surely has no legal effect. It is also indefensible to pass on the issue of justiciability without further study.
Brennan: The Court’s precedent firmly establishes that the Constitution commits to the President alone the power to recognize, and withdraw recognition from foreign regimes. That mandate being clear, the court’s inquiry into the treaty can go no further.
The case is not ripe for judicial review. 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. The differences between the President and Congress turn on political rather than legal considerations. The courts should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. That has not yet happened.
The controversy at issue is a nonjusticiable political dispute that should be left for resolution by the Executive and Legislative Branches. While the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty. In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties, the case in question must be controlled by political standards, not judicial ones.