The Treaty Ratification Power: Where In The Constitution?

The US Constitution outlines the President's power to make treaties in Article II, Section 2, stating 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 clause, known as the Treaty Clause, grants the President the authority to negotiate and ratify treaties, with the Senate's approval. The Treaty Clause has been a subject of debate, with some arguing for a stronger role for the Senate in advising the President, while others emphasize the President's power to act independently in foreign relations. The Supreme Court has upheld the legally binding nature of treaties, incorporating them into US federal law, and treating them similarly to legislative acts.

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The President's role in treaty-making

The United States Constitution grants the President the authority to negotiate and enter into treaties with the "advice and consent" of the Senate. This power is outlined in Article II, Section 2 of the Constitution, which 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 clause, known as the Treaty Clause, gives the President significant authority in foreign relations.

The President plays a crucial role in treaty-making by leading the negotiation process and representing the United States in international discussions. Once the treaty terms have been agreed upon, the President signs an instrument of ratification, expressing the nation's final assent to be bound by the treaty. This step is a critical aspect of the President's role, as it signifies the nation's commitment to upholding the treaty's obligations.

However, it is important to note that the President's power to ratify treaties is not absolute. The Senate plays a checking role by either approving or rejecting the treaty. The Senate may also attach conditions or reservations to its approval. Additionally, the Supreme Court has clarified that treaties do not automatically become domestic law unless they are explicitly "self-executing" or implemented by an act of Congress. This limitation was highlighted in the Medellin v. Texas case, which restricted the President's ability to unilaterally enforce international agreements without congressional delegation.

Furthermore, while the President is responsible for expressing the nation's assent, additional action by Congress may be required to implement the treaty into domestic law. This process is outlined in Article II, Section 2, Clause 2 of the Constitution, which details the procedures for Congressional Implementation of Treaties. Once the treaty is ratified and proclaimed by the President, Congress may need to pass legislation to ensure the treaty's provisions are enforced within the United States.

In conclusion, the President's role in treaty-making is significant, as they initiate and finalise the process by negotiating and ratifying treaties. However, the system of checks and balances inherent in the Constitution ensures that the President's power is not unchecked. The Senate and Congress play vital roles in approving treaties and implementing them into domestic law, respectively. This collaborative process helps ensure that treaties made by the United States are in the nation's best interests and align with its international obligations.

The Senate's role in treaty-making

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). Treaties are binding agreements between nations and become part of international law. They are also considered federal legislation, forming part of what the Constitution calls "the supreme Law of the Land".

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). The Senate has considered and approved for ratification all but a small number of treaties negotiated by the president and his representatives. 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.

The role of the Senate in treaty-making is to provide advice and consent to the president. This arrangement was supported by leading federalists like John Jay, James Madison, and Alexander Hamilton. Madison, hailed as the Father of the Constitution, described the Treaty Clause as giving the Senate only "partial agency" in the President’s foreign-relations power. Hamilton argued that the executive branch should exercise powers related to foreign relations and should have the power to make treaties "with the advice and approbation of the Senate." The Constitution's framers gave the Senate a share of treaty-making power to check presidential power and safeguard the sovereignty of states by giving each state an equal vote in the treaty-making process.

While the Senate plays a role in treaty-making, the President is the final actor in expressing the United States' assent to be bound to a treaty. The President has the power to negotiate international agreements without senatorial approval and is not obligated to ratify a Senate-approved treaty. In some cases, the President has declined to ratify treaties that received the Senate's advice and consent.

Treaties as federal law

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). 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 gives the Senate only "partial agency" in the President's foreign-relations power. The President has the power to negotiate international agreements without senatorial approval. The Senate does not ratify treaties. Following consideration by the Committee on Foreign Relations, the Senate either approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s). The President then ratifies the treaty by signing an instrument of ratification and arranging for the deposit or exchange of the instrument, as indicated by the treaty's terms.

However, the President has no obligation to ratify a Senate-approved treaty, and in some cases, the President has declined to do so. The President decides whether to make the final decision to enter the treaty on behalf of the United States. Once the parties to the treaty complete the processes necessary to express their final assent to be bound—often through an exchange of instruments of ratification—the President may proclaim the treaty and declare it to be in force by Executive Order.

Federal statutes and treaties are regarded as the "supreme law of the land" per the Supremacy Clause of the U.S. Constitution, with "no superior efficacy ... given to either over the other". By virtue of ratification, a treaty is incorporated into the body of U.S. federal law no differently than a legislative act. Treaties are subject to judicial interpretation and review. The legally binding nature of treaties under the Constitution has been consistently recognized by the courts. As early as 1796, the U.S. Supreme Court, in Ware v. Hylton, applied the Supremacy Clause for the first time, ruling that a treaty superseded conflicting state law.

While treaties may comprise international commitments, an ICJ decision with binding force between governments is not necessarily enforceable by individuals. Treaties may also contain provisions that confer certain rights upon citizens or subjects of one of the nations residing in the territorial limits of the other, which are capable of enforcement between private parties in the courts of the country.

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Treaties and the Supremacy Clause

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). 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 Supremacy Clause, as part of the Constitution, identifies the supremacy of federal law, assuming the underlying priority of federal authority. It is considered a cornerstone of the United States' federal political structure. The final version of the Supremacy Clause states:

> This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause addresses the legal status of the laws that other parts of the Constitution empower Congress to make, as well as the legal status of treaties and the Constitution itself. The core message of the Supremacy Clause is that the Constitution and federal laws take priority over any conflicting rules of state law. Federal statutes and treaties are regarded as the "supreme law of the land" per the Supremacy Clause, with no superior efficacy ... given to either over the other.

The legally binding nature of treaties under the Constitution has been consistently recognized by the courts. The Supremacy Clause makes treaties enforceable in court in the same circumstances as federal statutes and the Constitution itself. The courts have held that Congress can abrogate a treaty by legislative action, even if this violates the treaty under international law. However, the enforceability of treaties has been limited by Supreme Court decisions, which held that a treaty is not binding domestic law unless implemented by an act of Congress or is explicitly "self-executing".

Treaties and Congressional-Executive agreements

The US Constitution gives the President the power to make treaties with the "advice and consent" of the Senate, provided 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 US is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land".

The President ratifies or makes the treaty by signing an instrument of ratification and then arranging for the deposit or exchange of the instrument, as indicated by the treaty's terms. The President is the final actor in expressing the US's assent to be bound to a treaty, but additional action by Congress may be necessary to implement the treaty into domestic law. The President has no obligation to ratify a Senate-approved treaty, and in some cases, the President has declined to do so.

Leading federalists like John Jay, James Madison, and Alexander Hamilton supported this arrangement, particularly the amount of agency given to the President relative to the Senate. Madison, hailed as the Father of the Constitution, described the Treaty Clause as giving the Senate only "partial agency" in the President's foreign-relations power.

A Congressional-Executive agreement can only cover matters that the Constitution explicitly places within the powers of Congress and the President. For example, trade agreements, such as the North American Free Trade Agreement, usually take the form of Congressional-Executive agreements and typically include an explicit right to withdraw after giving sufficient written notice to the other parties.

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