One of the justifications for President Donald Trump withdrawing the United States from the Joint Comprehensive Plan of Action (JCPOA) with Iran was that President Barack Obama did not ask the Senate to ratify it, but instead chose to enter into an executive agreement.
Thus, Obama's failure to seek ratification was what allowed Trump to end it unilaterally.
But Andrew Rudalevige, the Thomas Brackett Reed Professor of Government at Bowdoin College, argued in The Washington Post that history shows this is not necessarily the case.
Although Rudalevige, who specializes in the study of American political institutions, conceded that "it's surely possible that a treaty, in place of an executive agreement, would have wider support," he points to the example of previous presidents.
In 1978, as part of his efforts to enable diplomatic relations with China, President Jimmy Carter gave notice that the U.S. was going to withdraw from its 1954 Mutual Defense Treaty with Taiwan, which nullified an agreement that had been ratified by the Senate.
And in 2001, President George W. Bush informed the Soviet Union that the U.S. would withdraw from the 1972 Anti-Ballistic Missile (ABM) Treaty, which the Senate had also ratified.
Rudalevige emphasized that both examples show that "legislative ire seemed to be driven more by partisanship and policy preference than by constitutional principle" as the opinions of senators on the justification of the two moves switching, with Democrats who had supported Carter's abrogation of the Taiwan treaty then questioning Bush's cancellation of the ABM pact, and Republicans vice versa.
Rudalevige concluded that the legality of the moves was not the real question, and it was more of a political calcuation.
He appeared to agree with sentiments by West Virginia Democratic Sen. Robert Byrd, who said in 2001 that although Bush had the right to abrogate the ABM treaty, "I think the president should have asked for some advice from the Senate…. I think the administration would be much wiser if it took the Senate into consideration and had some expression of support. Let the American people hear some debate in the Senate."
Rudalevige expanded on that advice by saying it was a good idea "whether the president is rescinding a treaty, drafting an international agreement – or tearing one up."
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