The Constitution's Treaty Clause: Powering Diplomatic Relations

The United States Constitution provides that the president shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur (Article II, section 2, also known as the Treaty Clause). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls the supreme Law of the Land. This clause was a direct result of one of the major weaknesses of the Articles of Confederation, which entrusted the treaty-making power to Congress, but left the fulfillment of its promises dependent on the state legislatures.

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The President's role in making treaties

The US Constitution provides that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur (Article II, Section 2, Clause 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land."

The Treaty Clause, for the first time, addresses international affairs from the vantage of the President's powers. The clause vests the President, acting with the advice and consent of the Senate, with the authority to make treaties for the United States. The President is the final actor in expressing the United States' assent to be bound to a treaty, but additional action by Congress may be necessary to implement the treaty into domestic law. The President may proclaim the treaty and declare it to be in force by executive order. However, the President has no obligation to ratify a Senate-approved treaty, and in some cases, the President has declined to do so.

The executive branch is generally responsible for treaty negotiations, but Congress occasionally plays a role by enacting legislation that encourages or pressures the executive branch to negotiate or by refusing to appropriate funds for treaty implementation. The Senate does not ratify treaties; instead, it either approves or rejects a resolution of ratification. If the resolution passes, ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).

In some cases, when Senate leadership believed a treaty lacked sufficient support for approval, the Senate did not vote on the treaty, and it was eventually withdrawn by the President. Since pending treaties are not required to be resubmitted at the beginning of each new Congress, they may remain under consideration by the Senate Foreign Relations Committee for an extended period. In recent decades, presidents have frequently entered the United States into international agreements without the advice and consent of the Senate. These are called "executive agreements" and, although not brought before the Senate for approval, are still binding on the parties under international law.

The Senate's role in making treaties

The US Constitution outlines the role of the Senate in making treaties in Article II, Section 2, also known as the Treaty Clause. This clause states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur". This means that the President cannot make a treaty without the approval of the Senate, and that the Senate's role in the treaty-making process is crucial.

The Treaty Clause was added to the Constitution during the 1787 Constitutional Convention, which was held to create a more robust governing document. Initially, the Convention considered giving the Senate the sole power to make treaties, but ten days before the Convention adjourned, it was decided that this power would be shared with the President. Leading Federalists like John Jay, James Madison, and Alexander Hamilton supported this arrangement, particularly the level of agency given to the President relative to the Senate.

The Senate's role in the treaty-making process is primarily to advise and consent to the President's actions. The Senate does not negotiate treaties, as this authority has been assigned to the President alone. However, the Senate can approve or disapprove of a treaty, and this approval power includes the ability to attach conditions or reservations to the treaty. The Senate Foreign Relations Committee considers pending treaties, and if a treaty lacks sufficient support, it may be withdrawn by the President. In some cases, treaties may remain under consideration by this committee for an extended period.

Once the President has negotiated a treaty, it is considered by the Senate Foreign Relations Committee. The Committee on Foreign Relations then decides on a resolution of ratification, which the full Senate will vote on. If the resolution passes, ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s). Treaties are binding agreements between nations and become part of international law, as well as federal legislation in the US.

In modern US foreign policy, treaties are comparatively rare. Presidents have frequently entered into "executive agreements" with foreign powers without seeking the advice and consent of the Senate. These agreements are still binding under international law, but do not have the same force as treaties in US law.

Treaties as law of the land

Treaties are a crucial aspect of international relations, and the United States Constitution outlines specific procedures and powers regarding treaty-making. The Constitution declares that treaties are the "'supreme law of the land", placing them on equal footing with acts of Congress. This means that once ratified, treaties become federal law and are enforceable by the courts.

Article II, Section 2 of the Constitution, also known as the Treaty Clause, grants the President the power to make treaties with the "advice and consent" of the Senate. This clause was included in the Constitution following the Constitutional Convention of 1787, where it was initially proposed that the Senate would have the sole power to make treaties. However, it was later decided that this power would be shared with the President, with the Senate providing advice and consent. This arrangement was supported by leading Federalists such as John Jay, James Madison, and Alexander Hamilton.

The Treaty Clause empowers the President, with the Senate's approval, to enter into binding agreements with other nations. These agreements become part of international law and are considered federal legislation within the United States, forming what the Constitution refers to as the "supreme Law of the Land". It is important to note that the Senate's role is primarily limited to approval or disapproval, and the authority to negotiate treaties rests with the President.

While treaties are a significant aspect of international relations, they do not supersede domestic law unless Congress has enacted implementing statutes or the treaty expresses the intention to be self-executing. In cases where a treaty provision conflicts with an act of Congress, the more recent document prevails. This means that treaties do not diminish the constitutional powers of Congress, and legislative repeal of a treaty can amount to its violation as an international contract.

In summary, the United States Constitution recognises treaties as the law of the land, placing them on an equal footing with acts of Congress. The President and the Senate share the power to make treaties, with the President taking the lead role in negotiating and the Senate providing advice and consent. Treaties become federal law and are enforceable by the courts, contributing to the nation's international obligations and commitments.

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Treaties vs. agreements

The United States Constitution grants the President the power to make treaties with the "advice and consent of the Senate" (Article II, Section 2). Treaties are binding agreements between nations and are part of international law. They can be referred to as international conventions, international agreements, covenants, charters, memorandums of understanding, protocols, pacts, accords, or constitutions for international organisations. Treaties are typically bilateral (between two parties) or multilateral (between several parties) and are usually only binding on the parties involved in the agreement.

In the US, treaties are considered the supreme law of the land, equivalent to an act of Congress. This means that treaties made by the US President with the advice and consent of the Senate are enforceable by the courts without further action. However, it's important to note that the US Constitution does not consider treaties to be superior to acts of Congress. If a treaty provision and an act of Congress conflict, the more recent one takes precedence.

While treaties are a type of international agreement, not all international agreements are treaties. The term "treaty" in the constitutional sense differs from its usage in international law. According to international law, a treaty is any binding international agreement governed by international law, regardless of how it is brought into force. In contrast, under US law, a treaty refers specifically to international agreements that receive senatorial advice and consent under the Treaty Clause.

In recent times, US presidents have entered into international agreements without seeking the advice and consent of the Senate. These are known as "executive agreements" and, while not ratified by the Senate, are still binding on the parties under international law. The Senate's role in the treaty-making process is to consider and approve or reject a resolution of ratification. If the resolution passes, ratification occurs through the formal exchange of instruments of ratification between the US and the foreign power(s).

Treaties vs. executive agreements

The United States Constitution grants the President the power to make treaties with the "advice and consent" of the Senate, provided that two-thirds of the Senators present concur (Article II, Section 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land."

However, in recent decades, presidents have frequently entered into international agreements without the advice and consent of the Senate. These are known as "executive agreements." Executive agreements are often used to bypass the requirements of national constitutions for the ratification of treaties. While not brought before the Senate for approval, executive agreements are still binding on the parties under international law. For example, as commander-in-chief, the president can negotiate and enter into status of forces agreements (SOFAs), which govern the treatment and disposition of US forces stationed in other nations.

The US Supreme Court, in United States v. Pink (1942), held that international executive agreements validly made have the same legal status as treaties and do not require Senate approval. In Reid v. Covert (1957), the court reaffirmed the president's ability to enter into executive agreements but held that such agreements cannot contradict existing federal law or the Constitution.

The Case-Zablocki Act of 1972 requires the president to inform the Senate within 60 days of making an executive agreement. This notification enables Congress to vote to cancel an executive agreement or refuse to fund its implementation.

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