The Treaty Clause of the United States Constitution (Article II, Section 2, Clause 2) establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States and other countries, and holds that the advice and consent of a two-thirds supermajority of the Senate renders a treaty binding with the force of federal law.
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Background
Treaties under the Articles of Confederation As with the drafting of the U.S. Constitution as a whole, the Treaty Clause was influenced by perceived flaws and limitations of the Articles of Confederation, the first governmental framework of the United States. The Articles established a weak central government and accorded significant autonomy and deference to the individual states. The unicameral Congress of the Confederation was the sole national governing body, with both legislative and executive functions, including the power to make treaties. However, to take effect, treaties needed the approval of a supermajority of states (nine out of thirteen), a high bar that prevented many foreign pacts from being made. Although states were obligated by the Articles not to "interfere" with Congress' international commitments, in practice they often ignored or even defied such agreements.S. Crandall, Treaties, Their Making and Enforcement, ch. 3 (2d ed. 1916).
The weakness of the Articles with respect to foreign affairs was most pronounced with respect to the Treaty of Paris with Great Britain, which stipulated that Congress protect the property rights of British creditors and Loyalists. Many state governments either failed to enforce the treaty or took measures to deliberately violate it. In response to protests by the British government, the U.S. Secretary for Foreign Affairs John Jay, could only propose that Congress request state legislatures to repeal all legislation that conflicted with the treaty and to authorize state courts to enforce it. While a bare majority of states complied to varying degrees, the inability of the national government to follow through on its obligations to foreign powers proved to be both an international embarrassment and potentially damaging to national interests; many Founding Fathers worried that nations would likewise renege on treaties with the United States or refrain from entering treaties that would be beneficial to trade and commerce.The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 The Records of the Federal Convention of 1787, at 47, 54 (Max Farrand ed., 1937), and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id. at 245, 316, 2 id. at 27–29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present Supremacy Clause; the draft omitted the authorization of force from the clause, id. at 183, but in another clause the legislative branch was authorized to call out the militia to "enforce treaties". Id. at 182. The two words were struck subsequently “as being superfluous” in view of the Supremacy Clause. Id. at 389–90
Debate about treaty making in the Constitutional Convention In response to various concerns about the ineffectualness of the Articles, a Constitutional Convention was held in 1787 to debate and draft a more robust governing document. During the Convention, it was initially contemplated that the U.S. Senate, the newly proposed upper house of Congress, would have the power to make treaties (as well as to appoint ambassadors and judges of the Supreme Court).2 Records of the Federal Convention of 1787, at 183 (Max Farrand ed., 1937). Just ten days before the Convention adjourned, it was decided that these powers would be shared with the President.2 Records of the Federal Convention of 1787 (Max Farrand ed., 1937), at 538–39. Many delegates cited the established international tradition of executives holding exclusive power over foreign relations and agreements; the participation of the Senate through the "advice and consent" mechanism was added as something of a compromise.
Leading federalists like John Jay, James Madison, and Alexander Hamilton all supported this arrangement, particularly the amount of agency given to the President relative to the Senate. In Federalist No. 64, Jay argued that while the Senate would check presidential powers in treaty making, the President would have the power, when necessary, to negotiate international agreements without senatorial approval.Federalist No. 68, Federalist Papers: Primary Documents in American History - Research Guides at Library of Congress; "As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other." Madison, hailed as the Father of the Constitution, described the Treaty Clause as giving the Senate only "partial agency" in the President’s foreign-relations power. Hamilton argued in Federalist No. 75 that the Article II procedure made the two branches "appropriately combined" in foreign affairs:The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making themBy contrast, Rufus King, who had participated in the Convention, declared as a Senator in 1818 that "the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circumstances, they may think such advice expedient."31 Annals of Cong. 106 (1818). Likewise, several prominent delegates at the Convention argued unsuccessfully for the House of Representatives to participate in treaty-making. However, the idea was widely rejected, due to the fact that the House was a much larger body than the Senate, and thus would be less likely to act decisively or keep certain sensitive agreements secret. Additionally, delegates from smaller states were wary of being disadvantaged in foreign affairs, since the House benefited more populous states; by contrast, the Senate guaranteed every state an equal voice through two senators, regardless of population.
Treaties as "law of the land" Federal statutes and treaties are similarly regarded as the "supreme law of the land" per the Supremacy Clause of the U.S. Constitution, with "no superior efficacy ... given to either over the other". Thus, by virtue of ratification, a treaty is incorporated into the body of U.S. federal law no differently than a legislative act.Treaties and other International Agreements: the Role of the United States Senate (Congressional Research Service 2001).
As with statutes, treaties are subject to judicial interpretation and review.Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006), The legally binding nature of treaties under the Constitution has been consistently recognized by the courts; as early as 1796, the U.S. Supreme Court, in Ware v. Hylton, applied the Supremacy Clause for the first time in ruling that a treaty superseded conflicting state law.Reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania Held at the Seat of the Federal Government, Vol. III, edited by Dallas, Alexander J, Banks Law Publishing, New York (1905), p. 198. Although the Ware decision did not address the Treaty Clause explicitly, it held that both states and private citizens were bound to comply with the treaty obligations of the federal government, which was in turn bound to the "law of nations" with respect to honoring treaties.
Shortly after the Ware ruling, in the 1801 case, United States v. Schooner Peggy, the court cited a treaty in support of a private citizen's lawsuit against the government, and for the first time elaborated upon the legal significance of constitutionally ratified international agreements: It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive act, independent of and unconnected with other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence improper. Although courts have since differed on the enforceability of some types of international agreements, as well as on the precise scope of a treaty's legal obligations, it is generally agreed by constitutional scholars and the judiciary that treaties are generally as binding as federal law.
Entry into force