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TODAY'S HEADLINES (click to jump there; use your browser's "Back" button to return here)
      •  Cohen Postpones Testimony Due to Trump's Threats
      •  Trump Announces He Will Deliver the SOTU Speech as Planned—Or Not
      •  Buttigieg Is In
      •  The Conservative Take on the Democratic 2020 Primaries
      •  Kansas Republicans Are Scared of Kobach
      •  Why Is There No Liberal Federalist Society?
      •  Judge May End Stormy Daniels Lawsuit
      •  Thursday Q&A

Cohen Postpones Testimony Due to Trump's Threats

Yesterday, Michael Cohen's lawyer dropped a bombshell: His client wants to postpone his scheduled Feb. 7 testimony before the House Government Oversight Committee chaired by Rep. Elijah Cummings (D-MD), due to threats against his family from Donald Trump. The lawyer, Lanny Davis, is effectively accusing Trump of witness tampering, a federal crime. Specifically, Davis said: "The president has terrorized someone who wanted to tell the truth before Congress."

Cummings didn't formally issue a subpoena, so Cohen is not in legal trouble due to postponing his testimony, but obviously Cummings could now choose to do so. The chairman of the House Intelligence Committee, Adam Schiff, also wants Cohen to testify. If either or both of these chairmen were to issue subpoenas, Cohen would have to either comply and face the consequences from Trump or else refuse and face the consequences from Congress.

Cohen is not imagining things, incidentally. For the last month or so, Trump has vaguely hinted on Twitter that his former fixer committed some serious non-Trump-related crimes. This weekend, Trump's TV lawyer Rudy Giuliani came out and said that Cohen's father-in-law, Fima Shusterman, "may have ties to something called organized crime." To expert observers, this looks a lot like an effort to intimidate a witness by publicly smearing them. On top of that, because Trump happens to be president, his remarks carry the implied threat of a Justice Dept. investigation of Cohen or his father-in-law (or both).

If the House gets around to impeaching Trump, it is very likely that intimidating someone scheduled to testify before Congress would fall under "high crimes and misdemeanors." Specifically, it would likely be obstruction of justice (in case the President didn't already have enough trouble on that front). If Trump had asked his non-TV lawyers about the advisability of threatening Cohen and his family and doing it in the most public way possible, they probably wouldn't be big fans of the idea. But he hit the "tweet" button before he hit the "ask" button. (V & Z)

Trump Announces He Will Deliver the SOTU Speech as Planned—Or Not

Donald Trump decided to play a game of chicken with Speaker Nancy Pelosi. Despite Pelosi's warning to Trump that he is not welcome to give the State of the Union Speech on the House floor on Jan. 29 unless the shutdown is over, the President announced he would do it anyway. Saying that he would give the speech was a bold move, but a dangerous one. Formally, he hasn't been invited yet and that won't happen unless both chambers of Congress sign off. The Senate will be happy to do it if he asks, but there is no way the House will do it absent an end to the shutdown (or, at least, a pretty big concession from him).

Pelosi quickly responded by sending Trump a letter telling him point blank that he is not going to be invited until the government is reopened:

Pelosi letter

Pelosi holds all the cards here. By law, the president may enter the House chamber at any time it is in session, but the speaker determines when it is in session. If she wants, she can recess the House at 4 p.m. next Tuesday and instruct the sergeant-at-arms to turn off the lights and heat and then bolt the door. Trump would look like a fool if he were to show up, with the media in tow, and be confronted with a locked door and no one present. She also has control over C-SPAN, and could order it to turn off the cameras if he forces his way into the chamber and starts speaking, making sure that no one would see the speech in real time. Some Republican members of Congress could record it on their phones and post it later, but that doesn't exactly have the pageantry that Trump craves.

Unlike the government shutdown, which can run until one side or both get tired of it, there is a specific deadline here. If the SOTU happens on January 29 in the House Chamber, Trump wins. If it does not, Pelosi wins. Trump made his announcement thinking that Pelosi was bluffing, and that he could bully her into backing down. Bullying his opponents has worked his entire life, so why not now? But he has never encountered an opponent as tough as Pelosi before and certainly not one who holds actual power over him.

In theory, Trump could deliver his speech from the Oval Office rather than from the floor of the House. However, he isn't very good at that kind of speech, and he would miss the raucous applause from Republican members of Congress. Having to play the game according to Pelosi's rules would also make him very angry, and the speech could show it and be quite unpresidential, drawing poor reviews the day after.

Alternatively, numerous Republican members of Congress suggested that Trump deliver the speech from their state or district. Minority Whip Steve Scalise (R-LA) offered up the Superdome in New Orleans. Rep. Rodney Davis (R-IL) suggested the Old State Capitol in Springfield, IL, where Abraham Lincoln gave his "House Divided" speech. Of course, the Constitution says that the president shall inform Congress about the state of the union. It doesn't say he shall inform his base about it, so it is not clear that a speech in Louisiana would count unless he had it recorded and then sent Pelosi a USB stick containing a video of it. But there isn't much pageantry in that, either.

Anyhow, it would seem that Trump spent the day on Wednesday considering the situation, and concluded that Pelosi is not going to back down, and that the alternatives to the House chamber are not so appealing. Or, maybe someone got to him and caused him to see the light. Whatever the case may be, he folded like an accordion Wednesday evening, and said he won't give the SOTU until the government reopens. Inasmuch as the administration has asked agencies for contingency plans if the shutdown lingers into March, it could be a while before he gets to speak. Meanwhile, one wonders what he accomplished by blustering for six hours and then surrendering. Well, actually, what he accomplished was to remind Pelosi and the Democrats that if they stand up to him, he will crumble. (V & Z)

Buttigieg Is In

We are now going to find out if a barely eligible, openly gay Democrat with a name nobody can pronounce can be a viable presidential candidate in a field with 20 other wannabe presidents. The mayor of South Bend, IN, Pete Buttigieg (37) threw his hat in the ring yesterday. In his announcement, Buttigieg emphasized the need to look forward rather than look back (take that Bernie, Elizabeth, and Joe) and who but a millennial could better do that?

On paper, he has some things going for him, including having been a naval intelligence officer in Iraq. His age might become an issue, but Alexandria Ocasio-Cortez (29) has made everyone sit up and take notice, even though she won't be eligible to run for president until 2024. No Democrat will dare say a word about his being openly gay (and married to a man), but expect to hear about his "electability" issues as a proxy for that. Probably his biggest hill to climb is his name. It is hard to remember and easy to mispronounce. The last time a name was a big issue in an election was the 2010 reelection campaign of Sen. Lisa Murkowski (R-AK). She lost her primary to right-wing firebrand Joe Miller but then launched a write-in campaign, the hardest part of which was getting people to learn to spell her name. She ran ads like this to help people.

Murkowski ad

We dare not think what Buttigieg's signage might be like to get people to remember and pronounce his name correctly. However, in such a crowded field, he is the longest of long shots, and for millennials who really want someone in their cohort, there is Tulsi Gabbard, who is also 37, and has an easier name to remember. (V)

The Conservative Take on the Democratic 2020 Primaries

The horse race for president is on, with new candidates announcing every few days now (see above). Various media outlets are already in the handicapping business. One interesting outlet that is really in a bind is The Bulwark, which is basically The Weekly Standard v2.0. It was started by some of the people involved in the original until it was suddenly shut down. These are principled conservative Republicans who despise Donald Trump and also dislike all Democrats (well, maybe West Virginia senator Joe Manchin gets a pass). Unless Gov. Larry Hogan (R-MD) or former Ohio governor John Kasich steps up to the plate, The Bulwarkers don't really have a horse in the race. Nevertheless, it is interesting to see their initial rankings of the top 10 in the Democratic field, from most likely to least likely :

  1. Bernie Sanders: He almost single-handedly moved the Democratic Party to the left and is now positioned in the middle of it in terms of economics and foreign policy. His closest competitors in his "lane" are Beto O'Rourke (who is much more moderate than he is) and Elizabeth Warren (who is not a giant ball of charisma). If he runs, he will be tough to beat.

  2. Kamala Harris: She's smart and tough minded. Some suburban women may see themselves more in her than in Warren and Amy Klobuchar. But right now she has nothing to differentiate herself from the crowd. There is not a ton of electricity around her, as there is around O'Rourke. And doing badly in the first two (very white) states, Iowa, and New Hampshire, won't burnish her image.

  3. Beto O'Rourke: Does celebrity status now trump everything? If so, it's Beto's to lose. But his voting record in the House is anything but liberal and he has taken a tanker full of oil industry money. During the campaign, the more progressive candidates will hang the actual Beto around the neck of the idealized Beto.

  4. Elizabeth Warren: Ideologically, she is a good fit for the Democrats, but maybe she missed her chance by not running against Hillary Clinton in 2016. Also working against her is that her political instincts are below the Mendoza line (think: her DNA test).

  5. Michael Bloomberg: He doesn't mesh with the modern Democratic Party well, but he did manage to get elected three times as mayor of New York City, not exactly a tea party bastion. And he has a lot of credibility with Democrats on two issues: the environment and gun control. The fact that he could spend a billion dollars of his own money on the primary and another billion on the general election without batting an eyelash doesn't hurt his chances either.

  6. Sherrod Brown: Another older white guy like Sanders, Biden, and Bloomberg, but from a key swing state and with a long progressive record. He's not the world's most charismatic speaker though. Also, if he were elected president, the Democrats would lose a crucial Senate seat.

  7. Joe Biden: Had he been the 2016 nominee, he would have gone through Trump like a hot knife through butter. But he has run before and never pulled it off. Why would this time be different? There is also the matter of his gaffes and his plagiarism of British politician Neil Kinnock in 1987, which will be rerun endlessly.

  8. Kirsten Gillibrand: Is she robotic in the Rubio sense of the word? Yeah. Is she even a progressive? Lately yes, formerly no. But she has a steely determination and confidence that would be seen in a male politician as "leadership."

  9. Amy Klobuchar: She is a serious person and would be a competent president, but doesn't inspire a lot of passion. Still, she is from a state bordering Iowa and a win there would put her on the front page of every newspaper in the country the day after the caucuses.

  10. Cory Booker: If he is still dating actress Rosario Dawson, that could help, but with such a crowded field, everything would have to break in his favor to get him all the way.

Tulsi Gabbard and Julián Castro get honorable mentions, but only because they are running to get that pitcher of warm piss, not the brass ring. And of course, some celebrity or businessman could come out of left field and surprise everyone. Just imagine the shakeup if Michelle Obama were to jump in. And she's no Lurleen Wallace. (V)

Kansas Republicans Are Scared of Kobach

There has been some buzz about Secretary of State Mike Pompeo running for the Senate seat being vacated by Sen. Pat Roberts (R-KS). Kansas hasn't sent a Democrat to the Senate since 1932, and since Pompeo is well known and a former congressman from Kansas, he would certainly clear the field and get a straight shot into the Senate. Up until now it wasn't clear why Republicans, including Majority Leader Mitch McConnell (R-KY), were pushing so hard for Pompeo to run. After all, Kansas has no shortage of ambitious Republicans, including multiple representatives, statewide office holders, and state legislators.

Now the cat is out of the bag: Former Kansas secretary of state Kris Kobach, who ran for governor in 2018 and was beaten by a Democrat, wants to run for the Senate. This has freaked out many Republicans, who fear that another Kobach candidacy could result in the unthinkable: A Democratic senator from Kansas. Pompeo is thought to be the only white knight who can save them from this ignominious fate.

But here's the rub: Donald Trump really, really, does not want to lose Pompeo, one of the few cabinet officers he trusts and likes. Legally, Pompeo could probably run for the Senate without resigning his cabinet position, but he could hardly be able to manage Kim Jong-Un and Xi Jinping while campaigning in Wichita. In practice, he would have to resign so he could spend his time campaigning.

Pompeo also has to look at his problem from his own perspective. Trump chews through cabinet officers as if they were junk food, whereas being a Republican senator from Kansas is a lifetime sinecure. The tug of war on him is going to be enormous, with Trump pulling one arm and McConnell pulling the other. He has some time to think about it, though. The filing deadline is in June 2020. Of course, by then, Trump may have tired of him, making his choice easier. However, if he waits too long, other Republicans may file for the seat, forcing a primary, something the Kansas GOP wants to avoid. (V)

Why Is There No Liberal Federalist Society?

Justice Ruth Bader Ginsburg's absence from oral arguments for 2 weeks has made conservative lawyers' hearts go pitter-patter. While they realize it is a bit gauche to say so, they are all hoping for her to die quickly, preferably before Feb. 13, 2020. According to the McConnell rule, Supreme Court vacancies that occur on or after Feb. 13 of a presidential election year can't be filled until the people have their say. Of course, should Ginsburg die in March 2020, McConnell will add a new clause to the rule stating: "unless the Republicans control the White House and Senate."

That being the case, the Federalist Society is already hard at work coming up with the name of her replacement, which it will then hand to Donald Trump for the formal nomination. He will almost certainly accept it, just as he did Justices Neil Gorsuch and Brett Kavanaugh. Such is the power and influence of the Federalist Society. This got Politico to wondering why there is no liberal equivalent to the Federalist Society to feed Democratic presidents pre-vetted liberal candidates for all levels of the federal judiciary.

Actually, there is a liberal legal society, the American Constitution Society, but it has many fewer chapters and much less money ($7 million vs. $27 million in 2016). In part, this is because the Federalist Society goes back much further and has the backing of many Republican megadonors, including the Kochs, the Scaifes, and the Mercers. Consequently, the ACS is less powerful and is not as able to find and vet candidates for every federal district and appellate judge position that becomes vacant. Finding Supreme Court justices is easier because there are so few openings, and there are plenty of folks willing to make suggestions.

Conservatives also have an advantage in that their ideology is easier to explain: Judges should simply look at the actual words in the Constitution or the statutes and uphold them. Liberals tend to be more inclined to re-interpret the Constitution in modern terms, which is somewhat open-ended. Not having a fundamental principle like "upholding the law as it is written," certainly makes it seem as though conservative judges are interested in principle whereas liberal judges want some particular outcome (e.g., allowing transgender people in the military) without regard to what the Constitution or laws actually say. (V)

Judge May End Stormy Daniels Lawsuit

Porn star Stormy Daniels has sued Donald Trump and his former fixer Michael Cohen to get out of the nondisclosure agreement that was part of Trump's payment of $130,000 in hush money to her. Federal Judge James Otero, who is handling the case, is apparently on the verge of ending the case by accepting an offer from Trump's lawyer to release Daniels from the nondisclosure agreement. Once Daniels has been freed to discuss or otherwise publicize her sexual encounter with Trump, in principle there is no need for a lawsuit, so the judge is then likely to dismiss the case.

Technically, this would be a win for Daniels. She is suing so she can legally talk about what happened. It would also be a win for Trump since her lawyer, Michael Avenatti, would then lose his ability to depose Trump under oath, something he is very keen on doing for the PR value. Trump also won a victory in a related case when the same judge threw out a defamation suit Daniels brought and ordered her to pay Trump $293,000 in attorney's fees.

If Daniels gets the right to publicize her encounter any way she wants, what might she do? She could auction off the rights to an interview, for example. She could even sell it to the National Enquirer if it were high bidder, despite knowing it would never publish the story. Given her profession, another option might be making a DVD featuring herself and a Trump impersonator reenacting the encounter. With the right actor, script writer, and camera work, that could prove embarrassing for the president. (V)

Thursday Q&A

Lots of questions about the Senate this week. It's almost as if people are looking toward the upper chamber, and thinking that any resolution to the shutdown will have to come from there.

It seems that appointment of the Speaker of the House requires a majority vote of House members. Is the same true for Senators electing (or removing) the Senate Majority Leader? Is it possible Mitch McConnell could be removed as leader this way, with 4 Republicans joining with the Democrats to unseat him? J.C., Swampscott, MA

Actually, the same is not true. As we noted in a recent Q&A, the position of Senate Majority Leader didn't even exist a century ago, but since then it has become established, primarily as a matter of custom, that whoever holds that position effectively commands the Senate.

There are two major differences between the Senate Majority Leader and the Speaker of the House. The first of these is that the latter position was created by the Constitution, but the former was not. The second, which stems from the first, is that the speaker (per the terms of the Constitution) represents all of the House. The Senate Majority Leader, by contrast, only represents his caucus, even if he does get to run the whole chamber. So, the majority leader need only collect a majority of his caucus' votes, while the speaker needs a majority of the entire House.

If McConnell is to be removed from his post, then, it would require 27 Republicans to rebel against him, not four. Alternatively, if four Republicans are really serious about replacing him with a Democrat, they could declare themselves to be Independents, caucus with the Democrats (as Independents Bernie Sanders and Angus King already do), and thus elevate Minority Leader Chuck Schumer (D-NY) to the position of majority leader. McConnell wouldn't be out of a job, but he would be demoted.

Incidentally, the House has a majority leader (and a minority leader) too, and the same rules apply. That is why Majority Leader Steny Hoyer (D-MD) was able to secure election much more quickly than Nancy Pelosi was after the 2018 elections, because he needed only 118 Democratic votes, while Pelosi needed 216 (since she wasn't going to get any GOP crossover votes). Under normal circumstances, she actually would have needed 218, but several seats in the House (e.g., NC-09) were not yet filled when the election was held.

Why must every measure get 60 votes in the Senate? Is it because "filibuster" is now just the default setting of the Senate? What if nobody actually filibustered a measure that got well over 50 votes in the Senate (say, 57) but not 60? Would it pass, or does it have to have 60 votes no matter what? R.R., Memphis, TN

Let us note, first of all, that not everything can be filibustered (for example, reconciliation bills cannot, nor can most appointments). But for those items that can be filibustered, it takes only one senator to put his/her foot down. In the scenario you describe, the bill would pass, but the reason that kind of vote rarely happens is that it would require a strange set of circumstances, namely that 43 senators opposed the bill, but not one of them felt strongly enough about it to invoke a filibuster. There just aren't that many bills like that. And when they do exist, they are generally passed by a voice vote, so that a Senator doesn't have to record an official vote for a measure that they don't particularly like, but they don't strongly dislike.

You have mentioned in the past that the number of senators each state sends to the senate cannot be amended, since any such amendment in prohibited by the Constitution itself. Can the part of the Constitution that prohibits such an amendment not itself be amended? Is there anything else in the Constitution that is similarly 'future-proofed'? S.J., Copenhagen, Denmark

We don't recall exactly when we wrote that, so we can't double-check, but you may have slightly misunderstood us. The provision you refer to is a part of (the very brief) Article V. It says:

[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate...

Notice that it does not forbid all changes, only those that would deprive states of equal representation. The way that this has been interpreted is that if there was an amendment that would adjust the number of senators to one per state, or three, or six, or fifty, it could be adopted with the usual 3/4 of legislatures needed for a constitutional amendment. The only thing that would require consent from all 50 states would be a measure that resulted in some states having more senators than others (say, if the standard was changed from "two senators per state" to "one senator for every 3 million people in a state"). In that case, there would no longer be equal representation, and Article V would be triggered.

Legal opinion is divided as to whether 3/4 of the states could amend Article V to strike the above clause, and then change the manner in which Senate representation is calculated with an additional amendment. On one hand, it is clearly legal to delete parts of the Constitution, since several amendments do just that (e.g., the 14th Amendment explicitly repeals the three-fifths compromise). On the other hand, if the intent of the Constitution's authors is considered, they clearly did not want that sort of end run to be used. Whichever interpretation is correct, it's academic, since 3/4 of the states are not going support a change that would undoubtedly deprive some of them of power in the Senate.

As to other parts of the Constitution that are 'future-proofed' (note that the technical term is 'shielded' or 'entrenched'), the answer is yes and no. Article V also forbids any law or amendment that would prohibit the import of slaves, or that would stop direct taxes from being apportioned by the size of a state's population. However, the Article also declares that those two provisions expire in 1808. So, the only entrenched clause that is actually still on the books is the one about the senators.

In one of your Q&A's from January 21, you suggest there is no way the Senate would replace Mitch McConnell as speaker as a path to ending the shutdown. I would appreciate reading a little more of your rationale for this. If (and, of course, it's a big if), Republican senators feel their only way out is to cross either Trump or McConnell or both men, wouldn't McConnell be the most likely choice? President Trump seems to have a stranglehold on the Republican Party at this point, and it wouldn't be out of character for Trump to switch gears and try to save face by blaming the shutdown on McConnell. G.P., Oakland, CA

There are many reasons that McConnell is unlikely to be replaced. The first is that a majority leader has never been jettisoned in this way; the only majority leader to leave the post mid-term was Joe T. Robinson, and that was because he died. The second is that McConnell has many friends and/or people in his debt in his caucus, and so it would be very difficult to collect the votes needed to expunge him. A third is that the GOP would have to unite around a replacement leader, which is no small feat. A fourth is that the culture of the Senate discourages these kinds of back-biting shenanigans.

All of those things are generally true. Meanwhile, in terms of the specific situation that exists right now, namely the shutdown, getting rid of McConnell to pay fealty to Trump doesn't make much sense. If they wanted someone who will bring up Nancy Pelosi's bills for a vote in hopes of ending this thing, then maybe. But that would be poking Trump in the eye, not bowing to him. If they want someone who will do Trump's bidding, well, McConnell's already happy to be that person. A new majority leader wouldn't make the President any happier. If we are talking about McConnell's colleagues throwing him under the bus after the shutdown, that's not likely either. First of all, because Trump tends to fear his equals, and so is unlikely to try to scapegoat the Majority Leader. Second, because most of the senators view Trump as a temporary annoyance. If he does decide he wants to flame McConnell on Twitter, they probably won't challenge him, but they won't play along, either.

When one looks at the "alleged" activities committed by Donald Trump, why is the word 'collusion' used vs. the word 'treason'? Can he be convicted of treason if it is proved that he colluded with Russia, thus working against the US for his personal gain? M.B., Largo, FL

The circumstance you describe might be "high crimes and misdemeanors," or it might even violate the emoluments clause, but treason has a very specific definition and standard of proof laid out in Article III of the Constitution:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

In short, it can be treason only if the person aids the other side in a war. One could try desperately to argue that a state of war exists between Russia and the U.S. at the moment, but that almost certainly would not fly. The fellows who wrote the Constitution clearly meant a declared war. And even if some very clever lawyer actually made that argument fly, there is zero chance that the government can find two people who personally witnessed Trump committing treason and would be willing to testify against him.

Coming from a country where both national and local electoral boundaries are decided by a independent commission, I am always fascinated by your coverage of gerrymandering. One of the key differences between the UK and the US appears to be that in the former the electorate chose their politicians but in the latter the politicians chose their electorate! However I do seem to recall that some states do have an independent (or semi-independent) body to establish boundaries (Iowa? California?). So could you clarify which states have adopted this model? S.T., Worcestershire, U.K.

There are a number of different "lists." To start, Arizona, California, Hawaii, Idaho, and Washington have commissions that draw both congressional and legislative districts. Alaska, Arkansas, Colorado, Missouri, Montana, Ohio, and Pennsylvania have commissions that draw only legislative districts (note that Pennsylvania's is made up mostly of members of the state legislature). Iowa has a complicated system wherein non-partisan legislative staffers draw up the maps, and the legislature votes "yes" or "no." If it's "no," the staffers try again several times, and then eventually the Iowa Supreme Court gets involved.

That's five states (plus Iowa, kinda) that use commissions for congressional and legislative districts. The list will grow during the next round of mapmaking, as five more states' voters have approved ballot initiatives that establish a commission for both purposes: Colorado, Ohio, Michigan, Missouri, and Utah. Assuming no court challenges, that pushes the number to 10 (plus Iowa, kinda). Montana may also join the list; state law actually allows its commission to draw congressional districts, but since the state has only one representative right now, there's nothing to draw. There is a good possibility they will pick up a second representative after the next census, at which point there actually will be something to draw. A running total, then, gives us 10 states that will be using commissions for all districts by 2020, 6 that will be using commissions for legislative districts only, Montana (which could end up in either category), and Iowa (which is in a category of its own). That's 18.

On top of that, Maine and Vermont use advisory committees for redistricting, though the legislatures control the actual process. Connecticut, Illinois, Mississippi, Oklahoma, and Texas use commissions only if the legislature isn't able to reach agreement. That's a grand total of 25 states (a.k.a. half) that use some form of redistricting commission, in at least some circumstances. It seems quite likely that this is an idea that will go nationwide sooner rather than later.

I don't understand why Donald Trump is considered to have the power to unilaterally withdraw the US from NAFTA or from NATO. Aren't both of these treaties that the Congress passed, and therefore the law of the land until Congress changes it? F.E., San Francisco, CA

Broadly speaking, the reason the president has this power (if he does), is because the Constitution specifies clear rules for making a treaty, but doesn't say anything about who can break a treaty. You might think that this would be a matter for the Supreme Court, but every time they've been asked about it, they have refused to get involved. The most notable instance of this was in 1979, when Jimmy Carter decided to pull out of the Sino-American Mutual Defense Treaty, Senate Republicans objected, and SCOTUS declined to hear Goldwater v. Carter, concluding that this was a political question, and not a legal one.

As to the specific cases you note, NAFTA is not technically a treaty (it's a trade agreement), and it actually has a clause in it that allows any of the three countries to withdraw at will (with six months' warning), and that clause has nary a word about Congressional approval being needed. This has pretty much universally been interpreted as giving the leaders of any of the three nations the power to pull out of their own accord. As to NATO, it is considerably less clear that the President can act unilaterally, and Congress is trying to assert itself. On Tuesday, in fact, the House passed a bill by a large, bipartisan margin (357-22, with a few dozen abstentions) that specifically attempts to stop Trump from leaving NATO. It's now in the Senate's hands, where its fate is anyone's guess. All of that said, Trump is commander-in-chief, and NATO is primarily a military alliance. Even if the U.S. remains a member of the pact, he could decline to deploy troops in service of its objectives, which would have an effect similar to withdrawing.

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---The Votemaster and Zenger
Jan23 Senate to Perform Some Bipartisan Kabuki
Jan23 Giuliani Is in the Doghouse
Jan23 SCOTUS Gives Trump a Win and a Loss
Jan23 Judge Refuses to Make Ruling in NC-09
Jan23 Small Donors Are Playing a Big Role in Campaigns These Days
Jan23 Senate Could Change Confirmation Rules
Jan23 Trump Loses Weight on the Photoshop Diet
Jan22 Trump Administration Doesn't Quite Know What to Do with Martin Luther King Jr.
Jan22 Kamala Harris Makes it Official
Jan22 Biden/Beto 2020?
Jan22 Reports of RBG's Death Have Been Greatly Exaggerated
Jan22 Giuliani Tries to Walk Back His Words, Yet Again
Jan22 Pompeo, Staff Hate One Another
Jan22 Trump Tell-All Leaks
Jan21 Giuliani Defends Trump, Attacks BuzzFeed
Jan21 Trump Fails to Drive a Wedge Between Schumer and Pelosi
Jan21 The "I'm Sorry" Primary Is Beginning
Jan21 Democrats Need to Focus on Midsize Cities
Jan21 Initial House ratings
Jan21 Trump's Base May Be Starting to Erode Slightly
Jan21 Monday Q&A
Jan20 Trump Makes an Offer That Everyone Can Refuse
Jan20 Women March Nationwide, But in Smaller Numbers Than in 2017 and 2018
Jan19 Cohen Soap Opera Takes Some Twists and Turns
Jan19 Trump to Speak to the Nation Today
Jan19 Pelosi Says Trump Put Her in Danger
Jan19 Second Trump-Kim Summit Is On
Jan19 President Hogan?
Jan18 Tit, Meet Tat
Jan18 Cohen Plot Thickens
Jan18 Trump Surprised by Barr-Mueller Friendship
Jan18 Giuliani Tries to Walk Back Collusion Remarks
Jan18 Rep. Tom Marino Resigns
Jan18 Schumer Recruits Gallego for Arizona Senate Race
Jan18 Democratic Presidential Candidate of the Week: Jay Inslee
Jan17 Pelosi Asks Trump to Delay the State of the Union Address
Jan17 Nancy Pelosi Knows How Politics Works
Jan17 Schiff Hires Seven New Staffers to Investigate Trump's Connections to Russia
Jan17 Giuliani: Ok, Maybe There Was Collusion
Jan17 Money Isn't Everything
Jan17 Why the Shutdown Won't End Anytime Soon
Jan17 Majority of Americans Are Fine with a Marginal Tax Rate of 70%
Jan17 Thursday Q&A
Jan16 Barr Walks a Fine Line
Jan16 A Day of Shutdown Theater from Trump
Jan16 Mueller Filing Confirms Kilimnik Connection
Jan16 Gillibrand Makes It Official
Jan16 Gabbard Has Anti-LGBTQ Skeletons in Her Closet
Jan16 House Vaguely Rebukes King
Jan16 Brexit, May Both in Trouble