Treaty Powers – Constitution Article 2 §2.2

On Wednesdays we study the Constitution. These days, I’m learning about the second article of seven, which deals with the presidency. Last week I looked at Article 2 §2.1, the commander-in-chief clause. This week it’s Article 2 §2.2. It’s about treaties.

Article 2 §2.2

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

A Big Mess

You’re probably thinking, “Why did she say it’s about treaties, when most of the clause is talking about appointments?” Let me tell you, I’m getting the impression that the president is much more problematic than Congress, Constitutionally speaking. If you thought the commander-in-chief clause was hairy, get a load of this: the Annotated Constitution dedicates 42 pages to the treaty-making part of this clause and another 32 pages to appointments. I don’t think I can cop out with “read the book” on this one, so I’m going to break this clause into two posts, and hopefully address the key points in some sort of abstract, at least. So if any of the following makes you say, “Wait, what?” please click through and read the corresponding section of the Annotated Constitution. Some of this stuff is just messy, but I may just have made a mess of explaining it.

The Basics

Basically, the treaty process is almost a mirror image of the way a bill passes into law. The president engages in the treaty negotiations. He passes the finished treaty to the Senate. They can approve, reject, or stipulate conditions to approval of the treaty. (There are a couple different shades of this last one, which I’m going to gloss over. See p. 523 of the Annotated Constitution.) If the Senate approves, it will approve the treaty by two-thirds vote. This allows the president to sign it, which makes the treaty officially ratified into law. Sort of.

Contract or Law?

If I understand it correctly (and that is an “if”), treaties are usually considered contracts. They must be enacted by the passage of laws to enact the agreements in the signing bodies. These contracts are enforced by the International Court of Justice but only in specific cases of dispute. ICJ decisions are merely advisory in synonymous situations, and even in the specific cases, are not the same as federal law in the countries affected. So basically, treaties are not really much stronger than a promise.

But in the U.S., this clause of the Constitution establishes that treaties, once ratified, hold the binding force of law (usually). In practice this means that treaties the U.S. Justice Dept. enforces treaties in the same way as laws. The reason for this is that under the Articles of Confederation (which bound the union before the Constitution replaced them) Congress had ratified the Treaty of Peace to end the revolution against England then discovered it had no power to enforce it if the state legislatures didn’t comply with the terms (and some of them didn’t). Now individual states can’t opt out of international treaties.

Law. Sort of.

So a U.S. treaty is law. Except when it isn’t. The question of whether states are subject to treaties was answered. But the question remained whether some types of treaty provisions could only be put into effect by a subsequent act of Congress. In Foster v. Neilson, Justice Marshall determined a treaty is

to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.

So what does “operating of itself” mean? In 1796 the Jay Treaty contained provisions that required appropriations to carry them into effect. There was a big dust up over whether Congress was required to appropriate the funds. The end result was that the House had full discretion whether to enable the treaty through appropriations, and the Senate (which theoretically got its say before the president signed) had to go along if they did. That’s (mostly) how it has worked ever since. Sometimes things can get messy.

What happens when a treaty provision and an act of Congress conflict? The answer has been that treaty commitments do not diminish Congress’s constitutional powers, so Congress wins. Legislative repeal of a treaty still counts as violation of an international contract. When that happens, the infraction becomes subject to international negotiations and reclamations (see the IJC above) and can, if the injured party chooses to go so far, be enforced by actual war. In any case, federal courts will enforce Congressional laws over international treaties, but are keeping their noses out of conflicts resulting from legislative repeal.

Necessary and Proper

There is an interesting legal intersection of treaty powers and the Necessary and Proper Clause. There’s a whole legal history behind it, but in short (p. 535):

the treaty-power cannot purport to amend the Constitution by adding to the list of Congress’s enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures that independently of a treaty Congress could not enact; the only question that can be raised as to such measures is whether they are “necessary and proper” for the carrying of the treaty in question into operation.

That sounds kind of creepy, but it’s how extradition works. So far, everyone agrees that the limit to this wonky power is the Constitution. Neither the president nor Congress can enact a treaty that is unconstitutional. Of course, deciding what’s unconstitutional can get messy.

Termination of Treaties

It’s awfully nice when a treaty has a sunset date or prescribed exit strategy, because otherwise things can get messy. The first case of out-right abrogation of a treaty by the United States occurred in 1798, when Congress pronounced the United States freed from the stipulations of the Treaties of 1778 with France. It didn’t have much legal impact because the Supreme Court considered it part of declaring war on the French.

Where in the government does the power to unmake treaties lie? There are good arguments to be made that it lies solely with the president, or with the president and Congress, or just with Congress. Historical practice provides support for all three arguments and no final answer appears forthcoming.

Indian Treaties

There’s a whole legal history challenging and defending whether each aspect of how U.S. treaties work apply to treaties with Native American groups. Natives as nations were finally legally buried in the Indian Appropriation Act of March 3, 1871.

That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.

That shocked me. I had always been taught that tribes were recognized as sovereign nations.

Executive Agreements

Treaties are not the only form of international agreement. Once relatively rare, executive agreements make up more than 90% of international agreements today. Article 2 §2.2 doesn’t even mention them, but they did exist at the time the Constitution was written.

There are lots of different kinds of executive agreements, and you could get a graduate degree and a specialized law practice in each of them. So I’ll just list them here and not try to dig into the details.

Agreements by Authorization of Congress

This is the biggest category, because it includes reciprocal trade agreements. We have a lot of those.

Agreements Authorized by Treaties

This category includes arbitration agreements, agreements under the United Nations charter, and status of forces agreements (this is what makes U.S. soldiers stationed abroad subject to court-martial rather than local prosecution).

Agreements by Authority of the President

Just about everything else requiring an international agreement. See “expansion of presidential power.”