THE TREATY-MAKING POWER
President and Senate

The plan that 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.”298 Not until September 7, ten days before the Convention’s final adjournment, was the President made a participant in these powers.299 The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of senatorial counsel.300 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 counselors 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.”301

Negotiation, a Presidential Monopoly.

Actually, the nego- tiation 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.302 “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 1936.303 The Senate must, moreover, content itself with such information as the President chooses to furnish it.304 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.305 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 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.306 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.307

Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. As Chief Justice Marshall wrote 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 infra-territorial; 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.”308

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.”309

The meaning of treaties, as of statutes, is determined by the courts. “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.”310 Yet, “[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”311 Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have “no binding force except between the parties and in respect of that particular case.”312 ICJ decisions “are therefore entitled only to the ‘respectful consideration’ due an interpretation of an international agreement by an international court.”313

Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected. If, for example, the ICJ finds that the United States violated a particular defendant’s rights under international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not necessarily “constitute binding federal law enforceable in United States courts. . . . [W]hile treaties may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms.”314 A memorandum from the President of the United States directing that the United States would “discharge its international obligations” under an ICJ decision interpreting a non-self-executing treaty, “by having State courts give effect to the decision,” is not sufficient to make the decision binding on state courts, unless the President’s action is authorized by Congress.315

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. 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’s promises was dependent on the state legislatures.316 Particularly with regard to provisions of the Treaty of Peace of 1783,317 in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists,318 the promises were not only ignored but were deliberately flouted by many legislatures.319 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.320 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.321

Treaties and the States.

As it so happened, the first case in which the Supreme Court dealt with the question of the effect of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Commonwealth’s paper money, which was depreciating rapidly, was to be legal currency for the payment of debts and to confound creditors who would not accept the currency provided that Virginia citizens could pay into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that the auditor would give the debtor a certificate of payment which would discharge the debtor of all future obligations to the creditor.322 The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton323 the Court struck down the state law as violating the treaty that Article VI, paragraph 2, made superior. Justice Chase wrote: “A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a state . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States, that every treaty made by the authority of the United States, shall be superior to the constitution and laws of any individual state; and their will alone is to decide.”324

In Hopkirk v. Bell,325 the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitations to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate.326 An example is Hauenstein v. Lynham,327 in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same, and to export the proceeds of the sale.328

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute that excluded aliens ineligible for American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.329 But, in Oyama v. California,330 a majority of the Court opined that this legislation conflicted with the Equal Protection Clause of the Fourteenth Amendment, a view that has since been endorsed by the California Supreme Court by a narrow majority.331 Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation.332

Treaties and Congress.

In the Convention, a proposal to re- quire the adoption of treaties through enactment of a law before they should be binding was rejected.333 But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the effects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the “law of the land” or whether there are some types of treaty provisions that only a subsequent act of Congress can put into effect. The language quoted above334 from Foster v. Neilson335 early established that not all treaties are self-executing, for, as Marshall said in that decision, 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.”336

Leaving aside the question of when a treaty is and is not self-executing,337 the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection with the Jay Treaty,338 certain provisions of which required appropriations to carry them into effect. In view of Article I, § 9, clause 7, which says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ,” it seems to have been universally conceded that Congress must be applied to if the treaty provisions were to be executed.339 A bill was introduced in the House to appropriate the needed funds, and its supporters, within and without Congress, argued that, because the treaty was the law of the land, the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Albert Gallatin contended that the House had complete discretion whether or not to carry into effect treaty provisions.340 At the conclusion of the debate, the House voted not only the money but a resolution offered by Madison stating that it did not claim any agency in the treaty-making process, “but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.”341 This early precedent with regard to appropriations has apparently been uniformly adhered to.342

Similarly, with regard to treaties that modify commercial tariff arrangements, the practice has been that the House always insisted on and the Senate acquiesced in legislation to carry into effect the provisions of such treaties.343 The earliest congressional dispute came over an 1815 Convention with Great Britain,344 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation as the convention might require for effectuation. The Senate and some members of the House believed that no implementing legislation was necessary because of a statute that already permitted the President to reduce duties on goods of nations that did not discriminate against United States goods; the House majority felt otherwise and compromise legislation was finally enacted acceptable to both points of view.345 But subsequent cases have seen legislation enacted;346 the Senate once refused to ratify a treaty that purported to reduce statutorily determined duties,347 and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity of some form of congressional implementation.

What other treaty provisions need congressional implementation is debatable. A 1907 memorandum approved by the Secretary of State stated that the limitations on the treaty power that necessitate legislative implementation may “be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . .”348 The same thought has been expressed in Congress349 and by commentators.350 Resolution of the issue seems to be for legislative and executive branches rather than for the courts.

Congressional Repeal of Treaties.

Madison contended that, when Congress is asked to carry a treaty into effect, it has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient.351 Developments have vindicated Madison in this regard. This is seen in the answer that the Court gave 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 therefore the later one will prevail. In short, the treaty commitments of the United States do not diminish Congress’s constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to its violation as an international contract. In such case, as the Court 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.”352

Treaties Versus Prior Acts of Congress.

The Court has en- forced numerous statutory provisions that it recognized as superseding prior treaty engagements. Chief Justice Marshall asserted that the converse would be true as well353 —that a treaty that is self-executing is the law of the land and prevails over an earlier inconsistent statute—and this proposition has been repeated many times in dicta.354 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, writes: “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.”355

The one instance that may be an exception356 is Cook v. United States,357 in which a divided Court held that a 1924 treaty with Great Britain that allowed the inspection of British vessels for contraband liquor and seizure if any was found had superseded the authority conferred by a section of the Tariff Act of 1922358 The difficulty with this case is that the Tariff Act provision had been reenacted in 1930,359 so that a simple application of the rule that the later enactment governs 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 influenced 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, in which case they are enforceable only after the enactment of “legislation to carry them into effect.”360 But what is it about a treaty that makes it the law of the land and gives a private litigant 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 it, gave judgment for the petitioner based on it.361 In Foster v. Neilson,362 Chief Justice Marshall explained that a treaty is to be regarded “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” A treaty will not be self-executing, however, “when the terms of the [treaty] stipulation import a contract— when either of the parties engages to perform a particular act. . . .” When this is the case, “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.”363

Sometimes the nature of a treaty will determine whether it requires legislative execution or “conveys an intention that it be ‘self-executing’ and is ratified on these terms.”364 One authority states that whether a treaty is self-executing “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.”365 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.366

Treaties and the Necessary and Proper Clause.

What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress’s enumerated powers, then it is these powers that it exercises in carrying the treaty into effect. But if the treaty deals with a subject that falls within the national jurisdiction because of its international character, then recourse is had to the Necessary and Proper Clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.367 Congress could not confer judicial power upon American consuls abroad to be exercised over American citizens abroad, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements, and the Supreme Court has upheld such legislation.368

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.369 And Congress could not ordinarily penalize private acts of violence within a state, but it can punish such acts if they deprive aliens of their rights under a treaty.370 Referring to such legislation, the Court has said: “The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with foreign power.”371 In a word, 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.

The foremost example of this interpretation is Missouri v. Holland.372 There, the United States and Great Britain had entered into a treaty for the protection of migratory birds,373 and Congress had enacted legislation pursuant to the treaty to effectuate it.374 Missouri objected that such regulation was reserved to the states by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty.375 Noting that treaties “are declared the supreme law of the land,” Justice Holmes for the Court said: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”376 “It is obvious,” he continued, “that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.”377 Because the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was “necessary and proper” to effectuate the treaty.

Constitutional Limitations on the Treaty Power

A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the Supremacy Clause, both statutes and treaties “are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.”378 As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed the Court has numerous times so stated.379 It does not appear that the Court has ever held a treaty unconstitutional,380 although there are cases in which the decision seemed to be compelled by constitutional considerations.381 In fact, there would be little argument with regard to the general point were it not for dicta in Justice Holmes’ opinion in Missouri v. Holland.382 “Acts of Congress,” he said, “are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.” Although he immediately followed this passage with a cautionary “[w]e do not mean to imply that there are no qualifications to the treaty-making power . . . ,”383 the Justice’s language and the holding by which it appeared that the reserved rights of the states could be invaded through the treaty power led in the 1950s to an abortive effort to amend the Constitution to restrict the treaty power.384

Controversy over Holmes’ language apparently led Justice Black in Reid v. Covert385 to deny that the difference in language of the Supremacy Clause with regard to statutes and with regard to treaties was relevant to the status of treaties as inferior to the Constitution. “There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in ‘pursuance’ of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.”386

Establishment of the general principle, however, is but the beginning; there is no readily agreed-upon standard for determining what the limitations are. The most persistently urged proposition in limitation has been that the treaty power must not invade the reserved powers of the states. In view of the sweeping language of the Supremacy Clause, it is hardly surprising that this argument has not prevailed.387 Nevertheless, the issue, in the context of Congress’s power under the Necessary and Proper Clause to effectuate a treaty dealing with a subject arguably within the domain of the states, was presented as recently as 1920, when the Court upheld a treaty and implementing statute providing for the protection of migratory birds.388 “The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.”389 The gist of the holding followed. “Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed.”390

The doctrine that seems to follow from this case and others is “that in all that properly relates to matters of international rights and obligations, whether these rights and obligations rest upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses all the powers of a constitutionally centralized sovereign State; and, therefore, that when the necessity from the international standpoint arises the treaty power may be exercised, even though thereby the rights ordinarily reserved to the States are invaded.”391 It is not, in other words, the treaty power that enlarges either the federal power or the congressional power, but the international character of the interest concerned that might be acted upon.

Dicta in some of the cases lend support to the argument that the treaty power is limited by the delegation of powers among the branches of the National Government392 and especially by the delegated powers of Congress, although it is not clear what the limitation means. If it is meant that no international agreement could be constitutionally entered into by the United States within the sphere of such powers, the practice from the beginning has been to the contrary;393 if it is meant that treaty provisions dealing with matters delegated to Congress must, in order to become the law of the land, receive the assent of Congress through implementing legislation, it states not a limitation on the power of making treaties as international conventions but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them.

It has also been suggested that the prohibitions against governmental action contained in the Constitution, and the Bill of Rights in particular, limit the exercise of the treaty power. No doubt this is true, though again there are no cases which so hold.394

One other limitation of sorts may be contained in the language of certain court decisions that seem to say that only matters of “international concern” may be the subject of treaty negotiations.395 Although this may appear to be a limitation, it does not take account of the elasticity of the concept of “international concern” by which the subject matter of treaties has constantly expanded over the years.396 At best, any attempted resolution of the issue of limitations must be an uneasy one.397

In brief, the fact that all the foreign relations power is vested in the National Government and that no formal restriction is imposed on the treaty-making power in the international context398 leaves little room for the notion of a limited treaty-making power with regard to the reserved rights of the states or in regard to the choice of matters concerning which the Federal Government may treat with other nations; protected individual rights appear to be sheltered by specific constitutional guarantees from the domestic effects of treaties, and the separation of powers at the federal level may require legislative action to give municipal effect to international agreements.

Interpretation and Termination of Treaties as International Compacts

The repeal by Congress of the “self-executing” clauses of a treaty as “law of the land” does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence, the questions arise where the Constitution lodges this power and where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress by the Act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.399 This act was followed two days later by one authorizing limited hostilities against the same country; in Bas v. Tingy,400 the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring “public war” upon the French Republic.

Termination of Treaties by Notice.

Typically, a treaty pro- vides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties?401 Reasonable arguments may be made locating the power in the President alone, in the President and Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is also required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.

Definitive resolution of this argument appears only remotely possible. Historical practice provides support for all three arguments and the judicial branch seems unlikely to essay any answer.

Although abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a public law, many instances may be cited of congressional actions mandating terminations by notice of the President or changing the legal environment so that the President is required to terminate. The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846,402 when by joint resolution Congress authorized the President at his discretion to notify the British government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only through action of Congress.403 Subsequently, Congress has often passed resolutions denouncing treaties or treaty provisions, which by their own terms were terminable on notice, and Presidents have usually, though not invariably, carried out such resolutions.404 By the La Follette-Furuseth Seaman’s Act,405 President Wilson was directed, “within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties,” and the required notice was given.406 When, however, by section 34 of the Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, with which the Act was not in conflict but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he “did not deem the direction contained in section 34 . . . an exercise of any constitutional power possessed by Congress.”407 The same attitude toward section 34 was continued by Presidents Harding and Coolidge.408

Very few precedents exist in which the President terminated a treaty after obtaining the approval of the Senate alone. The first occurred in 1854–1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark.409 When the validity of this action was questioned in the Senate, the Committee on Foreign Relations reported that the procedure was correct, that prior full-Congress actions were incorrect, and that the right to terminate resides in the treaty-making authorities, the President and the Senate.410

Examples of treaty terminations in which the President acted alone are much disputed with respect both to facts and to the underlying legal circumstances.411 Apparently, President Lincoln was the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action.412 The first such action by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an 1850 treaty with Switzerland, but the action may be explainable as the treaty being inconsistent with a subsequently enacted law.413 Other such renunciations by the President acting on his own have been similarly explained and similarly the explanations have been controverted. Although the Department of State, in setting forth legal justification for President Carter’s notice of termination of the treaty with Taiwan, cited many examples of a President’s acting alone, many of these are ambiguous and may be explained away by, for example, conflicts with later statutes, changed circumstances, or the like.414

No such ambiguity accompanied President Carter’s action on the Taiwan treaty,415 and a somewhat lengthy Senate debate was provoked. In the end, the Senate on a preliminary vote approved a “sense of the Senate” resolution claiming for itself a consenting role in the termination of treaties, but no final vote was ever taken and the Senate thus did not place itself in conflict with the President.416 However, several Members of Congress went to court to contest the termination, apparently the first time a judicial resolution of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.417 Although no Court opinion bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.418

Determination Whether a Treaty Has Lapsed.

There is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton’s opinion in Charlton v. Kelly419 is pertinent: “If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. . . . That the political branch of the government recognizes the treaty obligation as still existing is evidenced by its action in this case. . . . The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition.”420 So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.421

Status of a Treaty a Political Question.

It is clear that many questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:422 It is not “a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. . . . These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws and it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government.” Chief Justice Marshall’s language in Foster v. Neilson423 is to the same effect.

Indian Treaties

In the early cases of Cherokee Nation v. Georgia,424 and Worcester v. Georgia,425 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution that extends the judicial power of the United States to controversies “between a State or the citizens thereof and foreign states, citizens or subjects.” Second, it held: “The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words ‘treaty’ and ‘nation’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.”426

Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations,427 that the states were incompetent to interfere with rights created by such treaties,428 that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a state,429 that a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of a state,430 and that an act of Congress contrary to a prior Indian treaty repealed it.431

Present Status of Indian Treaties.

Today, the subject of In- dian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was provided “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.”432 Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld.433 Statutes modifying rights of members in tribal lands,434 granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,435 or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,436 have been sustained.

When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence, the Court held that certain Indian allottees, under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands that were to be nontaxable for a specified period, acquired vested rights of exemption from state taxation that were protected by the Fifth Amendment against abrogation by Congress.437

A regular staple of each Term’s docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the states. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.

Footnotes

298
2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 183 (rev. ed. 1937). [Back to text]
299
Id. at 538–39. [Back to text]
300
No. 64 (J. Cooke ed., 1961), 435–436. [Back to text]
301
31 ANNALS OF CONGRESS 106 (1818). [Back to text]
302
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, supra, at 207–217. [Back to text]
303
United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936). [Back to text]
304
E. Corwin, supra, at 428–429. [Back to text]
305
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 § 314 (hereinafter Restatement, Foreign Relations) (1987). See Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).
[Back to text]
306
Cf. Art. I, § 5, cl. 1; see also Missouri Pacific Ry. v. Kansas, 248 U.S. 276, 283–84 (1919). [Back to text]
307
For instance, see S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 53 (2d ed. 1916); CRS Study, supra, 109–120. [Back to text]
308
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313–14 (1829). See THE FEDERALIST No. 75 (J. Cooke ed. 1961), 504–505. [Back to text]
309
112 U.S. 580, 598 (1884) (quoted with approval in Medellin v. Texas, 128 S. Ct. 1346, 1357, 1358–59 (2008)). For treaty provisions operative as “law of the land” (self-executing), see S. Crandall, supra, at 36–42, 49–62, 151, 153–163, 179, 238–239, 286, 321, 338, 345–346. For treaty provisions of an “executory” character, see id. at 162–63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at 41–68; Restatement, Foreign Relations, supra, §§ 111–115. [Back to text]
310
Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006), quoting Marbury v. Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals were arrested in the United States, and, in violation of Article 36 of the Vienna Convention on Consular Relations, their nations’ consuls were not notified that they had been detained by authorities in a foreign country (the U.S.). The foreign nationals were convicted in Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in challenging their convictions. The Court did not decide whether Article 36 grants rights that may be invoked by individuals in a judicial proceeding (four justices would have held that it did grant such rights). The reason that the Court did not decide whether Article 36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the two cases before it were not entitled to relief on their claims. It found, specifically, that “suppression of evidence is [not] a proper remedy for a violation of Article 36,” and that “an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342. [Back to text]
311
Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). [Back to text]
312
Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the Court). [Back to text]
313
Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam). [Back to text]
314
Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original, internal quotation marks omitted). As in the case of the foreign nationals in Sanchez-Llamas, Medellin’s nation’s consul had not been notified that he had been detained in the United States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named in an ICJ decision that found a violation of Article 36 of the Vienna Convention. [Back to text]
315
Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371. The majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens, concurring, noted that, even though the ICJ decision “is not ‘the supreme Law of the Land,’ U.S. Const., Art VI, cl. 2,” it constitutes an international law obligation not only on the part of the United States, but on the part of the State of Texas. Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the consent of the United States to the ICJ’s jurisdiction[ ] bind[s] the courts no less than would ‘an act of the [federal] legislature.’ ” Id. at 1376. The dissent believed that, to find treaties non-self-executing “can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” Id. at 1381–82. Moreover, Justice Breyer wrote, the Court’s decision “place[s] the fate of an international promise made by the United States in the hands of a single State. . . . And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause.” Id. at 1384. On August 5, 2008, the U.S. Supreme Court denied Medellin a stay of execution, Medellin v. Texas, 129 S. Ct. 360 (2008) (Justices Stevens, Souter, Ginsburg, and Breyer dissenting), and Texas executed him the same day. [Back to text]
316
S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT ch. 3 (2d ed. 1916). [Back to text]
317
Id. at 30–32. For the text of the Treaty, see 1 Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776–1909), 586 S. DOC. NO. 357, 61st Congress, 2d Sess. (W. Malloy ed., 1910). [Back to text]
318
Id. at 588. [Back to text]
319
R. MORRIS, JOHN JAY, THE NATION, AND THE COURT 73–84 (1967). [Back to text]
320
S. Crandall, supra, at 36–40. [Back to text]
321
The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, supra, at 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. 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, inter alia, “enforce treaties”. Id. at 182. The two words were struck subsequently “as being superfluous” in view of the Supremacy Clause. Id. at 389–90. [Back to text]
322
9 W. HENING, STATUTES OF VIRGINIA 377–380 (1821). [Back to text]
323
3 U.S. (3 Dall.) 199 (1796). [Back to text]
324
3 U.S. at 236–37. [Back to text]
325
7 U.S. (3 Cr.) 454 (1806). [Back to text]
326
See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489–90 (1880). [Back to text]
327
100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–98 (1961), the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United States and Yugoslavia were parties, and an Agreement of 1948 between these two nations, coupled with continued American observance of an 1881 treaty granting reciprocal rights of inheritance to Yugoslavian and American nations, were held to preclude Oregon from denying Yugoslavian aliens their treaty rights because of a fear that Yugoslavian currency laws implementing such Agreements prevented American nationals from withdrawing the proceeds from the sale of property inherited in the latter country. [Back to text]
328
See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a non-resident alien wife of a person killed within the State, the right to sue for wrongful death. Such right was afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen’s Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926). [Back to text]
329
Terrace v. Thompson, 263 U.S. 197 (1923). [Back to text]
330
332 U.S. 633 (1948). See also Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon. [Back to text]
331
This occurred in the much advertised case of Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, “[w]e are satisfied . . . were not intended to supersede domestic legislation.” That is, the Charter provisions were not self-executing. RESTATEMENT, FOREIGN RELATIONS, supra, § 701, Reporters’ Note 5, pp. 155–56. [Back to text]
332
Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961). [Back to text]
333
2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 392–394 (rev. ed. 1937). [Back to text]
334
“Treaties as Law of the Land,” supra. [Back to text]
335
27 U.S. (2 Pet.) 253, 314 (1829). [Back to text]
336
Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): “When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect . . . . If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.” See S. Crandall, supra, chs. 11–15. [Back to text]
337
See infra, “When Is a Treaty Self-Executing.” [Back to text]
338
8 Stat. 116 (1794). [Back to text]
339
The story is told in numerous sources, including S. Crandall, supra, at 165–171. For Washington’s message refusing to submit papers relating to the treaty to the House, see J. Richardson, supra, at 123. [Back to text]
340
Debate in the House ran for more than a month. It was excerpted from the ANNALS separately published as DEBATES IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, DURING THE FIRST SESSION OF THE FOURTH CONGRESS UPON THE CONSTITUTIONAL POWERS OF THE HOUSE WITH RESPECT TO TREATIES (1796). A source of much valuable information on the views of the Framers and those who came after them on the treaty power, the debates are analyzed in detail in E. BYRD, TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES 35–59 (1960). Gallatin served in the United States Senate for two months in 1793–1794, the House of Representatives from 1795–1801, and as Secretary of the Treasury from 1801–1814. [Back to text]
341
5 ANNALS OF CONGRESS 771, 782 (1796). The House adopted a similar resolution in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871), 835. [Back to text]
342
S. Crandall, supra, at 171–182; 1 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 549–552 (2d ed. 1929); but see RESTATEMENT, FOREIGN RELATIONS, supra, § 111, Reporters’ Note 7, p. 57. See also H. REP. 4177, 49th Congress, 2d Sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901). [Back to text]
343
S. Crandall, supra, at 183–199. [Back to text]
344
8 Stat. 228. [Back to text]
345
3 Stat. 255 (1816). See S. Crandall, supra, at 184–188. [Back to text]
346
S. Crandall, supra, at 188–195; 1 W. Willoughby, supra, at 555–560. [Back to text]
347
S. Crandall, supra, at 189–190. [Back to text]
348
Anderson, The Extent and Limitations of the Treaty-Making Power, 1 AM. J. INTL L. 636, 641 (1907). [Back to text]
349
At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self-executing and others not. 29 ANNALS OF CONGRESS 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained “stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory. . . .” Id. at 1019. Much the same language was included in a later report, H. REP. NO. 37, 40th Congress, 2d Sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert. denied, 436 U.S. 907 (1978). [Back to text]
350
T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 175 (3d ed. 1898); Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 353–356 (1922). [Back to text]
351
See, e.g., 5 Annals of Congress 493 (1796). [Back to text]
352
Head Money Cases, 112 U.S. 580, 598 (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, 78 U.S. (11 Wall.) 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, 73 U.S. (6 Wall.) 160, 165–66 (1868), which states in dictum that “Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before by the authorized agents of the government.” [Back to text]
353
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (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, 32 U.S. (7 Pet.) 51 (1833). [Back to text]
354
E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–21 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320–21 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888). [Back to text]
355
1 W. Willoughby, supra, at 555. [Back to text]
356
Other cases, which are cited in some sources, appear distinguishable. United States v. Schooner Peggy, 5 U.S. (1 Cr.) 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. See also Charlton v. Kelly, 229 U.S. 447 (1913). [Back to text]
357
288 U.S. 102 (1933). [Back to text]
358
42 Stat. 858, 979, § 581. [Back to text]
359
46 Stat. 590, 747, § 581. [Back to text]
360
Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888). [Back to text]
361
United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801). [Back to text]
362
27 U.S. (2 Pet.) 253 (1829). [Back to text]
363
27 U.S. (2 Pet.) at 314. Generally, 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, supra, at 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, supra, at 222–224. [Back to text]
364
Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Ingartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc). [Back to text]
365
Q. Wright, supra, at 207–208. See also L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 156–162 (1972). [Back to text]
366
Compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (1829), with Cook v. United States, 288 U.S. 102, 118–19 (1933). [Back to text]
367
Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614. [Back to text]
368
See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083–4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957). [Back to text]
369
18 U.S.C. §§ 31813195. [Back to text]
370
Baldwin v. Franks, 120 U.S. 678, 683 (1887). [Back to text]
371
Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842): “Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.” Id. at 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power “to carry into effect rights expressly given and duties expressly enjoined” by the Constitution. Id. at 618–19. However, the treaty-making power is neither a right nor a duty, but one of the powers “vested by this Constitution in the Government of the United States.” Art. I, § 8, cl. 18. [Back to text]
372
252 U.S. 416 (1920). [Back to text]
373
39 Stat. 1702 (1916). [Back to text]
374
40 Stat. 755 (1918). [Back to text]
375
United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. McCullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress’s power under the commerce clause would be deemed more than adequate, but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918). [Back to text]
376
Missouri v. Holland, 252 U.S. 416, 432 (1920). [Back to text]
377
252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903). [Back to text]
378
Whitney v. Robertson, 124 U.S. 190, 194 (1888). [Back to text]
379
“The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). [Back to text]
380
1 W. Willoughby, supra, at 561; L. Henkin, supra, at 137. In Power Authority of New York v. FPC, 247 F.2d 538 (2d Cir. 1957), a reservation attached by the Senate to a 1950 treaty with Canada was held invalid. The court observed that the reservation was properly not a part of the treaty but that if it were it would still be void as an attempt to circumvent constitutional procedures for enacting amendments to existing federal laws. The Supreme Court vacated the judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement with Canada was held void as conflicting with existing legislation. The Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296 (1955). [Back to text]
381
Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912). [Back to text]
382
252 U.S. 416 (1920). [Back to text]
383
252 U.S. at 433. Subsequently, he also observed: “The treaty in question does not contravene any prohibitory words to be found in the Constitution.” Id. [Back to text]
384
The attempt, the so-called “Bricker Amendment,” was aimed at the expansion into reserved state powers through treaties as well as executive agreements. The key provision read: “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.” S.J. Res. 43, 82d Congress, 1st Sess. (1953), § 2. See also S.J. Res. 1, 84th Congress, 1st Sess. (1955), § 2. Extensive hearings developed the issues thoroughly but not always clearly. Hearings on S.J. Res. 130: Before a Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d Sess. (1952). Hearings on S.J. Res. 1 & 43: Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953). [Back to text]
385
354 U.S. 1 (1957) (plurality opinion). [Back to text]
386
354 U.S. at 16–17. For discussions of the issue, see Restatement, Foreign Relations, § 302; Nowak & Rotunda, A Comment on the Creation and Resolution of a “Non-Problem”: Dames & Moore v. Regan, the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. REV. 1129 (1982); L. Henkin, supra, at 137–156. [Back to text]
387
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cr.) 603 (1813); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259 (1817); Hauenstein v. Lynham, 100 U.S. 483 (1880). Jefferson, in his list of exceptions to the treaty power, thought the Constitution “must have meant to except out of these the rights reserved to the States, for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.” Jefferson’s Manual of Parliamentary Practice, § 594, reprinted in THE RULES AND MANUAL OF THE HOUSE OF REPRESENTATIVES, H. Doc. 102–405, 102d Congress, 2d Sess. (1993), 298–299. But this view has always been the minority one. Q. Wright, supra, at 92 n.97. The nearest the Court ever came to supporting this argument appears to be Frederickson v. Louisiana, 64 U.S. (23 How.) 445, 448 (1860). [Back to text]
388
Missouri v. Holland, 252 U.S. 416 (1920). [Back to text]
389
252 U.S. at 433–34. [Back to text]
390
252 U.S. at 435. [Back to text]
391
1 W. Willoughby, supra, at 569. See also L. Henkin, supra, at 143–148; Restatement, Foreign Relations, § 302, Comment d, & Reporters’ Note 3, pp. 154–157. [Back to text]
392
E.g., Geofroy v. Riggs, 133 U.S. 258, 266–267 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). Jefferson listed as an exception from the treaty power “those subjects of legislation in which [the Constitution] gave a participation to the House of Representatives,” although he admitted “that it would leave very little matter for the treaty power to work on.” Jefferson’s Manual, supra, at 299. [Back to text]
393
Q. Wright, supra, at 101–103. See also, L. Henkin, supra, at 148–151. [Back to text]
394
Cf. Reid v. Covert, 354 U.S. 1 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890). [Back to text]
395
“[I]t must be assumed that the framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty. . . .” Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). With the exceptions noted, “it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.” Geofroy v. Riggs, 133 U.S. 258, 267 (1890). “The treatymaking power of the United States . . . does extend to all proper subjects of negotiation between our government and other nations.” Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). [Back to text]
396
Cf. L. Henkin, supra, at 151–56. [Back to text]
397
Other reservations have been expressed. One contention has been that the territory of a state may not be ceded without such state’s consent. Geofroy v. Riggs, 133 U.S. 258, 267 (1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541 (1885). Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see S. Crandall, supra, at 220–229; 1 W. Willoughby, supra, at 572–576. A further contention is that, although foreign territory may be annexed to the United States by the treaty power, it may not be incorporated with the United States except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310–344 (1901) (four Justices dissenting). This argument appears to be a variation of the one in regard to the correct procedure to give domestic effect to treaties. Another argument grew out the XII Hague Convention of 1907, proposing an International Prize Court with appellate jurisdiction from national courts in prize cases. President Taft objected that no treaty could transfer to a tribunal not known to the Constitution any part of the judicial power of the United States, and a compromise was arranged. Q. Wright, supra, at 117–118; H. REP. NO. 1569, 68th Congress, 2d Sess. (1925). [Back to text]
398
Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–576 (1840). [Back to text]
399
1 Stat. 578 (1798). [Back to text]
400
4 U.S. (4 Dall.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of this situation. [Back to text]
401
The matter was most extensively canvassed in the debate with respect to President Carter’s termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination:Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979). On the issue generally, see Restatement, Foreign Relations, § 339; CRS Study, supra, 158–167; L. Henkin, supra, at 167–171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties: The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1 (1979); Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 NW. U. L. REV. 577 (1980). [Back to text]
402
Compare the different views of the 1846 action in Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 160–162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), and in Taiwan: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 300 (memorandum of Senator Goldwater). [Back to text]
403
S. Crandall, supra, at 458–459. [Back to text]
404
Id. at 459–62; Q. Wright, supra, at 258. [Back to text]
405
38 Stat. 1164 (1915). [Back to text]
406
S. Crandall, supra, at 460. See Van der Weyde v. Ocean Transp. Co., 297 U.S. 114 (1936). [Back to text]
407
41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 AM. J. INTL. L. 33 (1921). In 1879, Congress passed a resolution requiring the President to abrogate a treaty with China, but President Hayes vetoed it, partly on the ground that Congress as an entity had no role to play in ending treaties, only the President with the advice and consent of the Senate. 9 J. Richardson, supra, at 4466, 4470–4471. For the views of President Taft on the matter, see W. TAFT, THE PRESIDENCY, ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES AND ITS LIMITATIONS 112–113 (1916). [Back to text]
408
Since this time, very few instances appear in which Congress has requested or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be § 313 of the Anti-Apartheid Act of 1986, which required the Secretary of State to terminate immediately, in accordance with its terms, the tax treaty and protocol with South Africa that had been concluded on December 13, 1946. Pub. L. 99–440, 100 Stat. 3515 (1986), 22 U.S.C. § 5063. [Back to text]
409
5 J. Richardson, supra, at 279, 334. [Back to text]
410
S. REP. NO. 97, 34th Congress, 1st Sess. (1856), 6–7. The other instance was President Wilson’s request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 CONG. REC. 1793–1794 (1921). See CRS Study, supra at 161–62. [Back to text]
411
Compare, e.g., Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 156–191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), with Taiwan: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 300–307 (memorandum of Senator Goldwater). See CRS Study, supra at 164–66. [Back to text]
412
13 Stat. 568 (1865). [Back to text]
413
The treaty, see 11 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA 894 (1970), was probably at odds with the Tariff Act of 1897. 30 Stat. 151. [Back to text]
414
Compare the views expressed in the Hansell and Goldwater memoranda, supra. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld, The Power of Congress and the President in International Relations, 25 CALIF. L. REV. 643, 658–665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 MINN. L. REV. 879 (1958). [Back to text]
415
Note that the President terminated the treaty in the face of an expression of the sense of Congress that prior consultation between President and Congress should occur. 92 Stat. 730, 746 (1978). [Back to text]
416
Originally, S. Res. 15 had disapproved presidential action alone, but it was amended and reported by the Foreign Relations Committee to recognize at least 14 bases of presidential termination. S. REP. NO. 119, 96th Congress, 1st Sess. (1979). In turn, this resolution was amended to state the described sense of the Senate view, but the matter was never brought to final action. See 125 CONG. REC. 13672, 13696, 13711, 15209, 15859 (1979). [Back to text]
417
Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because of the political question doctrine, id. at 1002, but one other Justice in the majority and one in dissent rejected this analysis. Id. at 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine. [Back to text]
418
Cf. Baker v. Carr, 369 U.S. 186, 211–13, 217 (1962). [Back to text]
419
229 U.S. 447 (1913). [Back to text]
420
229 U.S. at 473–76. [Back to text]
421
Clark v. Allen, 331 U.S. 503 (1947). [Back to text]
422
23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855). [Back to text]
423
27 U.S. (2 Pet.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, supra at 208–16; Restatement, Foreign Relations, § 326. [Back to text]
424
30 U.S. (5 Pet.) 1 (1831). [Back to text]
425
31 U.S. (6 Pet.) 515 (1832). [Back to text]
426
31 U.S. at 558. [Back to text]
427
Holden v. Joy, 84 U.S. (17 Wall.) 211, 242 (1872); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S. 340, 355–56 (1908). [Back to text]
428
The New York Indians, 72 U.S. (5 Wall.) 761 (1867). [Back to text]
429
The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1867). [Back to text]
430
United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876). [Back to text]
431
The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871). See also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898). [Back to text]
432
16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71. [Back to text]
433
Ward v. Race Horse, 163 U.S. 504 (1896). [Back to text]
434
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). [Back to text]
435
Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890). [Back to text]
436
The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871). [Back to text]
437
Choate v. Trapp, 224 U.S. 665, 677–78 (1912); Jones v. Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for escheat to tribe of fractionated interests in land representing less than 2% of a tract’s total acreage violates Fifth Amendment’s taking clause by completely abrogating rights of intestacy and devise). [Back to text]