444 U.S. 996 (1979), decided 13 Dec. 1979 by vote of 6 to 3 (certiorari granted, vacated, and remanded with directions to dismiss the complaint); Rehnquist, Burger, Stewart, Powell, Stevens, and Marshall concurring, Brennan, White and Blackmun in dissent. Senator Barry Goldwater and other members of Congress challenged President Jimmy Carter's termination of the Mutual Defense Treaty with Taiwan without consulting or securing the prior approval of the Senate. Article II, section 2, clause 2 of the Constitution states that the president has the power to make treaties, provided that two-thirds of the Senate concur. However, the Constitution does not address the question of how a treaty may be abrogated.
The Supreme Court summarily reversed a court of appeals decision holding that the president had authority to terminate a treaty without congressional approval. Justice William Rehnquist, in a concurring opinion joined by Chief Justice Warren Burger and Justices Potter Stewart and John Paul Stevens, argued that this was a nonjusticiable political question because it involved the “authority of the President in the conduct of our country's foreign relations … specifically a treaty commitment to use military force in the defense of a foreign government if attacked” (pp. 1002–1004). The Court was “asked to settle a dispute between coequal branches of government, each of which has resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum” (p. 1004). Justice Lewis Powell concurred separately, arguing that the issue was not “ripe” for judicial decision since Congress had not yet confronted the president about the treaty.
In dissent, Justice William Brennan argued that the political question doctrine does not apply when the Court merely examines whether a particular branch has been “constitutionally designated as the repository of political decision-making power” (p. 1007). This was a constitutional law question, he said, that falls within the competency of the courts. Addressing the merits of the case, Brennan argued that since abrogation of the Taiwan Defense Treaty was related to the president's decision to recognize the government of mainland China, and since the president alone has the power to recognize foreign governments, he had the authority to abrogate the treaty.
Joel B. Grossman