President's Unilateral Termination of the Taiwan Treaty
![handle is hein.journals/illlr75 and id is 587 raw text is: Copyright 1980 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 75, No. 4
THE PRESIDENT'S UNILATERAL
TERMINATION OF THE
TAIWAN TREATY
Raoul Berger*
I cannot be brought to believe that this country will suffer if the Court refuses
further to aggrandize the presidential office, already so potent ....
Justice Robert H. Jackson t
The long overdue rapprochement with mainland China required a
sacrifice-our mutual defense treaty with Taiwan. President Carter
terminated the treaty without consulting the Senate or the Congress,
inferably because a substantial body of public opinion, which could
make itself heard in Congress, opposed the termination.' His insistence
on his right to do so is but another step in the Executive's unremitting
drive for a monopoly of foreign affairs.2 The gravity of the constitu-
tional issue touched off the most important discussion of the treaty
termination power in the constitutional history of the Nation.'3
The termination issue reached the courts for the first time in Gold-
water v. Carter;4 United States District Court Judge Oliver Gasch set
the termination aside as unconstitutional for lack of Senate or congres-
sional participation; his decision was overturned in a per curiam opin-
ion by the United States Court of Appeals for the District of Columbia
Circuit;5 and the Supreme Court rid itself of the problem by vacating
the judgment on quasi-jurisdictional grounds: four of the Justices held
* Charles Warren Senior Fellow in American Legal History, Emeritus, Harvard Law School.
t Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952).
1 See REPORT OF THE SENATE COMM. ON FOREIGN RELATIONS ON S. RES. 15, S. REP. No.
96-119, 96th Cong., 1st Sess. 9 (1979) [hereinafter cited as SENATE REPORT). The Committee
stated, Public understanding and confidence in our foreign policy would not be enhanced where
the perception becomes widespread that the President claims authority to act alone because his
policy would not command the support of a majority in the Congress. Id.
For the provisions of the treaty, see Mutual Defense Treaty, Dec. 2, 1954, United States-
Republic of China, 6 U.S.T. 433, T.I.A.S. No. 3178, 248 U.N.T.S. 213.
2 See Berger, The Presidential Monopoly of Foreign Relations, 71 MICH. L. REv. 1 (1972)
[hereinafter cited as Berger, Presidential Monopoly]; Appendix I, Executive Agreements, infra.
3 Treaty Termination. Hearings on S. Res. 15 Before the Senate Com, on Foreign Relations,
96th Cong., 1st Sess. 409 (1979) (statement of Professor John Norton Moore) [hereinafter cited as
Hearings].
4 481 F. Supp. 949 (D.D.C.), rev'd, 617 F.2d 697 (D.C. Cir.) (en banc) (per curiam), vacated
and remanded with instructions to dismiss, 444 U.S. 996 (1979).
5 617 F.2d at 709.](ViewImageLocal?handle=hein.journals/illlr75&div=27&collection=&method=preview&ext=.png&size=3)
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President's Unilateral Termination of the Taiwan Treaty
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