TREATY POWER

To enhance the pledged word of the United States in foreign relations, the Framers of the Constitution granted to the President, in cooperation with the Senate, the power to make and enter into treaties. They also provided that this power should vest exclusively in the federal government. The Framers neglected to define the term "treaty," however, leaving its meaning to subsequent clarification. Today, under international law, the term is used for all manner of formal instruments of agreement between or among nations that, regardless of the titles used, create relationships of reciprocal rights and obligations. Under United States law, the term "treaty" usually denotes only those international agreements that are concluded by the federal government and ratified by the President upon receiving the advice and consent of the senate. All other international agreements—executive agreements, for example—are brought into force for the United States upon a constitutional basis other than senatorial advice and consent.

The process of treaty making involves negotiation, signature, ratification, exchange of instruments of ratification, publication, and proclamation; but, other than prescribing that two-thirds of the senators present must give their advice and consent to the ratification of a treaty, the Constitution is silent on the subject. In the early days of the Republic, it was thought that the Senate would participate with the President by giving its advice and consent at every negotiating juncture. Today, it is the accepted practice for the President to solicit the advice and consent of the Senate only after a treaty has been negotiated and signed, although in many—especially important—instances, Senate and even House committees play active roles in advance of the conclusion of a treaty, sometimes on their own initiative, sometimes at the behest of the executive branch.

Once the negotiation of a treaty is complete, the President decides whether to sign the treaty and, if so, whether to submit it to the Senate for advice and consent to ratification. If the Senate is perceived as hostile, the President may choose to let the treaty die rather than suffer defeat. If the Senate receives the treaty, it refers the treaty to the Committee on Foreign Relations, which may or may not report the treaty to the full Senate for its advice and consent. Committee inaction is the usual method for withholding consent to controversial treaties. Sometimes the executive branch will request that the committee withhold or suspend action. Few treaties are defeated by direct vote of the full Senate.

After the Senate gives its advice and consent to ratification, often subject to "reservations," "understandings," and "declarations" initiated by the Senate or the executive branch itself (to clarify, alter, or amend the treaty), the treaty is returned to the President for ratification. The President may choose to ratify the treaty or to return it to the Senate for further consideration. The President also may choose not to ratify the treaty at that time.

After a treaty is ratified, which is a national act, some international act—typically the exchange or deposit of instruments of ratification—usually is required to bring the treaty into force. Also upon ratification, the President issues a proclamation making the treaty officially public. There is disagreement over whether proclamation of a treaty is constitutionally required before the treaty takes effect domestically, but it is the norm to issue such a proclamation which, in any event, is useful in determining the date on which the treaty enters into force.

The Constitution does not limit the treaty power explicitly. Moreover, no treaty or treaty provision has ever been held unconstitutional. Nevertheless, it is generally agreed that such limitations exist. For example, the Supreme Court held, in reid v. covert (1957), that treaties may not contravene any constitutional prohibition, such as those in the bill of rights or in the thirteenth, fourteenth, and fifteenth amendments. Further, although missouri v. holland (1920) largely disposed of the argument that the subject matter of treaties is limited by the tenth amendment, it remains possible, as the Court hinted in DeGeofroy v. Riggs (1890), that the treaty power may be limited by "restraints … arising from the nature … of the states."

Beyond these limitations, however, the treaty power is perceived as a broad power, extending to all matters of "international concern," a phrase that some claim limits the treaty power, but that the courts have used to illustrate the power's broad scope. Ordinarily it is difficult to show that a treaty matter is not of international concern even in the presence of domestic effects.

In addition to granting the power to make and enter into treaties, the Framers of the Constitution provided that resulting treaties, together with the duly enacted laws of the United States, should constitute part of the "supreme law of the land." Thus, as well as giving rise to international legal obligations, treaties have force as domestic law, to be applied as federal statutes and consequently to prevail at all times over inconsistent state laws (assuming no conflict with the Constitution).

Still, not all treaties are automatically binding on American courts. Aside from the general constitutionality requirement, two additional conditions must obtain for treaties to have domestic effect. First, a treaty must not conflict with a subsequent act of Congress. This is in keeping with the judiciary's interpretation of the supremacy clause, ranking treaties and acts of Congress equally and therefore ruling that the law later in time prevails. With the sole exception of Cook v. United States (1933), cases in this area have involved conflicts between an earlier treaty and a later statute, with the latter prevailing. The courts presume, however, that Congress does not intend to supersede treaties, and consequently the courts are disposed toward interpretations that will achieve compatibility between treaties and federal statutes on the same subject.

Second, for a treaty to bind courts it must be "self-executing" or, alternatively, "non-self-executing" but supported by enabling legislation. Such was the holding in Foster v. Neilson (1829). Judicial decisions vary widely in their application of this requirement, however. The distinction between "self-executing" and "non-self-executing" treaties is more easily stated than applied. A determination that a treaty fits one category or the other often may be shown to depend on subjective, at times political, considerations.

Although the Constitution is silent on the question of who has the power to suspend or terminate treaties and under what circumstances, it is generally accepted that the President has such power, without the advice and consent of the Senate, based on the President's established constitutional authority to conduct the foreign affairs of the United States. A challenge to the President's authority in this connection has thus far arisen only in the one case of goldwater v. carter (1979), and that case was decided, on purely jurisdictional grounds, against the challenge. Were the Senate to consent to a treaty on the condition that its advice and consent would be required for the treaty's suspension or termination, however, such a condition might be binding on the President. Also, based on the power of Congress to declare war, it is arguable that the entire Congress (not just the Senate) might legitimately claim a voice in the termination of a treaty where such termination might threaten war.

Burns H. Weston
(1986)

Bibliography

American Law Institute 1965 Restatement of the Law, Second—Foreign Relations Law of the United States. Pages 361–448. St. Paul, Minn.: American Law Institute.

——1980 Restatement of the Law—Foreign Relations Law of the United States (Revised), Tentative Draft No. 1. Pages 71–144. Philadelphia: American Law Institute.

Foster, J. 1901 The Treaty-Making Power under the Constitution. Yale Law Journal 11:69–79.

Henkin, Louis 1972 Foreign Affairs and the Constitution. Mineola, N.Y.: Foundation Press.

Mc Laughlin, C.H. 1958 The Scope of the Treaty Power in the United States. Minnesota Law Review 42:709–771; 43: 651–725.

Wright, Quincy 1919 The Constitutionality of Treaties. American Journal of International Law 13:242–266.