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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next
ARTICLE II
EXECUTIVE DEPARTMENT
SECTION 2. POWERS AND DUTIES OF THE PRESIDENT

Clause 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 Court of Law, or in the Heads of Departments.

THE TREATY–MAKING POWER

President and Senate

The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that “the Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.”255 Not until September 7, ten days before the Convention’s final adjournment, was the President made a participant in these powers.256 The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, al[p.470]though Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of senatorial counsel.257 Yet, so late as 1818, Rufus King, Senator from New York, who had been a member of the Convention, declared on the floor of the Senate: “In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in this capacity 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.”258

Negotiation, a Presidential Monopoly.—Actually, the negotiation of treaties had long since been taken over by the President; the Senate’s role in relation to treaties is today essentially legislative in character.259 “He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it,” declared Justice Sutherland for the Court in 1936.260 The Senate must, moreover, content itself with such information as the President chooses to furnish it.261 In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty, of reservations to the act of ratification, or of statements of understanding or other declarations, the formal difference between the first two and the third being that amendments and reservations, if accepted by the President must be communicated to the other parties to the treaty, and, at least with respect to amendments and often reservations as well, require reopening negotiations and changes, whereas the other actions may have more problematic results.262 The act of ratification for the United States is the President’s act, but it may not be forthcoming unless the Senate has consented to it by the required two–thirds of the Senators[p.471]present, which signifies two–thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business.263 Conversely, the President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.264

Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, 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. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”265 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. . . . But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”266

[p.472]

Origin of the Conception.—How did this distinctive feature of the Constitution come about, by virtue of which the treaty–making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress.267 The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty–making power to Congress, fulfillment of Congress’ promises was dependent on the state legislatures.268 Particularly with regard to provisions of the Treaty of Peace of 1783,269 in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists,270 the promises were not only ignored but were deliberately flouted by many legislatures.271 Upon repeated British protests, John Jay, the Secretary for Foreign Affairs, suggested to Congress that it request state legislatures to repeal all legislation repugnant to the Treaty of Peace and to authorize their courts to carry the treaty into effect.272 Although seven States did comply to some extent, the impotency of Congress to effectuate its treaty guarantees was obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation.273


Footnotes

255 2 M. Farrand, op. cit., n.4, 183.
256 Id., 538–539.
257 No. 64 (J. Cooke ed., 1961), 435–436.
258 31 Annals of Congress 106 (1818).
259 Washington sought to use the Senate as a council, but the effort proved futile, principally because the Senate balked. For the details see E. Corwin, op. cit., n.44, 207–217.
260 United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 319 (1936).
261 E. Corwin, op. cit., n.44, 428–429.
262 Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Committee on Foreign Relations by the Congressional Research Service, 103d Cong., 1st sess. (Comm. Print) (1993), 96–98 (hereinafter CRS Study); see also American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), Sec. 314 (hereinafter Restatement, Foreign Relations). See Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).
263 Cf. Art. I, Sec. 5, cl. 1; see also Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276, 283–284 (1919).
264 For instance, see S. Crandall, Treaties, Their Making and Enforcement (Washington: 2d ed. 1916), 53; CRS Study, op. cit., n.264, 109–120.
265 Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). See The Federalist, No. 75 (J. Cooke ed., 1961), 504–505.
266 112 U.S. 580, 598 (1884). For treaty provisions operative as “law of the land” (self–executing), see S. Crandall, op. cit., n.264, 36–42, 49–62, 151, 153–163, 179, 238–239, 286, 321, 338, 345–346. For treaty provisions of an “executory” character, see id., 162–163, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op. cit., n.262, 41–68; Restatement, Foreign Relations, op. cit., n.262, §§ 111–115.
267 See infra, Art. VI, parag. 2 (the supremacy clause).
268 S. Crandall, op. cit., n.264, ch. 3.
269 Id., 30–32. For the text of the Treaty, see 1 W. Malloy (ed.), Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776– 1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586.
270 Id., 588.
271 R. Morris, John Jay, the Nation, and the Court (Boston: 1967), 73–84.
272 S. Crandall, op. cit., n.264, 36–40.
273 The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, op. cit., n.4, 47, 54, 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., 245, 316, 2 id., 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., 183, but in another clause the legislative branch was authorized to call out the militia to, inter alia, “enforce treaties”. Id., 182. The two words were struck subsequently “as being superfluous” in view of the supremacy clause. Id., 389–390.
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