crs_reports: R48868

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R48868 Separation of Powers and NATO Withdrawal 2026-02-27T05:00:00Z 2026-03-03T16:08:02Z Active Reports Karen Sokol North Atlantic Treaty Organization (NATO), Europe, Russia & Eurasia, Foreign Policy Institutions & Tools, International Law, Separation of Powers In 2023, Congress enacted a law that prohibits the President from “suspend[ing], terminat[ing], denounc[ing], or withdraw[ing] the United States from the North Atlantic Treaty”—which established the North Atlantic Treaty Organization (NATO)—without the advice and consent of the Senate or an act of Congress. See Section 1250A of the 2024 National Defense Authorization Act, Pub. L. No. 118-31. This provision emerged against the backdrop of debates concerning the United States’ policy toward NATO and whether the President possesses the power to withdraw the United States from treaties without receiving the legislative branch’s approval. Prior to Section 1250A’s enactment, the Department of Justice’s Office of Legal Counsel (OLC) published an opinion in 2020 concluding that the President has exclusive power over treaty withdrawal and that Congress is constitutionally prohibited from intruding upon this power. In contrast to the OLC’s legal position, which neither courts nor Congress are bound to consider as authoritative, Section 1250A’s sponsors stated that the legislation “ensures that no President can unilaterally dissolve our bond to this invaluable alliance without Senate approval.” If the President decided to unilaterally withdraw from the North Atlantic Treaty, irrespective of Section 1250A, there are at least two ways in which the statute might affect a court’s analysis of any challenge to the President’s action. First, the statute may influence a court’s decision on whether to hear such a challenge at all, and second, the statute could affect the court’s evaluation of the President’s action in the event it decides to hear a case. With respect to whether a court would hear a challenge, two doctrines are relevant: the political question doctrine and standing. Historically, courts have generally left the issue of the constitutional distribution of treaty-withdrawal power to the political branches, concluding that challenges to unilateral treaty withdrawal by the President present a nonjusticiable political question. See, e.g., Goldwater v. Carter, 444 U.S. 996, 1003 (1979). More recent Supreme Court jurisprudence suggests that courts may be less likely to dismiss a challenge to a President’s withdrawal from the North Atlantic Treaty in violation of Section 1250A on political question grounds. In a case involving another question of separation of foreign policy powers, the Court held that, where a President acts contrary to a statute on the ground that it interferes with the President’s Article II authority, the constitutional question is one properly resolved by the judiciary rather than left to the political branches. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). Another issue is who would have standing to bring a legal challenge to an alleged violation of Section 1250A. This doctrine may present greater hurdles than the political question doctrine, as it would ultimately depend on whether the plaintiff is able to allege that they suffered an injury that meets the standards the Supreme Court has established—i.e., that the injury is unique to them rather than shared by the general population, is sufficiently tied to the alleged violation, and is redressable by a court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992). In the past, courts have often found that plaintiffs, including Members of Congress, fail to meet one or more of these requirements in cases involving foreign policy issues, including that of treaty withdrawal. See, e.g., Kucinich v. Bush, 236 F. Supp. 2d 1, 18 (D.D.C. 2002). In the event that a court were to hear a challenge to a President’s unilateral withdrawal from the North Atlantic Treaty, it may likely apply the well-established framework for analyzing separation of powers issues derived from Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). If a court were to determine that a President’s withdrawal was contrary to a congressional prohibition, it may conclude that the action could be upheld only if the President has exclusive authority, a claim that the Youngstown framework instructs courts to “scrutinize[] with caution.” Zivotofsky ex rel. Zivotofsky v. Kerry 576 U.S. 1, 10 (2015). In assessing whether such authority exists, a court might draw on the Constitution’s text and structure as well as other relevant judicial precedent. Courts also often consider the historical practice of the political branches in separation of powers cases. See id. at 23. During the 19th century, the political branches often treated the treaty withdrawal power as a shared one in which both Congress and the President played a role. In the 20th century, the executive branch increasingly asserted independent authority to withdraw from treaties, and Congress periodically regulated U.S. participation in treaties. The executive branch does not appear to have asserted a claim of exclusive presidential authority until the 2020 OLC opinion, and Section 1250A appears to be the first statutory prohibition of unilateral presidential withdrawal from a treaty. Ultimately, given the absence of directly controlling judicial precedent, in a case challenging a Section 1250A violation, both parties would be able to present arguments in support of their positions. https://www.congress.gov/crs_external_products/R/PDF/R48868/R48868.3.pdf https://www.congress.gov/crs_external_products/R/HTML/R48868.html

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