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FACTS: Senator Barry Goldwater and other members of Congress challenged President Jimmy Carter's termination of the Mutual
Defense Treaty with Taiwan without consulting or securing the prior approval of the Senate. Article II, section 2, clause 2 of the
Constitution states that the president has the power to make treaties, provided that two-thirds of the Senate concurs. However, the
Constitution does not address the question of how a treaty may be abrogated.
ISSUE: Whether or not President can abrogate by himself an international treaty
HELD: The US Supreme Court left the question unanswered, the matter is not yet ripe for judicial review since it is one having the
nature of political question, hence, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court
with directions to dismiss the complaint.
Justice William Rehnquist, in a concurring opinion joined by Chief Justice Warren Burger and Justices Potter Stewart and John Paul
Stevens, argued that this was a non-justiciable political question because it involved the authority of the President in the conduct of
our country's foreign relations specifically a treaty commitment to use military force in the defense of a foreign government if
attacked (pp. 10021004). The Court was asked to settle a dispute between coequal branches of government, each of which has
resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum (p. 1004).
Justice Lewis Powell concurred separately, arguing that the issue was not ripe for judicial decision since Congress had not yet
confronted the president about the treaty.
If Congress had challenged the Presidents authority to terminate, then the court would have justiciable issue to decide. Without
a challenge the issue only involves a political question. Neither the Senate nor the House have taken any action, thereby rendering
the case unripe for decision. There is no specific language preventing the President from terminating treaties without approval.
There is no showing that Congress has rejected the Presidents claim. It is Congress choice to challenge the President not the
The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the
political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of
Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.