1 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, 23 UST 3435, TIAS No. 7503 [hereinafter cited as ABM Treaty].

2 N.Y. Times, Oct. 17, 1985, at A6, col. 1; Christian Sci. Monitor, Oct. 17, 1985, at 1, col. 2; Miami Herald, Oct. 21, 1985, at 13A, col. 1.

3 See Weinberger, , U.S. Defense Strategy, 64 Foreign Aff. 675, 679 (1986)Google Scholar. The announcement came through then National Security Adviser McFarlane, Robert C. on the NBC television program “Meet the Press.” Economist, Nov. 2, 1985, at 21 Google Scholar, col. 1.

4 For a description of the types of advanced technology weapons being considered under the Strategic Defense Initiative program (SDI), see Grier 8c Armstrong, , Star Wars, Will It Work? (six–part series), Christian Sci. Monitor, Nov. 4, 1985, at 28–30 Google Scholar; Nov. 5, 1985, at 20–21; Nov. 6, 1985, at 20–22; Nov. 7, 1985, at 20–21; Nov. 8, 1985, at 18–20; Nov. 12, 1985, at 30–32. For a discussion of the potential effectiveness of SDI, see Guertner, , What Is “Proof”?, Foreign Pol’y, No. 59, Summer 1985, at 73 CrossRefGoogle Scholar; Bennett, , “Star Wars”: The Battle Intensifies, Christian Sci. Monitor, Nov. 4, 1985, at 26 Google Scholar, col. 2. See also Weinberger, , SDI: Realities and misconceptions, Christian Sci. Monitor, Oct. 17, 1985, at 16 Google Scholar, col. 2. For a discussion of the Soviet Union’s response to SDI, see Rivkin, , What Does Moscow Think?, Foreign Pol’y, No. 59, Summer 1985, at 85 CrossRefGoogle Scholar.

5 Economist, Nov. 2, 1985, at 21; Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 1. For example, Assistant Secretary of Defense Richard N. Perle stated on Oct. 16, 1985: “In my judgment there is one correct view of what the [ABM] treaty provides.” He continued:

After one wades through all the ambiguities and reads carefully the text of the treaty itself and the negotiating record . . . with respect to systems based on “other physical principles” [such as lasers and directed-energy weapons], we have the legal right under the treaty to conduct research and development and testing unlimited by the terms of the treaty.. . .

Id. For an excellent analysis of the legality of the SDI program vis-à-vis the ABM Treaty, see Sherr, A., Legal Issues of the “Star Wars” Defense Program (Lawyers Alliance for Nuclear Arms Control Monograph, 1984)Google Scholar.

6 Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 1. At the same time, Secretary Shultz did not reject the new interpretation of the ABM Treaty. Id.

7 For an excellent background discussion of SDI and the ABM Treaty, see A. Sherr, supra note 5; Note, Star Wars Meets the ABM Treaty: The Treaty Termination Controversy, 10 N. C. J. Int’l L. & Com. Reg. 701 (1985). For a history of the strategic arms negotiating record of the Reagan administration through 1984, see S. Talbott, Deadly Gambits: The Reagan Administration and the Stalemate in Nuclear Arms Control (1984). See generally Gray, C., American Military Space Policy (1982)Google Scholar; Stares, P., The Militarization of Space, U.S. Policy, 1945–1984 (1985)Google Scholar.

8 The question whether the Reagan administration’s reading of the ABM Treaty is consistent with the international law of treaty interpretation is beyond the scope of this article. For a background discussion on this subject, see Note, supra note 7, at 720–25. See generally Brownlie, I., Principles of Public International Law 623–30 (1979)Google Scholar; Mcnair, A., The Law of Treaties (1961)Google Scholar.

9 Address to the Nation on Defense and National Security, 19 Weekly Comp. Pres. Doc. 437 (Mar. 28, 1983) [hereinafter cited as President’s Address].

10 Id. at 442–43. See Weinberger, supra note 2, at 680–81. For a general discussion of nuclear deterrence theory, see Green, P., Deadly Logic: The Theory of Nuclear Deterrence (1966)Google Scholar; Keeny & Panofsky, , MAD versus NUTS, 60 Foreign Aff. 287 (1981–82)CrossRefGoogle Scholar; Kennedy, , A Critique of United States Nuclear Deterrence Theory, 9 Brooklyn J. Int’l L. 35 (1983)Google Scholar.

11 President’s Address, supra note 9, at 442. The Reagan administration’s SDI program contemplates a “layered” defense system that would intercept incoming Soviet missiles at various phases of their flight path, from boost to terminal phase. For an overview of the weapons systems under consideration, see U.S. Congress, Office of Technology Assessment, Ballistic Missile Defense Technologies (1985); U.S. Congress, Office of Technology Assessment, Directed Energy Missile Defense in Space—A Background Paper (1984); Bethe, , Garwin, , Gottfried & Kendall, , Space–Based Ballistic–Missile Defense, 251 Sci. Am., No. 4, October 1984, at 39–49 CrossRefGoogle Scholar; Grier & Armstrong, supra note 4, Nov. 4, 1985, at 28–30. For additional views on the feasibility of SDI, see Department of Defense Authorization for Appropriations for Fiscal Year 1985: Hearings on S.2414 Before the Senate Comm. on Armed Services, 98th Cong., 2d Sess. 2893–3128 (1984). For an administration description of SDI technology research programs, see Department of Defense Authorization for Appropriations for Fiscal Year 1986: Hearings on S.674 Before the Subcomm. on Strategic and Theater Nuclear Forces of the Senate Comm. on Armed Services, 99th Cong., 1st Sess. 4050–4127 (1985) [hereinafter cited as Senate Hearings].

12 President’s Address, supra note 9, at 443. Although the Strategic Defense Initiative ultimately envisions the militarization of space once it advances beyond the research phase and enters the development and testing phases, President Reagan made no mention of the possible impact SDI would have, for example, on the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 UST 2410, TIAS No. 6347, 610 UNTS 205 (entered into force Oct. 10, 1967), popularly known as the Outer Space Treaty. Article III of the Outer Space Treaty obligates parties to carry on their activities in space in accordance with international law, “in the interest of maintaining peace and security and promoting international cooperation and understanding.” Article IV of the Outer Space Treaty forbids the stationing or placing in orbit around the Earth of “any objects carrying nuclear weapons or any other kinds of weapons of mass destruction.” Article IV also bans the testing of any type of weapon on the moon and other celestial bodies. In the effort to capture the high frontier of outer space, it is not inconceivable that SDI could eventually entail the development and testing of weapons platforms that are moon based. However, at least insofar as the public declarations on the SDI program are concerned, to date no mention has been made of moon–based activities. For a discussion of conformity of SDI with other treaty obligations of the United States (such as the Limited Test Ban Treaty), see Note, supra note 7, at 706–09.

For additional administration views and testimony on SDI and U.S. compliance with the ABM Treaty, see Senate Hearings, supra note 11, at 4139–47.

13 Weinberger, supra note 4, at 16, col. 2. For additional administration views and testimony on SDI, see Senate Hearings, supra note 11, at 3437–3525, 3972–4008.

14 See Department of Defense Appropriations for 1986: Hearings Before the Subcomm. on Defense Appropriations of the House Comm. on Appropriations, 99th Cong., 1st Sess. 584–85 (1985) [hereinafter cited as House Hearings]; Grier & Armstrong, supra note 4, Nov. 4, 1985, at 28–30.

15 House Hearings, supra note 14, at 568–69. The price tag on SDI research through fiscal year 1989 has been placed at $26 billion. Id. at 569. Congress approved 74% of the Defense Department’s FY 1986 budget request for SDI research. Weinberger, supra note 2, at 682.

16 House Hearings, supra note 14, at 569. Secretary of Defense Caspar Weinberger has expressed a similar sensitivity to compliance with the ABM Treaty, stating that “SDI is a research program . . . and is in complete accord with the ABM Treaty.” Weinberger, supra note 4, at 16, col. 3. A breadboard model is an experimental arrangement to test feasibility. Webster’s New Collegiate Dictionary 134(1981).

17 See infra notes 43–45 and accompanying text.

18 House Hearings, supra note 14, at 581–82.

19 See Wolfe, T., The Salt Experience 1–3 (1979)Google Scholar; United States Arms Control and Disarmament Agency, Arms Control and Disarmament Agreements 132–33 (1980) [hereinafter cited as ACDA Agreements].

20 T. Wolfe, supra note 19, at 1–3.

21 For a brief history of those negotiations, see id. at 8–14; Talbott, S., Endgame: The Inside Story of Salt II 19–24 (1980)Google Scholar.

22 See ACDA Agreements, supra note 19, at 135.

23 Interim Agreement between the United States of America and the Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, May 26,1972,23 UST 3462, TIAS No. 7504. For the etymology of “SALT,” see S. Talbott, supra note 21, at 19 n.*.

24 ABM Treaty, supra note 1, 23 UST 3435.

25 Id., Art. XV, para. 1, 23 UST at 3446.

26 Protocol to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti–Ballistic Missile Systems, July 3, 1974, 27 UST 1645, TIAS No. 8276 [hereinafter cited as ABM Protocol].

27 Id., Art. I, 27 UST at 1646. The Soviet Union has in place an ABM system defending Moscow. The ABM system at Grand Forks, North Dakota, was dismantled by the United States in the mid–1970s. See T. Wolfe, supra note 19, at 13 n.75; ACDA Agreements, supra note 19, at 161.

28 ABM Treaty, supra note 1, Art. I, 23 UST at 3436.

29 Id., Art. HI, 23 UST at 3440. Article III provides:

Each Party undertakes not to deploy ABM systems or their components except that:

(a) within one ABM system deployment area having a radius of one hundred and fifty kilometers and centered on the Party’s national capital, a Party may deploy: (1) no more than one hundred ABM launchers and no more than one hundred ABM interceptor missiles at launch sites, and (2) ABM radars within no more than six ABM radar complexes, the area of each complex being circular and having a diameter of no more than three kilometers; and

(b) within one ABM system deployment area having a radius of one hundred and fifty kilometers and containing ICBM silo launchers, a Party may deploy: (1) no more than one hundred ABM launchers and no more than one hundred ABM interceptor missiles at launch sites, (2) two large phased–array ABM radars comparable in potential to corresponding ABM radars operational or under construction on the date of signature of the Treaty in an ABM system deployment area containing ICBM silo launchers, and (3) no more than eighteen ABM radars each having a potential less than the potential of the smaller of the above-mentioned two large phased-array ABM radars.

Quantitative restrictions have thus been placed on radars as well. Id.

30 Id., Art. V, para. 2, 23 UST at 3441.

31 See id., Art. III, 23 UST at 3440.

32 Id., Art. V, para. 1, 23 UST at 3441.

33 As part of the ABM Treaty, several Agreed Statements, Common Understandings and Unilateral Statements were appended to the Treaty. See Agreed Statements, Common Understandings, and Unilateral Statements Regarding the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missiles, May 26, 1972, 23 UST 3456, TIAS No. 7504.

34 Id., Common Understanding C, 23 UST at 3458.

35 See infra note 46 and accompanying text.

36 Gerard Smith, chief negotiator for the United States in the SALT I negotiations, has written:

[S]ystems employing possible future types of components to perform the function of launchers, interceptors and radars are banned unless the Treaty is amended. [Agreed Statement D] was initialed by Semenov [the Soviet Union’s negotiator] and me on the day the SALT agreements were signed. As an initialed common understanding, it is as binding as the text of the ABM Treaty.

Smith, G., Doubletalk: The Story of the First Strategic Arms Limitation Talks 344 (1980)Google Scholar.

37 See supra note 32 and accompanying text.

38 Christian Sci. Monitor, Oct. 4, 1985, at 3, col. 3 (“The treaty, for instance, allows research on all types of ABM systems and components”).

39 “National technical means of verification” is a euphemism for satellite reconnaissance, radar and other information collection techniques short of espionage and on-site inspection. ACDA Agreements, supra note 19, at 135; T. Wolfe, supra note 19, at 13–14.

40 ABM Treaty, supra note 1, Art. XII, 23 UST at 3443.

41 Christian Sci. Monitor, Oct. 4, 1985, at 4, col. 3.

42 Military Implications of the Treaty on the Limitation of Anti–Ballistic Missile Systems and the Interim Agreement on Limitation of Strategic Offensive Arms: Hearings Before the Senate Comm. on Armed Services, 92d Cong., 2d Sess. 275 (1972) [hereinafter cited as Military Implications].

43 Id. at 377.

44 See supra note 5.

45 Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 2; Prognosis for an Ex-Virgin, Economist, Nov. 2, 1985, at 14; N.Y. Times, Oct. 17, 1985, at A6, col. 1.

46 ABM Treaty, supra note 1, Agreed Statement D, 23 UST at 3456. For a comment on the purpose of such Agreed Statements, see infra note 63.

47 Christian Sci. Monitor, Oct. 17, 1985, at 36, cols. 1–3; N.Y. Times, Oct. 17, 1985, at A6, cols. 5–6.

48 Id.

49 Christian Sci. Monitor, Oct. 17, 1985, at 36, cols. 1–3.

50 Id., Oct. 24, 1985, at 5, col. 1; N.Y. Times, Oct. 17, 1985, at 6, col. 5.

51 Christian Sci. Monitor, Oct. 24, 1985, at 5, col. 1; N.Y. Times, Oct. 17, 1985, at 6, col. 5.

52 Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 3.

53 N.Y. Times, Oct. 17, 1985, at 6, col. 4. The terms “ABM systems or components” found throughout the Treaty are not defined, which thus gives rise to an ambiguity over what constitutes prohibited systems or components under the Treaty. The SDI technologies being contemplated have been characterized by the Reagan administration as ABM “subcomponents” or “adjuncts,” and therefore as not being prohibited under the Treaty. Id.

54 Id.

55 Economist, Nov. 2, 1985, at 21; Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 2.

56 See sources cited in note 47 supra.

57 See sources cited in note 47 supra. In addition, Article I of the Treaty prohibits deployment of a nationwide antiballistic missile defense. See supra note 28 and accompanying text.

58 See Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 3.

59 Strategic Arms Limitation Agreements: Hearings Before the Senate Comm. on Foreign Relations, 92d Cong., 2d Sess. (1972) [hereinafter cited as Strategic Arms Limitation Agreements]; Military Implications, supra note 42.

60 U.S. Const, art. II, §2.

61 Strategic Arms Limitation Agreements, supra note 59, at 1.

62 Id. at 6.

63 Id. at 20. In response to questions by Senator Charles Percy regarding potential misunderstandings caused by the Agreed Statements and Common Understandings, Secretary Rogers gave the following answers:

9. Question. . . . What will prevent differing interpretations of these “clauses” [understandings, interpretations, and unilateral statements] from causing a major misunderstanding and hinder[ing] the successful implementation of the agreements?

Answer. These materials were intended to avoid misunderstanding of the underlying agreements and to facilitate successful implementation of such agreements. The clarification provided by these interpretations and statements is believed to far outweigh whatever risk there may be that they, in turn, might become subject to differing interpretations [emphasis in original].

10. Question. Would it be safe to say that these clauses are really another form of safeguard particularly since they deal with such crucial areas as concealment, ABM technology advances, and missile modernization?

Answer. Yes, they do constitute a form of safeguard against misunderstandings in these crucial areas.

Id. at 53.

64 Id. at 20.

65 Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 3.

66 Strategic Arms Limitation Agreements, supra note 59, at 257–58 (emphasis added).

67 Id. passim.

68 Military Implications, supra note 42, at 40–41.

69 Id. at 274 (emphasis added).

70 Id. at 295. The same point was made by General W. P. Leber, Safeguard System Manager:

The only limitation in the [ABM] treaty . . . is that either side . . . would not use a laser device to substitute for any other component part of the ABM system.. . . [I]f you propose to substitute, for example, a laser device for the interceptor, that would be prohibited, an amendment to the treaty would be required for deployment.

Id. at 439.

71 Id. at 443.

72 Christian Sci. Monitor, Oct. 17, 1985, at 36, col. 3.

73 Henkin, L., Foreign Affairs and the Constitution 167 (1972)Google Scholar.

74 Id.

75 Id. Treaty interpretations by the President following Senate consent do not, of course, have the consent of the Senate. Id.

76 The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 75 (1821).

77 Sec, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936) (where the Court noted the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”).

78 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1951) (Jackson, J., concurring). See also L. Henkin, supra note 73, at 45–65.

79 See L. Henkin, supra note 73, at 416 n.128.

80 See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 295 (1933).

81 See L. Henkin, supra note 73, at 167.

82 Article XIII of the ABM Treaty provides:

1. To promote the objectives and implementation of the provisions of this Treaty, the Parties shall establish promptly a Standing Consultative Commission, within the framework of which they will:

(a) consider questions concerning compliance with the obligations assumed and related situations which may be considered ambiguous;

(b) provide on a voluntary basis such information as either Party considers necessary to assure confidence in compliance with the obligations assumed;

(c) consider questions involving unintended interference with national technical means of verification;

(d) consider possible changes in the strategic situation which have a bearing on the provisions of this Treaty;

(e) agree upon procedures and dates for destruction or dismantling of ABM systems or their components in cases provided by the provisions of this Treaty;

(f) consider, as appropriate, possible proposals for further increasing the viability of this Treaty, including proposals for amendments in accordance with the provisions of this Treaty;

(g) consider, as appropriate, proposals for further measures aimed at limiting strategic arms.

2. The Parties through consultation shall establish, and may amend as appropriate, Regulations for the Standing Consultative Commission governing procedures, composition and other relevant matters.

83 Statute of the International Court of Justice, Arts. 35–36, 59 Stat. 1055, TS No. 993, 3 Bevans 1153, 1179.

84 On Oct. 9, 1985, the State Department announced that the United States had terminated its Declaration of Aug. 26, 1946, submitting to the compulsory jurisdiction of the International Court of Justice. See Chayes, , Nicaragua, the United States, and the World Court, 85 Colum. L. Rev. 1445 (1985)CrossRefGoogle Scholar.

85 See id.

86 Article XV, paragraph 2 of the ABM Treaty provides:

Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.

ABM Treaty, supra note 1, 23 UST at 3446.

87 See supra notes 23 and 82. For a discussion of the many disputes that the Standing Consultative Commission has been called upon to resolve, see T. Wolfe, supra note 19, at 35–37; S. Talbott, supra note 21, at 116, 143–44, 197–98; S. Talbott, supra note 7, at 320.

88 T. Wolfe, supra note 19, at 36.

89 S. Talbott, supra note 21, at 3–4.

90 See, e.g., Reid v. Covert, 354 U.S. 1, 16 (1957); Missouri v. Holland, 252 U.S. 416, 433 (1920); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 360 (1816).

91 444 U.S. 996 (1979). See Berger, , The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U.L. Rev. 577 (1980–81)Google Scholar; Note, Executive Action, Goldwater v. Carter, and the Allocation of Treaty Termination Power, 15 Ga. L. Rev. 176 (1980–81); Note, Unilateral Presidential Treaty Termination Power by Default: An Analysis of Goldwater v. Carter, 15 Tex. Int’l L.J. 317 (1980); Note, The Constitutional Twilight Zone of Treaty Termination: Goldwater v. Carter, 20 Va. J. Int’l L. 147 (1979–80).

92 See Goldwater v. Carter, 481 F.Supp. 949 (D.D.C.), rev’d, 617 F.2d 697 (D.C. Cir.), vacated, 444 U.S. 996 (1979).

93 Mutual Defense Treaty between the United States of America and the Republic of China, Dec. 2, 1954, 6 UST 433, TIAS No. 3178, 248 UNTS 213 (entered into force Mar. 3, 1955).

94 444 U.S. 996.

95 Id. at 997 (Powell, J., concurring).

96 Id.

97 Id.

98 Id. at 998.

99 Justice Rehnquist wrote a separate opinion in which Chief Justice Burger, Justice Stevens and Justice Stewart joined. Id. at 1002.

100 Id. (Rehnquist, J., concurring).

101 Baker v. Carr, 369 U.S. 186, 217 (1962).

102 Id. Had the case been ripe for review, Justice Powell would have answered all three questions in the negative. 444 U.S. at 998–1001.

103 444 U.S. at 1002 (Rehnquist, J., concurring).

104 Id.

105 Id. at 1004 & n. 1.

106 Id. at 1006 (Brennan, J., dissenting).

107 Id. at 1007.

108 U.S. Const, art. VI.

109 U.S. Const, art. III, §2, cl. 1.

110 5 U.S. (1 Cranch) 137 (1803).

111 See Van, Alstyne, A Critical Guide to Marbury v. Madison, 1969 Google Scholar Duke L. J. 1; Frankfurter, , John Marshall and the Judicial Function, 69 Harv. L. Rev. 217, 219 (1955)Google Scholar; Corwin, , Marbury v. Madison and the Doctrine of Judicial Review, 12 Mich. L. Rev. 538 (1914)CrossRefGoogle Scholar.

112 444 U.S. at 1001.

113 369 U.S. at 211 (“it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance”).

114 Jones v. Meehan, 175 U.S. 1, 75 (1899). Compare Factor v. Laubenheimer, 290 U.S. 276, 295 (1933) (“the construction of a treaty by the political department of the government, while not conclusive upon courts called upon to construe it, is nevertheless of weight”).

115 See supra notes 101–102 and accompanying text.

116 However, an interpretation of a treaty that would be tantamount to a termination of that treaty would raise a question quite similar to the one presented in Goldwater v. Carter. See supra notes 90–107 and accompanying text. But see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker”).

117 See infra notes 147–150 and accompanying text.

118 See supra notes 101–102 and accompanying text.

119 See Goldwater v. Carter, 444 U.S. at 1000 (Powell, J., concurring) (if “an inquiry demands . . . special competence or information beyond the reach of the Judiciary,” then it is one best left for another branch).

120 Examples include patent cases (see, e.g., Diamond v. Chakrabarty, 447 U.S. 303 (1980)), antitrust cases (see, e.g., Catalano, Inc. v. Target Sales, 446 U.S. 643 (1980)) and securities cases (see, e.g., Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582 (1973)).

121 Goldwater, 444 U.S. at 1000 (Powell, J., concurring).

122 See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982) (interpretation of the Treaty of Friendship, Commerce, and Navigation with Japan); American Ass’n of Exporters & Importers—Textile & Apparel Group v. United States, 751 F.2d 1239 (Fed. Cir. 1985) (interpretation of the Multifiber Arrangement); Mast Industries, Inc. v. Regan, 596 F.Supp. 1567 (Ct. Int’l Trade 1984) (interpretation of the Multifiber Arrangement).

123 Baker v. Carr, 369 U.S. at 217. See supra notes 116–121 and accompanying text.

124 See, e.g., United States v. Nixon, 418 U.S. 683 (1974).

125 Considering the penchant of the judiciary for invoking the political question doctrine to avoid exercising its jurisdiction in cases involving national defense, it is perhaps unrealistic to believe that a legal challenge by the Senate in this connection would succeed.

Nevertheless, the Reagan administration’s revised interpretation of the ABM Treaty is quite arguably not a “political question.” See Baker v. Carr, 369 U.S. at 212 (“if there has been no conclusive ‘governmental action’ then a court can construe a treaty and may find it provides the answer”). When compared to the Carter administration’s decision to terminate the defense treaty with Taiwan in order to normalize relations with the People’s Republic of China—a paradigm of a political decision—a treaty interpretation that certain weapons systems may be developed and tested pursuant to the ABM Treaty has fewer political overtones.

126 See infra notes 147–150 and accompanying text.

127 Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977). The Court has in fact given the views of a subsequent Congress some weight generally only when the precise intent of the enacting Congress was obscure. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980).

128 Private citizens would clearly be unable to bring such an action because the ABM Treaty is not self-executing. See Diggs v. Richardson, 555 F.2d 848, 850–51 (D.C. Cir. 1976).

129 See, e.g., Goldwater v. Carter, 444 U.S. 996 (1979); Holtzman v. Schlesinger, 414 U.S. 1304 (Marshall, Circuit Justice 1973); Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). See generally McGowan, , Congressmen in Court: The New Plaintiffs, 15 Ga. L. Rev. 241 (1981)Google Scholar; Note, Congressional Access to the Federal Courts, 90 Harv. L. Rev. 1632 (1977).

130 See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973) (Congresswoman Holtzman did not have standing qua member of Congress to attack the constitutionality of the Vietnam War). But see Kennedy v. Sampson, 511 F.2d 430, 435–36 (D.C. Cir. 1974) (Senator Kennedy had standing to seek declaratory judgment that presidential pocket veto of a bill was ineffective). See generally Note, Congressional Standing to Challenge Executive Action, 122 U. Pa. L. Rev. 1366 (1974).

131 See, e.g., Goldwater, 444 U.S. at 1002 (Rehnquist, J., concurring). But see Baker v. Carr, 369 U.S. at 211 (rejecting idea that anything touching foreign affairs is immune from judicial review). See generally Note, The Justiciability of Congressional–Plaintiff Suits, 82 Colum. L. Rev. 526 (1982). For an excellent overview of the case law dealing with the political question doctrine, see Atlee v. Laird, 347 F.Supp. 689 (E.D. Pa. 1972) (three-judge court), aff’d sub nom. Atlee v. Richardson, 411 U.S. 911 (1973).

132 See supra notes 128 and 130.

133 The issue of standing by members of Congress as such was raised in the district court but not reached by the Supreme Court in Mink v. EPA, 410 U.S. 73, 75 n.2 (1973).

134 See, e.g., Kennedy v. Sampson, 511 F.2d 430, 435–36 (D.C. Cir. 1974).

135 See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973).

136 See generally Note, Standing to Sue for Members of Congress, 83 Yale L.J. 1665 (1974); Note, supra note 130.

137 Compare Kennedy v. Sampson, 511 F.2d at 435–36 (Senator Kennedy had standing to challenge the validity of a presidential pocket veto on the ground that it deprived him “of the effectiveness of his vote” in favor of the bill), with Goldwater v. Carter, 617 F.2d 697, 714–15 (D.C. Cir.) (Senator Goldwater lacked standing to challenge treaty termination by the President absent legislative action in conflict with the Executive), vacated, 444 U.S. 996 (1979); and Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) (members of Congress have no judicially enforceable rights under treaty that is not self-executing).

138 Still, under Justice Powell’s view of ripeness as stated in Goldwater, a Senate resolution challenging the President’s interpretation might still be a necessary precondition to any such action. 444 U.S. at 996–1002.

139 See Kennedy v. Sampson, 511 F.2d at 434, where the court noted in a related context:

The provision under discussion [Art. I, §7 of the Constitution] allocates to the executive and legislative branches their respective roles in the law–making process. When either branch perceives an intrusion upon its legislative power by the other, this clause is appropriately invoked. The gist of appellee’s complaint is that such an intrusion has occurred as a result of the President’s misinterpretation of this clause . . . .

140 See Kennedy v. Sampson, 511 F.2d at 434; compare Holtzman v. Schlesinger, 484 F.2d at 1315.

141 See Guertner, supra note 4, at 74 ($26 billion for SDI research through fiscal year 1989); Will Reagan’s Star Wars Plan Fly?, Miami Herald, Nov. 6, 1985, at 2E, cols. 1–4 (“SDI officials say an informal decision about whether these problems can be solved can be made by the early 1990s, after research costing some $30 billion”).

142 See, e.g., Jackson County v. Jones, 571 F.2d 1004, 1007 (8th Cir. 1978) (Department of Defense not excepted from the requirements of the National Environmental Policy Act); Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1976).

143 See, e.g., Youngstown, 343 U.S. at 587 (rejecting notion that President has inherent power as commander-in-chief to seize domestic steel mills as part of the Korean War effort).

144 42 U.S.C. §§4331–4335 (1982). See supra note 142 and cases cited therein. But see Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981) (national security exception to NEPA allows Department of the Navy to keep secret whether it stores nuclear weapons in Honolulu). Since the ABM Treaty is not self-executing, it is doubtful that a direct challenge could be made by a private citizen to the President’s permissive interpretation of the Treaty. Compare Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979); Diggs v. Richardson, 555 F.2d 848 (D.C. Cir. 1976).

145 See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“the courts will always endeavor to construe them [a treaty and legislation] so as to give effect to both, if that can be done without violating the language of either”).

146 Id.

147 L. Henkin, supra note 73, at 164.

148 Fourteen Diamond Rings v. United States, 183 U.S. 176 (1899).

149 Id. at

150 Id.

151 See supra note 105 and accompanying text.

152 U.S. Const, art. I, §9, cl. 7.