The President's Treaty Power: Who Has The Final Say?

The power to make treaties is a complex topic that has been debated and interpreted differently over the years in the United States. The US Constitution, specifically Article II, Section 2, grants the President the authority to make treaties with the advice and consent of the Senate, provided that two-thirds of the Senators present concur. This shared power between the President and the Senate is known as the Treaty Clause. While the President takes the lead in negotiating treaties, the Senate's role is generally confined to approving or disapproving them, with the power to attach conditions. Treaties made under this process are considered the supreme Law of the Land and are binding on the parties involved. However, the Supreme Court has held that Congress can abrogate or modify treaties through legislative action, and there have been debates about the President's power to terminate treaties without Senate consent.

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The President's role in treaty-making

The United States Constitution gives the President the power to make treaties "by and with the Advice and Consent of the Senate" as stated in Article II, Section 2. This means that while the President takes the lead in negotiating treaties, two-thirds of the Senators present must concur for a treaty to be ratified.

The President is the final actor in expressing the United States' assent to be bound to a treaty. Ratification takes place when the President signs an instrument of ratification and arranges 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.

In some instances, when Senate leadership believes a treaty lacks sufficient support for approval, they may choose not to vote on it, and the treaty is subsequently withdrawn by the President. Treaties are binding agreements between nations and become part of international law. They also have the force of federal legislation, forming what the Constitution calls "the supreme Law of the Land".

In recent decades, Presidents have frequently entered into international agreements without seeking the advice and consent of the Senate. These are known as "executive agreements" and, although not brought before the Senate for approval, they remain binding under international law.

The Senate's role in treaty-making

The United States Constitution gives the President the power to make treaties with the advice and consent of the Senate. This 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".

While the President takes the lead in negotiating treaties, the Senate has a significant role in the treaty-making process. The Senate's role is primarily to approve or disapprove of a treaty. If the Senate approves a resolution of ratification, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s). The Senate has approved 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, the Senate did not vote on it, and it was eventually withdrawn by the President.

The Senate can also place conditions or reservations on its approval of a treaty. It may consent unconditionally to a proposed treaty, refuse its consent, or stipulate conditions in the form of amendments, reservations, or statements of understanding. If accepted by the President, amendments and reservations must be communicated to the other parties to the treaty and may require reopening negotiations.

In recent decades, presidents have sometimes entered into international agreements without the advice and consent of the Senate, in what are known as "executive agreements". While these are still binding under international law, they have not been approved by the Senate.

Treaties as 'supreme law of the land'

The U.S. Constitution considers treaties as the "supreme law of the land". The power to make treaties is shared between the President and the Senate, with the President taking the lead in negotiating them. Treaties are international agreements between two or more countries or entities that are intended to be legally binding and are governed by international law.

The Constitution 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". The Senate's authority is generally limited to either approving or disapproving a treaty, with approval including the power to attach conditions or reservations. The Senate does not ratify treaties but instead approves or rejects a resolution of ratification. If the resolution passes, ratification takes place through the formal exchange of instruments between the U.S. and the foreign power(s).

The Supreme Court has consistently held that Congress can abrogate a treaty through subsequent legislative action, even if it violates the treaty under international law. The Court has also maintained that the judiciary has no role in addressing the international consequences of such Congressional action. Additionally, the Supreme Court has held that an international accord inconsistent with the U.S. Constitution is void, as with any federal law in conflict with the Constitution.

In recent decades, Presidents have frequently entered into international agreements without Senate approval, known as "executive agreements". While not brought before the Senate, these agreements are still binding under international law. The Treaty Clause implies that treaties are the sole permissible instrument for formalizing the nation's international obligations. However, the Washington Administration set precedents that have influenced the understanding of Article II, suggesting that congressional-executive agreements are also permissible.

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Executive agreements

The US Constitution gives the power to make treaties to the President with the advice and consent of the Senate. The President takes the lead in negotiating treaties. However, the Senate's authority is limited to either disapproving or approving a treaty, with the latter including the power to attach conditions or reservations. Treaties are comparatively rare in modern US foreign policy.

The Supreme Court's role in treaty-making

The US Constitution empowers the President to make treaties with the advice and consent of the Senate. However, the Supreme Court plays a crucial role in shaping US foreign relations and legal obligations by interpreting treaties and their implications within the American legal framework.

The Court's judicial power, as defined in Article III, Section 2, extends to "all Cases…under this Constitution, the Laws of the United States, and Treaties made or which shall be made, under their authority". The Supreme Court interprets treaties, affirms their status as the supreme law of the land, and rules on their enforceability in US courts. Notably, the Court has ruled that treaties take precedence over state laws but can be superseded by federal statutes and, of course, the Constitution.

The Supreme Court has also ruled on the distinction between self-executing and non-self-executing treaties. A self-executing treaty is one that is "equivalent to an act of the legislature" and is thus enforceable in court without any additional legislation. On the other hand, a non-self-executing treaty "imports a contract" to perform a future act, which requires legislation to be passed before it can be enforced by the courts. The Court has ruled a treaty to be non-self-executing on only a handful of occasions.

The Supreme Court has also consistently held that Congress can abrogate a treaty through subsequent legislative action, even if this violates the treaty under international law. This principle was most clearly established in the 1957 Reid v. Covert case, which held that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution".

While the Supreme Court plays a crucial interpretative role in treaty-making, the executive branch leads the process, reflecting a balance between domestic law and international obligations. The Court has no direct role in the treaty-making process itself, other than interpreting treaties and statutes in cases brought before it.

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