Treaty Power

Treaty Power in the United States

Treaty Power in the Legislative Process

The Constitution requires the “Advice and Consent” of two-thirds of the Senate for any treaty negotiated by the president with a foreign government to take effect. This treaty power gives the Senate significant leverage over the president’s ability to conduct foreign affairs.

Senator Ted Cruz wrote an essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a excerpt:

“The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.”

U.S. International Law

By Mathilde Holmer

When the United States ratifies a treaty and thus becomes a party to that piece of
international legislation, the treaty acquires the equivalent legislative status as federal legislation (Committee on Foreign Relations, Treaties and Other International Agreements: The Role of the United States Senate, Congressional Research Service, 106th Congress, 2nd session, January 2001 (hereinafter Committee on Foreign Relations), p. 1). This conclusion has been drawn by looking at the language of the Supremacy Clause (Article VI, Section 2 of the United States Constitution, which reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land…”) in the U.S. Constitution (Tribe, L.H., American Constitutional Law, Volume 1, 3rd edition, Foundation Press 2000, p. 644).

Pursuant to this clause, federal laws (and also treaties) are superior to conflicting state laws (Sager, L.G., “The Sources and Limits of Legal Authority”, in Morrison, A.B. (Ed), Fundamentals of American Law, Oxford University Press, 1997, p. 31). According to the U.S. Constitution, the President has the power to enter into treaties on behalf of the United States. This power is found in Article II, Section 2, which states that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” (Article II, Section 2 of the United States Constitution)

The exercise of ratification, when a nation affirms its willingness to be bound by a treaty, is not mentioned in the treaty clause of the Constitution. However, the treaty clause has been interpreted to mean that the President should perform the formal act of ratification, after getting the advice and consent of the Senate (Committee on Foreign Relations, p. 2. 133 Sager, p. 45. 134 Sager, p. 45).

Since treaties have the status of federal legislation, they can affect the outcome in domestic jurisprudence and practice, as well as displacing preceding laws that were inconsistent with the provisions in the treaty (Sager, L.G., “The Sources and Limits of Legal Authority”, page 45).

However, not all treaties have the potential of overriding preceding legislation, as there is a difference between so-called ‘self-executing’ international treaties and ‘non-self-executing’ treaties. A self-executing treaty automatically becomes effective in the domestic legal system when entering into force, whereas a non-self-executing treaty requires additional implementation through domestic laws in order for the treaty to become part of the domestic legal system. The President determines if supporting legislation is required for a specific treaty, and if such legislation has not been enacted, it will ultimately fall upon the judiciary in determining whether or not a treaty is self-executing (Sager, L.G., “The Sources and Limits of Legal Authority”, page 45).

In sum, there are four provisions in the U.S. Constitution that together form the basis of
U.S. law on treaties. These include Article 1, Section 10 (prohibiting states to enter treaties with other nations), Article II, Section 2, Clause 2 (the President has the power to make treaties with the advice and consent of the senate), Article III, Section 2, Clause 1 (judicial power extends to all cases arising under the Constitution, including treaties) and finally Article VI, Section 2 (includes treaties to be the Supreme Law of the Land, having the same status as federal law) (Committee on Foreign Relations, pages 27-28). The U.S. legal system therefore provides mechanisms for enacting international legislation, as well as interpreting and utilizing
international law in its domestic practices. However, as will be demonstrated, these mechanisms are not always applied by administrative agencies or by the U.S. courts.

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Treaty Power: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Treaty Power. This part provides references, in relation to Treaty Power, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Treaty Power by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Treaty Power and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Treaty Power or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Treaty Power and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Treaty Power. Finding these decisions can be challenging. In many cases, researchers about Treaty Power should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Treaty Power when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

3 thoughts on “Treaty Power”

  1. The power to make treaties is in the original text of the Constitution. But the original text is modified by the Amendments to the Constitution–you know, those pesky things like the Bill of Rights. And because they are amendments, they trump over the original text in the case of conflicts.

    So yes, I think its fairly clear that the Congress has no power to pass a treaty that binds the citizens in a way that a “normal” law could not, whether it be about gun control, what some idiot considers hate speech, or whatever, if it violates the Constitutional rights of the citizenry. The “Progressives” will have to find another wet dream to pin their fantasies to.

  2. I’d argue against the claim Cruz is arguing to limit his own power but rather he’s arguing against the power of treaties to enforce policy that runs contrary to his own political objectives.

    The essential property of a treaty, particularly the kind Cruz is arguing to limit, is for a nation to voluntarily limit its own actions in to either accommodate foreign interests or implement collectivist actions (ie all agree to protect the environment or enforce minimal labour or justice standards). Not only does this promote primarily progressive goals but it runs contrary to the Neoconservative belief in unchecked American power.

    As for the actual question, I think he’s being misleading with

    Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

    My understanding the Supremacy clause is the relevant part here, and it puts treaties on par with the rest of federal law and gives it precedence over state law.

    The original case, Missouri v. Holland, strikes me as odd since the court seemed to give the law more weight because it was a treaty. My (completely unqualified) interpretation was the court erred when it ruled congress’s previous attempts to regulate migratory birds unconstitutional, given the same question in a different context they ruled correctly. The result is that treaties are neither superior or inferior to other congressional acts.

    In the case of a non-executing treaty which outlines commitments but not a specific framework the executive has the power to carry out those commitments until congress puts a specific mechanism in place. For the sake of limiting executive power they should probably attach at least a preliminary mechanism to the authorization of the treaty.

  3. Stephen_Lathrop

    “…the sovereignty reserved to the states or to the people.”

    Where that says “sovereignty,” the Constitution says, of course, “powers.”

    You have to ask yourself whether the peculiar wording is purposeful. It’s a change which cuts pretty close to whatever may be substantive in the debate. The debate basically questions whether the treaty making power can be construed as an exercise of the sovereign constituent power, as a Constitutional amendment would be. The case might not be a strong one, but it has some points in its favor, such as the supermajority requirement in the Senate for treaty ratification, and the specific mention of treaties as among the sources of supreme law.

    When Cruz changes “powers”—unequivocally a matter of a delegation from the sovereign people—into “sovereignty”—which implies no delegation, nor any need for it—Cruz at once decides the question in favor of his preferred outcome, while hopelessly muddling the debate.

    But it’s probably not an accident. Cruz is a libertarian. Getting popular sovereignty out of the way seems to have become job one for libertarians.

    As I see it, Cruz would do better to notice that the American theory of government has the full sovereignty of the people exercised nationally, bypassing the state level—a point made at the Federal Convention, by the way. And Cruz ought to be a bit more scrupulous. Conflating powers and sovereignty in public is no way to make yourself respected as an expert on the American system of government—except maybe as a demagogue.

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