Simone Lawson
The U.S. Constitution outlines the process for entering into treaties in Article II, Section 2. This process involves the President, who is authorized to negotiate and make treaties, and the Senate, which must approve them with a two-thirds vote. Treaties are considered the supreme law of the land, yet they are comparatively rare in modern U.S. foreign policy, with most international agreements being congressional-executive or executive agreements.
| Characteristics | Values |
|---|---|
| Who is authorized to enter into treaties? | The President of the United States with the advice and consent of the Senate. |
| What is the role of the Senate? | The Senate either approves or rejects a resolution of ratification. |
| What is the role of the President? | The President negotiates a treaty with foreign representatives and formally ratifies the treaty after the Senate consents. |
| What is the vote required for approval? | A two-thirds majority vote is required for approval. |
| What is the Treaty Clause? | An executive power in Article II, which provides that the power to make treaties is shared between the President and the Senate. |
| What are executive agreements? | The President can enter into executive agreements without Senate approval. These are binding under international law but are legally distinct under US law. |
| What are congressional-executive agreements? | These require a simple majority in both the Senate and the House of Representatives, followed by the signature of the President. |
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What You'll Learn
The President's role in entering treaties
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.
In recent decades, presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements." While these are legally distinct under US law, they are still binding under international law. The Senate's role in the treaty process is primarily limited to approving or disapproving a treaty, with the power to attach conditions or reservations. The Senate does not ratify treaties but can approve a resolution of ratification, which leads to the formal exchange of instruments of ratification with the involved foreign power(s).
The Supreme Court has generally upheld non-treaty agreements in specific circumstances, and a congressional-executive agreement requires a simple majority in the Senate and the House, followed by the President's signature. The Treaty Clause provides that the power to make treaties is shared between the President and the Senate, and while the Senate cannot advise the President before a treaty is concluded, it can choose to not vote on a treaty, leading to its withdrawal.
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The Senate's role in entering treaties
The United States Constitution provides that the president has 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.
The Senate's role in the treaty-making process is intended to provide a check on presidential power and to safeguard the sovereignty of the states by giving each state an equal vote. Senators sometimes play a part in the initiation or development of a treaty. For example, during the Washington Naval Conference in 1921, President Harding appointed senators as delegates, improving the likelihood of Senate approval for the resulting treaties.
In recent decades, presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements." While not brought before the Senate for approval, executive agreements are still binding under international law.
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The Treaty Clause
The text of Article II, Section 2, Clause 2 of the U.S. Constitution states:
> He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.
In recent decades, presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements." These agreements are legally binding under international law but are distinct from treaties under U.S. law. Executive agreements are typically used for one-time agreements, such as prisoner exchanges or claim settlements, or when they are based on the President's independent authority, such as recognizing foreign nation states.
The Supreme Court has generally upheld non-treaty agreements in limited circumstances. While the Court has never ruled an Article II treaty unconstitutional under domestic law, it could theoretically do so. The Court's interpretation of the Treaty Clause and its relationship with the other powers of the government remains a subject of debate and has evolved over time.
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Congressional-executive agreements
The US Constitution outlines three mechanisms by which the country enters into binding international obligations: treaties, congressional-executive agreements, and executive agreements.
While treaties are the supreme law of the land, they are comparatively rare in modern US foreign policy. Between 1946 and 1999, only 6% of international agreements were treaties submitted to the Senate for approval, while most were congressional-executive agreements. Treaties require at least two-thirds of the Senate to vote in favor, whereas congressional-executive agreements only need a simple majority in both houses of Congress.
Executive agreements, on the other hand, are entered into unilaterally by the President pursuant to constitutional executive powers. They are considered politically binding but not legally binding like treaties. They are made without the advice and consent of the Senate, but they are still binding on the parties under international law.
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Executive agreements
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). Treaties are binding agreements between nations and become part of international law.
The Case–Zablocki Act of 1972 requires the president to inform the Senate within 60 days of any executive agreement being made. This notification requirement enables Congress to vote to cancel an executive agreement or refuse to fund its implementation.
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Frequently asked questions
The President of the United States is authorized to negotiate treaties with the advice and consent of the Senate, which must approve them with a two-thirds vote.
The Senate's role is limited to either disapproving or approving a treaty, with the latter including the power to attach conditions or reservations.
Yes, the President can enter into executive agreements without Senate approval. These agreements are legally distinct under U.S. law but are still binding on the parties under international law.
