OLC: Congressional Notice Period Prior to Withdrawing from Treaty Unconstitutional [May 18, 2021] [open pdf - 669KB]
From the Document: "On May 22, 2020, Secretary of State Mike Pompeo announced [hyperlink] the United States' intent to withdraw from the multilateral Treaty on Open Skies [hyperlink] (Open Skies Treaty), an arms control treaty permitting parties to fly over each other's territories for security surveillance purposes, to the treaty's parties. But a provision [hyperlink] of the National Defense Authorization Act for FY2020 [hyperlink] (FY2020 NDAA) required the Secretary to provide Congress at least 120-day notice before officially notifying parties to the treaty that the United States intended to exercise its right to withdraw under Article XV of the treaty. The Trump Administration disregarded the 120-day FY2020 NDAA notification requirement, however, based on advice [hyperlink] from the Office of Legal Counsel (OLC) at the Department of Justice (DOJ) that the FY2020 NDAA provision unconstitutionally intruded into presidential prerogatives to execute treaties and conduct diplomacy. Withdrawal from the Open Skies Treaty became final [hyperlink] on November 22, 2020. OLC released its full opinion [hyperlink] on the provision in December 2020. This Legal Sidebar discusses the NDAA provision, summarizes the OLC opinion, and suggests issues for Congress to consider."
CRS Legal Sidebar, LSB10600
Congressional Research Service: https://crsreports.congress.gov/