The Constitutionality of Trade Agreements.

In Field v. Clark,453 legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it attempted an unconstitutional delegation “of both legislative and treaty-making powers.” The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: “What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President.”454 Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,455 decided twenty years later, a collateral question was passed upon. This was whether an act of Congress that gave the federal circuit courts of appeal jurisdiction of cases in which “the validity or construction of any treaty . . . was drawn in question” embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. The Court answered: “While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.”456

Footnotes

453
143 U.S. 649 (1892). [Back to text]
454
143 U.S. at 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court sustained a series of implementing actions by the President pursuant to executive agreements with Iran in order to settle the hostage crisis. The Court found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly ratified over time by Congress’s failure to set aside the asserted power. Also see Weinberger v. Rossi, 456 U.S. 25, 29–30 n.6 (1982). [Back to text]
455
224 U.S. 583 (1912). [Back to text]
456
224 U.S. at 601. [Back to text]