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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Congressional Repeal of Treaties.—It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: “Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.”303


Treaties Versus Prior Acts of Congress.—The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. Chief Justice Marshall early asserted that the converse would be true as well,304 that a treaty which is self–executing is the law of the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta.305 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: “In fact, however, there have been few (the writer is not certain that there has been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject.”306

The one instance that may be an exception307 is Cook v. United States.308 There, a divided Court held that a 1924 treaty with[p.479]Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were within the distance from the coast that could be traversed in one hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of the Tariff Act of 1922309 for Coast Guard officers to inspect and seize any vessel within four leagues—12 miles—of the coast under like circumstances. The difficulty with the case is that the Tariff Act provision had been reenacted in 1930,310 so that a simple application of the rule of the later governing should have caused a different result. It may be suspected that the low estate to which Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more than slightly influential in the Court’s decision.

When Is a Treaty Self–Executing.—Several references have been made above to a distinction between treaties as self–executing and as merely executory. But what is it about a treaty that makes it the law of the land and which gives a private citizen the right to rely on it in a court of law? As early as 1801, the Supreme Court took notice of a treaty and finding it applicable to the situation before gave judgment for the petitioner based on it.311 In Foster v. Neilson,312 Chief Justice Marshall explained that a treaty is to be regarded in courts “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” It appears thus that the Court has had in mind two characteristics of treaties which keep them from being self–executing. First, “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.”313 In other words, the treaty itself may by its terms require implementation, as by an express stipulation for legislative execution.314


Second, the nature of the stipulation may require legislative execution. That is, with regard to the issue discussed above, whether the delegated powers of Congress imposes any limitation on the treaty power, it may be that a treaty provision will be incapable of execution without legislative action. As one authority says: “Practically this distinction depends upon whether or not the courts and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities. . . .

“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self–executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered. . . .

“On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc.”315 It may well be that these two characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them.316


303 Head Money Cases, 112 U.S. 580, 598–599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871); United States v. Forty–Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721 (1893). “Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.” La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 6 Wall. (73 U.S.) 160, 165–166 (1868), wherein it is stated obiter that “Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before. . . .”
304 Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314–315 (1829). In a later case, it was determined in a different situation that by its terms the treaty in issue, which had been assumed to be executory in the earlier case, was self–executing. United States v. Percheman, 7 Pet. (32 U.S.) 51 (1833).
305 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–221 (1902); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320–321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).
306 1 W. Willoughby, op. cit., n.294, 555.
307 Other cases, which are cited in some sources, appear distinguishable. United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801), applied a treaty entered into subsequent to enactment of a statute abrogating all treaties then in effect between the United States and France, so that it is inaccurate to refer to the treaty as superseding a prior statute. In United States v. Forty–Three Gallons of Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which the tribe ceded certain territory, later included in a State, provided that a federal law restricting the sale of liquor on the reservation would continue in effect in the territory ceded; the Court found the stipulation an appropriate subject for settlement by treaty and the provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).
308 288 U.S. 102 (1933).
309 42 Stat. 858, 979 , Sec. 581.
310 46 Stat. 590, 747 , Sec. 581.
311 United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801).
312 2 Pet. (27 U.S.) 253, 314–315 (1829).
313 Ibid.
314 Generally, the qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to the former, it has always apparently been the practice to insert in treaties affecting the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress. 1 W. Willoughby, op. cit., n.294, 558. Perhaps of the same nature was a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article V of the Webster– Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by the two States and payment to them of compensation. S. Crandall, op. cit., n.264, 222–224.
315 Q. Wright, op. cit., n.302, 207–208. See also L. Henkin, Foreign Affairs and the Constitution (Mineola, N.Y.: 1972), 156–162.
316 Thus, compare Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314– 315 (1829), with Cook v. United States, 288 U.S. 102, 118–119 (1933).
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