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.

Footnotes

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]