The Law: Termination of the ABM Treaty and the Political Question Doctrine: Judicial Succor for Presidential Power

Abstract

President George W. Bush's unilateral termination of the 1972 ABM Treaty between the United States and Russia triggered a lawsuit, Kucinich v. Bush, in which members of the House of Representatives challenged the constitutionality of Bush's action on grounds that the president may not terminate a treaty without congressional approval. The Federal District Court refused to reach the merits of the case and dismissed the case as a nonjusticiable political question. The court's action reflects a disturbing tendency among lower court judges to elide substantive issues in foreign relations cases that challenge presidential usurpation of power. As a result, presidential aggrandizement of power remains unchecked.