On July 12, 2023, the U.S. Congress introduced and advanced a bipartisan resolution—S.J. Res. 37—designed to prevent the President from unilaterally withdrawing the United States from the North Atlantic Treaty (NATO). According to the text of the resolution, the President may not suspend, terminate, denounce, or withdraw the U.S. from NATO without either the advice and consent of two-thirds of the Senate or through an Act of Congress.
In December 2023, the U.S. Congress enacted a provision within the National Defense Authorization Act (NDAA) for Fiscal Year 2024 that limits the President’s ability to unilaterally withdraw the United States from the North Atlantic Treaty Organization (NATO).
Specifically, Section 1250A of the NDAA stipulates that the President cannot suspend, terminate, denounce, or withdraw U.S. membership from NATO without either the approval of two-thirds of the Senate or an act of Congress. Additionally, the law prohibits the use of any authorized funds to support such a withdrawal unless these conditions are met.
This legislative measure aims to reinforce the United States’ commitment to NATO and ensure that any significant changes to its membership are subject to legislative oversight.
For the full text of the National Defense Authorization Act for Fiscal Year 2024, you can visit the official page on Congress.gov: H.R.2670 – NDAA 2024.
It was a bipartisan initiative, led by Senators Tim Kaine (D-VA) and Marco Rubio (R-FL), aims to reinforce the United States’ commitment to the alliance and ensure that any significant changes to its membership are subject to legislative oversight .
However, legal experts have noted that the law may not be entirely foolproof. Some argue that the President might challenge the restriction by asserting constitutional authority over foreign policy matters, potentially leading to a legal dispute between the executive and legislative branches. The outcome of such a conflict would likely depend on judicial interpretation of the separation of powers and the extent of presidential authority in treaty matters .
While the 2023 legislation seeks to prevent a unilateral U.S. withdrawal from NATO, its effectiveness may ultimately hinge on constitutional interpretations and the willingness of the executive branch to adhere to the established legal framework.
However, this legislative move enters contested constitutional territory.
While Congress has asserted its authority through statute, the executive branch — particularly the Department of Justice’s Office of Legal Counsel (OLC) — has taken the position that treaty withdrawal is an exclusive presidential power, rooted in the President’s constitutional role in conducting foreign relations. In a 2020 OLC opinion, the executive branch argued that even statutory constraints on the President’s withdrawal authority are unconstitutional, as they infringe upon the President’s exclusive power to execute and terminate treaties. This position remains influential unless or until it is repudiated by a future administration or overruled by the courts.
To date, there is no definitive Supreme Court precedent resolving this conflict. The most relevant case, Goldwater v. Carter (1979), which challenged President Carter’s unilateral withdrawal from a mutual defense treaty with Taiwan, was dismissed without a ruling on the merits, with the Court deeming the issue a “political question” not suitable for judicial resolution. However, more recent jurisprudence suggests that courts may be more willing to adjudicate cases where a President is alleged to have violated an express statute — like Section 1250A — rather than disputes based solely on interbranch disagreement.
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