on his own, as, indeed, many Presidents have done, then a fortiori he can terminate defense treaties. Plaintiffs suggest that because treaties are "the supreme Law of the Land" (Const., Art. VI) they can be terminated or "repealed" only with the participation of the Congress. Nothing in Article VI supports that conclusion. Indeed, what plaintiffs have done is to confuse the process of making and unmaking treaties, which is governed by Article II of the Constitution, with a treaty's substantive effect for domestic law purposes, governed by Article VI. This case, of course, presents a question of process and not of substantive application. As we have detailed at length, supra pp. 24-25, the treaty making and termination process differs sharply from the process accompanying enactment of legislation, most notably because the President retains final authority to make or not to make a treaty, but legislation can be enacted over the President's veto. Even with respect to the substantively binding nature of treaties for domestic law purposes, the analogy to legislation in this case is limited. It is incontestible that a treaty is "the Supreme Law of the Land" and, thus, supersedes state law (see Missouri v. Holland, 252 U.S. 416 (1920)) and prior inconsistent federal statutes (see United States v. Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801)). But the Mutual Defense Treaty is not self-executing. Its provisions are not capable of being applied directly as applied law by any court in the United States, and it would not *7 The classic definition of the non-self-executing treaty is that of Chief Justice Marshall, who observed in Foster v. Neilson, 27 U.S. (2 Peters) 253, 313-314 (1829): (cont'd) - 41 - be regarded in United States' courts as equivalent to an act of the Congress or any other law enforceable by the judicial branch. In addition, since the Mutual Defense Treaty involves only the United States' foreign military relationships, it created no domestic law private rights whatever. The "law" terminated in this case is not analogous to domestic law statutes for this reason as well. In view of these special characteristics of the Mutual Defense Treaty, the Court need not address itself to the breadth of the President's treaty termination powers. While we believe defendants have demonstrated overwhelming support for an expansive Executive role in this area, the particular facts of this case provide an especially compelling basis for upholding President Carter's action. */(continued from page 41) A treaty is, in its nature, a contract regarded in courts of justice as equiva- B. Plaintiffs' Allegations Regarding Section 26 Of The International Security Assistance Act of 1978 Fail To State A Claim For Relief. In addition to their constitutional claims, plaintiffs imply that termination of the Mutual Defense Treaty by the President violates Section 26 of the International Security Assistance Act. That legislation does not purport to limit the President's treaty termination power and, in any event, is without mandatory force. For this reason too, the Amended Complaint fails to state a claim on which relief can be granted. Section 26 (the Dole-Stone Amendment) states: Sec. 26. (a) The Congress finds that -- (2) the United States and the (3) the Republic of China has during (4) it is the responsibility of the (b) It is the sense of the Congress Nothing in that language puts into question the President's power to terminate the Mutual Defense Treaty. Senator Goldwater, in effect, acknowledged that in the course of the Senate debate on the amendment when he stated: Mr. President, let me clarify that Indeed, the choice of the "sense of the Congress" format **/ */ Plaintiff Goldwater has expressed his view that "sense of the Congress" provisions are not mandatory in testimony before the Senate Foreign Relations Committee by indicating his preference that the War Powers Resolution be "stripped of all its mandatory provisions and replaced with a Sense of the Congress' declaration." Hearings on the War Powers Resolution, supra, at p. 19. It should be noted, also, that when the Senate considered and voted on the "Dole-Stone Amendment," it was not even intended to be a "sense of the Congress" statute, but instead a "sense of the Senate" resolution to the Executive Branch. 124 Cong. Rec. S.11713 (daily ed. July 25, 1978). This format makes it apparent that this expression of sentiment was not intended to bind the President in the way now implicitly urged by the plaintiffs. **/ The consultations language proposed by Senators Dole and Stone would have stated: (b) It is the sense of the Senate that consultation with the Senate. [Emphasis In order to avoid what Senator Dole admitted would have been a sharply divided vote and possible defeat of the amendment, 124 Cong. Rec. S.11727 (daily ed. July 25, 1978), the sponsors acceded to substitute language which makes clear that the Amendment was not intended to set up a mandatory precondition to treaty termination. The substitute language, which was essentially identical to the final version except that references to the Senate were later changed to refer to Congress as a whole, read as follows: (cont'd) 43-968 - 79 - 10 evidences a clear Congressional intent not to hamper the President's flexibility in conducting delicate negotiations with foreign powers and taking appropriate action as the representative of the United States in foreign affairs. In any case, prior consultations between the Congress and the Executive Branch regarding the termination of the Mutual Defense Treaty did, in fact, occur in the manner contemplated by the Amendment. The type of consultations envisioned was described by Senator Kennedy directly before the Senate voted upon the Amendment: I think the key understanding represented The Declaration of Richard Holbrooke, Assistant Secretary of (continued from page 44) (b) It is the sense of the Senate that treaty cited above. [Emphasis added]. 45 |