Implementation of Standstill Agreement Pending Approval of ABM Treaty and ICBM Interim Agreement ( 1972 )

Implementation of Standstill Agreement Pending
Approval of ABM Treaty and ICBM Interim Agreement
The Standstill Agreement, made by the President with the Soviet Union pending congressional
approval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the
Arms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.
The President is not precluded by contract law or authorization and appropriations legislation passed by
Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the
arms control agreements pending their coming into force.
June 12, 1972
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This is in response to your oral request for our views concerning certain legal
aspects of the Standstill Agreement made with the Soviet Union pending approval
by the Congress and the Senate respectively of the Interim Agreement with the
USSR on Certain Measures with Respect to the Limitation of Strategic Offensive
Arms (“Interim Agreement”) and the Treaty with the USSR on the Limitation of
Anti-Ballistic Missile Systems (“ABM Treaty”).
Although we have not seen the text of the Standstill Agreement, we understand
that it is embodied in three documents which have been summarized in the
proposed transmittal papers to Congress as follows:
Both signatories understand that, pending ratification and accept-
ance, neither will take any action that would be prohibited by the
ABM Treaty and the Interim Agreement, in the absence of notifica-
tion by either signatory of its intention not to proceed with ratifica-
tion or acceptance.
The ABM Treaty is an agreement not to deploy Anti-Ballistic Missile Systems
except for the two described in Article III of the Treaty. The Interim Agreement
provides that the United States and the USSR undertake not to start construction of
additional fixed land-based intercontinental ballistic missile launchers after July 1,
1972; not to convert land-based launchers for light ICBMs into launchers for
heavy types; and to limit the number of missile launching submarines.
I.
The first question presented is whether the Standstill Agreement would violate
the proviso to section 33 of the Arms Control and Disarmament Act. Pub. L.
No. 87-297, § 33, 75 Stat. 631, 634 (1961), codified at 22 U.S.C. § 2573 (1970).
That proviso states:
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That no action shall be taken under this or any other law that will
obligate the United States to disarm or to reduce or to limit the
Armed Forces or armaments of the United States, except pursuant to
the treaty making power of the President under the Constitution or
unless authorized by further affirmative legislation by the Congress
of the United States.
We believe it reasonable to conclude that the Standstill Agreement does not violate
this proviso. A technical argument to the contrary could be made since it might be
said to be an obligation to limit the arms of the United States not implemented by
treaty or statute.
As indicated in our memorandum to you of June 7, 1972, the proviso to sec-
tion 33 was intended to prevent the President from acting on his own in making
arms limitation agreements. See, e.g., 107 Cong. Rec. 20,308–09 (1961). Here the
President is acting closely with the Congress and asking for its approval. On his
return after signing the ABM Treaty and the Interim Agreement, he stated to
Congress: “[W]e can undertake agreements as important as these only on a basis of
full partnership between the executive and legislative branches of our Govern-
ment.” Transcript of President Nixon’s Address to Congress on Meetings in
Moscow, N.Y. Times, June 2, 1972, at 12.
All that the Standstill Agreement seeks to do is to ensure that both the United
States and the USSR refrain from acts which would defeat the object and purpose
of the Treaty and the Interim Agreement, thus allowing them to be successfully
implemented. In doing so the parties are following a generally recognized
principle of international law—international agreements should be negotiated in
good faith and nothing should be done to undermine them pending their final
conclusion. This principle is codified in Article 18 of the Vienna Convention on
the Law of Treaties (which the United States has signed but has not yet ratified) as
follows:
A State is obligated to refrain from acts which would defeat the ob-
ject and purpose of a treaty when:
(a) It has signed the treaty . . . ; or
(b) It has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry into
force is not unduly delayed.
Vienna Convention on the Law of Treaties art. 18, opened for signature May 23,
1969, 1155 U.N.T.S. 331, 336 (entered into force Jan. 27, 1980).
This custom reflects certain eminently practical considerations. It would be
difficult to conclude a successful treaty or interim agreement in the arms control
area without an understanding as to what the relationship of the parties should be
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pending ratification or acceptance as the case may be; as a result, such understand-
ings, as here, are often reduced to writing. See George Bunn, Missile Limitation:
By Treaty or Otherwise?, 70 Colum. L. Rev. 1, 16 (1970).
It should be noted that the proviso does not state that all arms limitation agree-
ments must be made by treaty or statute. The phrase used in section 33 is “pursu-
ant to the treaty making power of the President under the Constitution” (emphasis
added). Although treaties can be made only by and with the advice and consent of
the Senate, it is the President alone who negotiates. The Treaty Clause therefore
confers on him certain independent powers. See Congressional Oversight of
Executive Agreements: Hearing Before the Subcomm. on Separation of Powers of
the S. Comm. on the Judiciary, 92d Cong. at 248–69 (May 18, 1972) (statement of
John R. Stevenson, Legal Adviser, Department of State). Under the treaty making
power of the President, certain “time-honored diplomatic devices [such] as the
‘protocol’ which marks a stage in the negotiation of a treaty, and the modus
vivendi, which is designed to serve as a temporary substitute for one,” are recog-
nized. The Constitution of the United States of America: Analysis and Interpreta-
tion, S. Doc. No. 88-39, at 485 (Edward S. Corwin et al. eds., 1964); see United
States v. Belmont, 301 U.S. 324, 330 (1937). It is the President’s duty in negotiat-
ing international agreements to preserve the effectiveness of the treaty making
power and to take care that our international obligations are met by arrangements
which are designed to preserve the integrity of more lasting arrangements. Cf.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
The Standstill Agreement is such a stage in negotiations seeking to preserve the
status quo and to meet our international obligations pending eventual congress-
ional approval. The Supreme Court has said on a number of occasions that “‘an act
of Congress ought never to be construed to violate the law of nations if any other
possible construction remains.’” McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10, 21 (1963) (quoting The Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804)). We conclude that the proviso to section 33 should not be read to
preclude such an arrangement.
II.
The second question put to us is whether, apart from the matter discussed
above, the President is legally precluded from directing the appropriate Executive
Branch agencies to abide by the provisions of the ABM Treaty and the Interim
Agreement pending their coming into force.
Specifically, this question involves the President’s authority to direct executive
agencies to take initial steps to terminate current contracts for construction and
procurement in projects covered by the ABM Treaty and the Interim Agreement.
We perceive two potential legal objections to this proposal. First, private con-
tractors may object to termination of their construction or procurement contracts
with the government for these projects as a matter of contract law. However, since
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we understand that all defense contracts are supposed to have termination-for-
convenience clauses, the government can simply terminate these contracts as
provided in the contracts. Even if this clause were omitted from a contract, the
government could still terminate and pay appropriate damages for breach of
contract. Thus, there is no insurmountable contractual hurdle in issuing a presiden-
tial suspension directive.
A second question involves the constitutional power of the President to termi-
nate projects provided for by authorization and appropriations legislation passed
by the Congress. This question in turn raises two subsidiary issues: (1) whether
this legislation grants discretion to the President in spending funds or is mandatory
in nature; and (2) if mandatory, whether the President possesses constitutional
authority to disregard the legislative mandate.
Since the President is under a constitutional obligation to “take Care that the
Laws be faithfully executed” (U.S. Const. art. II, § 3), the authorization and
appropriations legislation for each of the various projects scheduled for termina-
tion must be considered. Although we have not been informed of the specific
legislation applicable to the projects involved (except for the ABM installation
discussed below), the laws probably will be found to be permissive in nature if
they follow the pattern of most spending legislation, particularly defense appropri-
ations in recent years. As a general rule, appropriations acts “are of a fiscal and
permissive nature and do not in themselves impose upon the executive branch an
affirmative duty to expend the funds.” Federal-Aid Highway Act of 1956—Power
of President to Impound Funds, 42 Op. Att’y Gen. 347, 350 (1967) (Clark, A.G.)
(citing cases); see also McKay v. Cent. Elec. Power Coop., 223 F.2d 623, 625
(D.C. Cir. 1955).
One of the projects being considered for immediate termination is presumably
the Safeguard ABM installation at Malmstrom Air Force Base at Great Falls,
Montana. Secretary Laird recently directed the officials involved to suspend
construction at this site. In connection with this directive we have examined the
most recent authorization and appropriations legislation governing the Safeguard
site.1 Neither the language of the acts nor the legislative history indicate that
Congress intended the spending to be mandatory.
Even if some of the projects in question are, as a matter of statutory construc-
tion, interpreted as mandatory in nature, there may be constitutional authority for
the President’s refusal to expend additional funds. This Office has previously
advised that the President has authority to impound funds if their expenditure
would conflict with his powers and responsibilities as Commander in Chief and his
primary role in international relations. Whether Congress can force the President
to spend appropriated funds in these cases is not likely to be tested directly in any
1
Military Procurement Authorization Act, 1972, Pub. L. No. 92-156, 85 Stat. 423; Department of
Defense Appropriation Act, 1972, Pub. L. No. 92-204, 85 Stat. 716.
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event. Because this matter involves delicate questions concerning the separation of
powers between the two political branches of government, the Supreme Court has
not, nor is likely to, pass on this question. We believe, however, that the weight of
historical precedent indicates that the President possesses the power to impound
funds touching on the national defense and foreign relations.
Precedents for presidential impoundment in this area are numerous. In 1949, for
example, Congress voted to increase the Air Force from 48 to 58 groups. President
Truman signed the bill but directed the impoundment of the extra $614 million
appropriated. President Truman also cancelled the construction of an aircraft
carrier designed to carry nuclear bombers by exercising his power as Commander
in Chief to direct that strategic nuclear bombing be exclusively an Air Force
mission. And in 1956 the Defense Department declined to implement a congres-
sional appropriation earmarked for the construction of 20 superfort bombers.2
In this light, the suspension of further work on projects covered by the agree-
ments through the impounding of appropriated funds appears within the Presi-
dent’s constitutional powers, even if Congress did intend that a specific appropria-
tion should be mandatory.
RALPH E. ERICKSON
Assistant Attorney General
Office of Legal Counsel
2
These examples and others are discussed in the following articles: Frank Church, Impoundment of
Appropriated Funds: The Decline of Congressional Control over Executive Discretion, 22 Stan. L.
Rev. 1240, 1242–44 & nn. 21–22 (1970); Harry Kranz, A 20th Century Emancipation Proclamation:
Presidential Power Permits Withholding of Federal Funds from Segregated Institutions, 11 Am. U. L.
Rev. 48, 65 n.122 (1962); Arthur Selwyn Miller, Presidential Power to Impound Appropriated Funds:
An Exercise in Constitutional Decision-Making, 43 N.C.L. Rev. 502, 513 (1965).
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