Congress And International Law: A Complex Relationship

The US legislative process is a complex system with a focus on the protection of the minority, allowing all sides to be heard and make their views known. The US Constitution grants Congress the power to make laws, with the Senate and House of Representatives both needing to pass a bill for it to become law. The President must then approve the bill for it to become a public or private law. However, the US Supreme Court has ruled that treaties may override previously enacted federal statutes, and a self-executing treaty can be directly enforced by a court without congressional intervention. Therefore, it is theoretically possible for the President and the Senate, in cooperation with a foreign country, to pass a law by including it in a treaty, bypassing the House of Representatives.

The US legislative branch

The US Constitution's Article I outlines the design of the legislative branch of the US government, which is the US Congress. It consists of a Senate and a House of Representatives. The House of Representatives is composed of members chosen every second year by the people of the several states, and the electors in each state must have the qualifications required for electors of the most numerous branch of the state legislature. No person shall be a Representative who has not attained the age of twenty-five years, been a US citizen for seven years, and is not an inhabitant of the state in which they are chosen when elected.

The legislative process is a matter about which every person should be well-informed to understand and appreciate the work of Congress. It is a practical safeguard of the American democratic way of life, with its emphasis on the protection of the minority, allowing ample opportunity for all sides to be heard and make their views known. A proposal cannot become a law without consideration and approval by both Houses of Congress.

The legislative process involves several steps, from the source of an idea for a legislative proposal to its publication as a statute. For instance, state legislatures may 'memorialize' Congress to enact specified federal laws by passing resolutions to be transmitted to the House and Senate as memorials. A member may then introduce the proposal as it has been submitted or may redraft it. In modern times, the ''executive communication' has become a prolific source of legislative proposals, usually in the form of a message or letter from a member of the President's Cabinet, transmitting a draft of a proposed bill to the Speaker of the House of Representatives and the President of the Senate.

The process of passing a bill differs slightly between the House and the Senate. While the House processes legislation through a majority vote, the Senate does so through deliberation and debate before voting. Amendments may be offered during debates, and each amendment must be inserted into the bill in the proper place, with the same spelling and punctuation as adopted by the House. If the President chooses to veto a bill, Congress can usually vote to override that veto, and the bill becomes a law. However, if the President does not sign off on a bill when Congress is no longer in session, the bill will be vetoed by default, called a "pocket veto," which cannot be overridden by Congress.

The role of the President

The President plays a crucial role in the law-making process in the United States. While the legislative powers are vested in the Senate and the House of Representatives, the President has significant influence and responsibilities.

Firstly, the President can initiate the legislative process by sending a message or letter to the Speaker of the House of Representatives and the President of the Senate, known as an "executive communication". This communication includes a draft of a proposed bill, which serves as a legislative proposal for consideration. This power allows the President to shape the legislative agenda and influence the direction of potential laws.

Once a bill has been passed by both the House of Representatives and the Senate, it must be presented to the President for approval. The President has the authority to veto the bill, which means rejecting it and sending it back to the House of origin with objections. However, Congress can override the presidential veto if two-thirds of both the House and the Senate agree to pass the bill after reconsideration. In such cases, the bill becomes a law despite the President's objections.

Additionally, the President's role extends beyond domestic legislation. The President, in cooperation with the Senate, can enter into treaties with foreign countries, which can have legislative implications. In certain cases, treaties can override previously enacted federal statutes or state laws, allowing the President to accomplish legislative goals that may not align with the House of Representatives' agenda.

It is important to note that while the President has the power to initiate and shape legislation, the law-making process in the United States is designed with a system of checks and balances. The Senate, the House of Representatives, and the President all have distinct roles and responsibilities, ensuring that no single branch of government holds absolute power. This separation of powers is a key feature of the US legislative system, intended to protect the rights and interests of all citizens.

Senate and House of Representatives

The US legislative process is a bicameral system, which means that a proposal must be approved by both the Senate and the House of Representatives to become a law. The House of Representatives is composed of members chosen every second year by the people of the various states, and the electors in each state must meet the qualifications required for electors of the most numerous branch of the state legislature. Representatives must be at least 25 years old, have been a US citizen for at least seven years, and live in the state they represent.

The House of Representatives and the Senate have some procedural differences. While both are equal in how they function, only the House can initiate tax and revenue-related legislation. On the other hand, only the Senate can draft legislation related to presidential nominations and treaties. The House processes legislation through a majority vote, while the Senate does so through deliberation and debate before voting.

The preparation of a bill in the form it has passed the House can be complex due to the large number and complexity of amendments. Amendments may be offered during a spirited debate with little or no prior formal preparation, and they may involve inserting new language, substituting different words, or deleting portions of the bill. Each amendment must be inserted in the proper place in the bill, with the spelling and punctuation matching the House's adopted version. The Enrolling Clerk is responsible for preparing this copy for the Senate.

Although the Senate and the President cannot typically circumvent the House to pass a law, there is a loophole. In Missouri v. Holland (1920), the US Supreme Court ruled that a self-executing bird migration treaty could override state law. This established that a treaty may supersede a previously enacted federal statute and that treaties involving taxation are common. Thus, the President and a two-thirds majority in the Senate, in collaboration with a foreign country, can use a treaty to achieve legislative goals that the House opposes. However, it is important to note that the treaty cannot be a sham and must have a genuine international component.

Amendments

The legislative process in the United States is a complex and detailed procedure. It involves the Senate and the House of Representatives, both of which are part of Congress. The process begins with a legislative proposal, which can come from various sources, including state legislatures, the President's Cabinet, or the President. This proposal is then drafted into a bill, which must pass through both the Senate and the House of Representatives. The Senate and the House have different procedures, with the House using majority votes and the Senate employing deliberation and debate before voting.

During the legislative process, amendments can be offered to the bill. These amendments are suggestions to change parts of the bill and can be offered with little to no prior formal preparation. They may be offered during debates and can significantly alter the language and content of the bill. Amendments can be used to insert new language, replace existing words, or remove parts of the bill. However, it is crucial that the final version of the bill, with all its amendments, is an exact copy of what was passed by the House. This precision is essential for maintaining the integrity of the legislative process.

In the context of international law, amendments can also play a role. While Congress does not directly pass international laws, it plays a crucial role in treaty-making. Treaties are agreements between nations, and in the United States, they can override previously enacted statutes. The President and the Senate, with the support of a foreign country, can use treaties to accomplish legislative goals that the House may not agree with. This process, as outlined in the case of Missouri v. Holland (1920), demonstrates how amendments and changes to the law can occur through treaty-making, even without the direct involvement of the House of Representatives.

Treaties

The US Constitution grants the Senate the sole power to provide advice and consent on treaties. This means that the Senate must approve a treaty by a two-thirds majority vote for it to be ratified. However, the House of Representatives also has an important role in this process. While the House does not directly vote on the treaty itself, it has influence over related legislation and funding. For example, the House can pass laws to implement the treaty's provisions or withhold funding for its implementation if it disagrees with the treaty.

The relationship between the Senate and the House of Representatives in the treaty-making process is complex. While the Senate has the primary role in ratifying treaties, the House can influence the outcome through its legislative powers. This dynamic was highlighted in the case of Missouri v. Holland (1920), where the US Supreme Court ruled that a self-executing bird migration treaty could override state law. This case set a precedent for the power of the President and the Senate, in cooperation with a foreign country, to use treaties to achieve legislative goals that the House of Representatives may oppose.

It is important to distinguish between self-executing and non-self-executing treaties. Self-executing treaties can be directly enforced by courts, while non-self-executing treaties require congressional intervention in the form of passing enabling legislation. In the case of Foster v. Neilson, Justice Marshall clarified this distinction, stating that non-self-executing treaties "address themselves to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court".

Additionally, it is worth noting that treaties can override previously enacted statutes, and statutes can override previous Senate-ratified treaties. This unique aspect of US law differs from most countries, where treaties typically take precedence over ordinary domestic laws. Nevertheless, the power of treaties to override statutes is not unlimited, as treaties cannot violate constitutional rights or infringe on certain exclusive powers of Congress, such as appropriations and impeachment.

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