MR. JUSTICE MARSHALL concurs in the result.
MR. JUSTICE POWELL concurs in the judgment,
Page 444 U. S. 997
and has filed a statement.
MR. JUSTICE REHNQUIST concurs in the judgment and has filed a
statement in which MR. CHIEF JUSTICE BURGER, MR. JUSTICE STEWART,
and MR. JUSTICE STEVENS join.
MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN join in the grant of
the petition for a writ of certiorari, but would set the case for
argument and give it plenary consideration. MR. JUSTICE BLACKMUN
has filed a statement in which MR. JUSTICE WHITE joins.
MR. JUSTICE BRENNAN would grant the petition for certiorari and
affirm the judgment of the Court of Appeals, and has filed a
MR. JUSTICE POWELL, concurring.
In this case, a few Members of Congress claim that the
President's action in terminating the treaty with Taiwan has
deprived them of their constitutional role with respect to
Page 444 U. S. 998
a change in the supreme law of the land. Congress has taken no
official action. In the present posture of this case, we do not
know whether there ever will be an actual confrontation between the
Legislative and Executive Branches. Although the Senate has
considered a resolution declaring that Senate approval is necessary
for the termination of any mutual defense treaty, see
Cong.Rec. S7015, S7038-S7039 (June 6, 1979), no final vote has been
taken on the resolution. See id.
at S16683-S16692 (Nov.
15, 1979). Moreover, it is unclear whether the resolution would
have retroactive effect. See id.
at S7054-S7064 (June 6,
at S7862 (June 18, 1979). It cannot be said
that either the Senate or the House has rejected the President's
claim. If the Congress chooses not to confront the President, it is
not our task to do so. I therefore concur in the dismissal of this
MR. JUSTICE REHNQUIST suggests, however, that the issue
presented by this case is a nonjusticiable political question which
can never be considered by this Court. I cannot agree. In my view,
reliance upon the political question doctrine is inconsistent with
our precedents. As set forth in the seminal case of Baker v.
Carr, 369 U. S. 186
369 U. S. 217
(1962), the doctrine incorporates three inquiries: (i) does the
issue involve resolution of questions committed by the text of the
Constitution to a coordinate branch of Government? (ii) would
resolution of the question demand that a court move beyond areas of
judicial expertise? (iii) do prudential considerations counsel
against judicial intervention? In my opinion the answer to each of
these inquiries would require us to decide this case if it were
ready for review.
First, the existence of "a textually demonstrable constitutional
commitment of the issue to a coordinate political department,"
turns on an examination of the constitutional
provisions governing the exercise of the power in question.
Page 444 U. S. 999
Powell v. McCormack, 395 U. S. 486
395 U. S. 519
(1969). No constitutional provision explicitly confers upon the
President the power to terminate treaties. Further, Art. II, § 2,
of the Constitution authorizes the President to make treaties with
the advice and consent of the Senate. Article VI provides that
treaties shall be a part of the supreme law of the land. These
provisions add support to the view that the text of the
Constitution does not unquestionably commit the power to terminate
treaties to the President alone. Cf. Gilligan v. Morgan,
413 U. S. 1
413 U. S. 6
(1973); Luther v.
7 How. 1, 48 U. S. 42
Second, there is no "lack of judicially discoverable and
manageable standards for resolving" this case; nor is a decision
impossible "without an initial policy determination of a kind
clearly for nonjudicial discretion." Baker v. Carr, supra,
at 369 U. S. 217
We are asked to decide whether the President may terminate a treaty
under the Constitution without congressional approval. Resolution
of the question may not be easy, but it only requires us to apply
normal principles of interpretation to the constitutional
provisions at issue. See Powell v. McCormack, supra,
395 U. S.
-549. The present case involves neither review of the
President's activities as Commander in Chief nor impermissible
interference in the field of foreign affairs. Such a case would
arise if we were asked to decide, for example, whether a treaty
required the President to order troops into a foreign country. But
"it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance."
Baker v. Carr, supra,
at 369 U. S. 211
This case "touches" foreign relations, but the question presented
to us concerns only the constitutional division of power between
Congress and the President.
A simple hypothetical demonstrates the confusion that I find
inherent in MR. JUSTICE REHNQUIST's opinion concurring in the
judgment. Assume that the President signed a mutual defense treaty
with a foreign country and announced that it
Page 444 U. S. 1000
would go into effect despite its rejection by the Senate. Under
MR. JUSTICE REHNQUIST's analysis, that situation would present a
political question even though Art. II, § 2, clearly would resolve
the dispute. Although the answer to the hypothetical case seems
self-evident because it demands textual, rather than interstitial,
analysis, the nature of the legal issue presented is no different
from the issue presented in the case before us. In both cases, the
Court would interpret the Constitution to decide whether
congressional approval is necessary to give a Presidential decision
on the validity of a treaty the force of law. Such an inquiry
demands no special competence or information beyond the reach of
the Judiciary. Cf. Chicago & Southern Air Lines v. Waterman
S.S. Corp., 333 U. S. 103
333 U. S. 111
(1948). [Footnote 1
Finally, the political question doctrine rests in part on
prudential concerns calling for mutual respect among the three
branches of Government. Thus, the Judicial Branch should avoid "the
potentiality of embarrassment [that would result] from multifarious
pronouncements by various departments on one question." Similarly,
the doctrine restrains judicial action where there is an "unusual
need for unquestioning adherence to a political decision already
made." Baker v. Carr, supra,
at 369 U. S.
If this case were ripe for judicial review, see
none of these prudential considerations would be
Page 444 U. S. 1001
Interpretation of the Constitution does not imply lack of
respect for a coordinate branch. Powell v. McCormack,
at 395 U. S. 548
If the President and the Congress had reached irreconcilable
positions, final disposition of the question presented by this case
would eliminate, rather than create, multiple constitutional
interpretations. The specter of the Federal Government brought to a
halt because of the mutual intransigence of the President and the
Congress would require this Court to provide a resolution pursuant
to our duty "to say what the law is.'" United States v.
Nixon, 418 U. S. 683,
418 U. S. 703
(1974), quoting Marbury v.
Madison, 1 Cranch 137, 5 U. S. 177
In my view, the suggestion that this case presents a political
question is incompatible with this Court's willingness on previous
occasions to decide whether one branch of our Government has
impinged upon the power of another. See Buckley v. Valeo,
424 U.S. at 424 U. S. 138
United States v. Nixon, supra,
at 418 U. S. 707
The Pocket Veto Case, 279 U. S. 655
279 U. S.
-678 (1929); Myers v. United States,
272 U. S. 52
(1926). [Footnote 2
Page 444 U. S. 1002
criteria enunciated in Baker v. Carr,
we have the
responsibility to decide whether both the Executive and Legislative
Branches have constitutional roles to play in termination of a
treaty. If the Congress, by appropriate formal action, had
challenged the President's authority to terminate the treaty with
Taiwan, the resulting uncertainty could have serious consequences
for our country. In that situation, it would be the duty of this
Court to resolve the issue.
The Court has recognized that, in the area of foreign policy,
Congress may leave the President with wide discretion that
otherwise might run afoul of the nondelegation doctrine. United
States v. Curtiss-Wright Export Corp., 299 U.
(1936). As stated in that case,
"the President alone has the power to speak or listen as a
representative of the Nation. He makes
treaties with the
advice and consent of the Senate; but he alone negotiates."
at 299 U. S. 319
(emphasis in original). Resolution of this case would interfere
with neither the President's ability to negotiate treaties nor his
duty to execute their provisions. We are merely being asked to
decide whether a treaty, which cannot be ratified without Senate
approval, continues in effect until the Senate or perhaps the
Congress take further action.
Coleman v. Miller, 307 U. S. 433
(1939), is not relevant here. In that case, the Court was asked to
review the legitimacy of a State's ratification of a constitutional
amendment. Four Members of the Court stated that Congress has
exclusive power over the ratification process. Id.
307 U. S.
-460 (Black, J., concurring, joined by Roberts,
Frankfurter, and Douglas, JJ.). Three Members of the Court
concluded more narrowly that the Court could not pass upon the
efficacy of state ratification. They also found no standards by
which the Court could fix a reasonable time for the ratification of
a proposed amendment. Id.
at 307 U. S.
The proposed constitutional amendment at issue in
would have overruled decisions of this Court.
at 307 U. S. 435
n. 1, with Child Labor Tax Case, 259 U. S.
(1922); Hammer v. Dagenhart, 247 U.
(1918). Thus, judicial review of the legitimacy
of a State's ratification would have compelled this Court to
oversee the very constitutional process used to reverse Supreme
Court decisions. In such circumstances, it may be entirely
appropriate for the Judicial Branch of Government to step aside.
Scharpf, Judicial Review and The Political Question: A
Functional Analysis, 75 Yale L.J. 517, 589 (1966). The present case
involves no similar principle of judicial nonintervention.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE STEVENS join, concurring in the
I am of the view that the basic question presented by the
petitioners in this case is "political," and therefore
nonjusticiable because 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. In Coleman v. Miller, 307 U.
(1939), a case in which members of the Kansas
Legislature brought an action attacking a vote of the State Senate
in favor of the ratification of the Child Labor Amendment, Mr.
Chief Justice Hughes wrote in what is referred to as the "Opinion
of the Court":
"We think that . . . the question of the efficacy of
ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a
political question pertaining to the political departments, with
the ultimate authority in the Congress in the exercise of its
control over the promulgation of the adoption of the
"The precise question as now raised is whether, when the
legislature of the State, as we have found, has actually ratified
the proposed amendment, the Court should
Page 444 U. S. 1003
restrain the state officers from certifying the ratification to
the Secretary of State, because of an earlier rejection, and thus
prevent the question from coming before the political departments.
We find no basis in either Constitution or statute for such
judicial action. Article V, speaking solely of ratification,
contains no provision as to rejection. . . ."
at 307 U. S.
Thus, Mr. Chief Justice Hughes' opinion concluded that
"Congress, in controlling the promulgation of the adoption of a
constitutional amendment, has the final determination of the
question whether, by lapse of time, its proposal of the amendment
had lost its vitality prior to the required ratifications."
at 307 U. S.
I believe it follows a fortiori
that the controversy in the instant case is a nonjusticiable
political dispute that should be left for resolution by the
Executive and Legislative Branches of the Government. Here, 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 this
respect, the case is directly analogous to Coleman, supra.
As stated in Dyer v. Blair, 390
F. Supp. 1291
, 1302 (N.D.Ill.1975) (three-judge court):
"A question that might be answered in different ways for
different amendments must surely be controlled by political
standards, rather than standards easily characterized as judicially
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
(see, e.g., 444
fn2/1|>n. 1, infra
), the instant case, in
my view, also "must surely be controlled by political
I think that the justifications for concluding that the question
here is political in nature are even more compelling than in
because it involves foreign relations --
Page 444 U. S. 1004
a treaty commitment to use military force in the defense of a
foreign government if attacked. In United States v.
Curtiss-Wright Corp., 299 U. S. 304
(1936), this Court said:
"Whether, if the Joint Resolution had related solely to internal
affairs, it would be open to the challenge that it constituted an
unlawful delegation of legislative power to the Executive we find
it unnecessary to determine. The whole aim of the resolution is to
affect a situation entirely external to the United States, and
falling within the category of foreign affairs. . . ."
at 299 U. S.
The present case differs in several important respects from
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
(1952), cited by petitioners as authority both
for reaching the merits of this dispute and for reversing the Court
of Appeals. In Youngstown,
private litigants brought a
suit contesting the President's authority under his war powers to
seize the Nation's steel industry, an action of profound and
demonstrable domestic impact. Here, by contrast, we are asked to
settle a dispute between coequal branches of our Government, each
of which has resources available to protect and assert its
interests, resources not available to private litigants outside the
judicial forum. [Footnote 2/1
Moreover, as in Curtiss-Wright,
Page 444 U. S. 1005
effect of this action, as far as we can tell, is "entirely
external to the United States, and [falls] within the category of
foreign affairs." Finally, as already noted, the situation
presented here is closely akin to that presented in
where the Constitution spoke only to the
procedure for ratification of an amendment, not to its
Having decided that the question presented in this action is
nonjusticiable, I believe that the appropriate disposition is for
this Court to vacate the decision of the Court of Appeals and
remand with instructions for the District Court to dismiss the
complaint. This procedure derives support from our practice in
disposing of moot actions in federal courts. [Footnote 2/2
] For more than 30 years, we have instructed
lower courts to vacate any decision on the merits of an action that
has become moot prior to a resolution of the case in this Court.
United States v. Munsingwear, Inc., 340 U. S.
(1950). The Court has required such decisions to be
vacated in order to "prevent a judgment, unreviewable because of
mootness, from spawning any legal consequences." Id.
340 U. S. 41
is even more imperative that this Court invoke this procedure to
ensure that resolution of a "political question," which should not
have been decided by a lower court, does not "spawn any legal
consequences." An Art. III court's resolution of a question that is
"political" in character can create far more disruption
Page 444 U. S. 1006
among the three coequal branches of Government than the
resolution of a question presented in a moot controversy. Since the
political nature of the questions presented should have precluded
the lower courts from considering or deciding the merits of the
controversy, the prior proceedings in the federal courts must be
vacated, and the complaint dismissed.
As observed by Chief Judge Wright in his concurring opinion
"Congress has initiated the termination of treaties by directing
or requiring the President to give notice of termination, without
any prior presidential request. Congress has annulled treaties
without any presidential notice. It has conferred on the President
the power to terminate a particular treaty, and it has enacted
statutes practically nullifying the domestic effects of a treaty
and thus caused the President to carry out termination. . . ."
"Moreover, Congress has a variety of powerful tools for
influencing foreign policy decisions that bear on treaty matters.
Under Article I, Section 8 of the Constitution, it can regulate
commerce with foreign nations, raise and support armies, and
declare war. It has power over the appointment of ambassadors and
the funding of embassies and consulates. Congress thus retains a
strong influence over the President's conduct in treaty
"As our political history demonstrates, treaty creation and
termination are complex phenomena rooted in the dynamic
relationship between the two political branches of our government.
We thus should decline the invitation to set in concrete a
particular constitutionally acceptable arrangement by which the
President and Congress are to share treaty termination."
App. to Pet. for Cert. 44A-45A (footnotes omitted).
This Court, of course, may not prohibit state courts from
deciding political questions, any more than it may prohibit them
from deciding questions that are moot, Doremus v. Board of
Education, 342 U. S. 429
342 U. S. 434
(1952), so long as they do not trench upon exclusively federal
questions of foreign policy. Zschernig v. Miller,
389 U. S. 429
389 U. S. 441
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins,
dissenting in part.
In my view, the time factor and its importance are illusory; if
the President does not have the power to terminate the treaty (a
substantial issue that we should address only after briefing and
oral argument), the notice of intention to terminate surely has no
legal effect. It is also indefensible, without further study, to
pass on the issue of justiciability or on the issues of standing or
ripeness. While I therefore join in the grant of the petition for
certiorari, I would set the case for oral argument and give it the
plenary consideration it so obviously deserves.
MR. JUSTICE BRENNAN, dissenting.
I respectfully dissent from the order directing the District
Court to dismiss this case, and would affirm the judgment of the
Court of Appeals insofar as it rests upon the President's well
established authority to recognize, and withdraw recognition from,
foreign governments. App. to Pet. for Cert. 27A-29A.
In stating that this case presents a nonjusticiable "political
question," MR. JUSTICE REHNQUIST, in my view, profoundly
misapprehends the political question principle as it applies to
matters of foreign relations. Properly understood, the political
question doctrine restrains courts from reviewing an exercise of
foreign policy judgment by the coordinate political branch to which
authority to make that judgment has been "constitutional[ly]
commit[ted]." Baker v.
Page 444 U. S. 1007
186, 369 U. S.
-213 (1962). But the doctrine does not pertain when a
court is faced with the antecedent question whether a particular
branch has been constitutionally designated as the repository of
political decisionmaking power. Cf. Powell v. McCormack,
395 U. S. 486
395 U. S.
-521 (1969). The issue of decisionmaking authority
must be resolved as a matter of constitutional law, not political
discretion; accordingly, it falls within the competence of the
The constitutional question raised here is prudently answered in
narrow terms. Abrogation of the defense treaty with Taiwan was a
necessary incident to Executive recognition of the Peking
Government, because the defense treaty was predicated upon the
now-abandoned view that the Taiwan Government was the only
legitimate political authority in China. Our cases firmly establish
that the Constitution commits to the President alone the power to
recognize, and withdraw recognition from, foreign regimes. See
Banco Nacional de Cuba v. Sabbatino, 376 U.
, 376 U. S. 410
(1964); Baker v. Carr, supra,
at 369 U. S. 212
United States v. Pink, 315 U. S. 203
315 U. S.
-230 (1942). That mandate being clear, our judicial
inquiry into the treaty rupture can go no further. See Baker v.
at 369 U. S. 212
United States v. Pink, supra,
at 315 U. S.