Gavin Howe
Treaties are binding agreements between nations and are part of international law. In the United States, treaties are also considered federal legislation and are regarded as the supreme law of the land. While the US Constitution gives the President the power to make treaties with the consent of two-thirds of the Senate, there is ambiguity regarding the enforceability of treaties in US courts. Treaties are only enforceable in US courts if they are self-executing or have been implemented by an act of Congress. While Congress may technically override a treaty, doing so would place the US in breach of its international obligations, and US courts are generally disinclined to interpret Congressional actions as intending to override a treaty. Additionally, presidents have sometimes entered the US into international agreements without the advice and consent of the Senate, which are known as executive agreements and are still binding under international law.
Can a treaty override a law?
| Characteristics | Values |
|---|---|
| Treaty definition under international law | Any international agreement concluded between states or entities with international personality, with the intention of having international legal effect |
| Treaty definition under US law | More restricted meaning than in international law |
| Treaty ratification in the US | Requires the President to have the advice and consent of the Senate, with two-thirds of Senators concurring |
| Treaty status under US law | Considered the "supreme Law of the Land" and part of federal legislation |
| Congressional power over treaties | Congress may override a treaty, but this would place the US in breach of international law obligations |
| Treaty enforceability in US courts | Provisions in treaties are given effect as law in US courts if they are self-executing or implemented by an act of Congress |
| Treaty provisions and state laws | Treaty provisions supersede inconsistent state laws |
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What You'll Learn
The US President can veto a bill
The President is constitutionally required to state any objections to the bill in writing, and Congress must consider these objections. The veto power was first exercised on April 5, 1792, by President George Washington, who vetoed a bill outlining a new apportionment formula. While the veto power continued to be rarely used, President Andrew Jackson vetoed 12 bills during his presidency, none of which were overridden.
Congress can override a presidential veto by a two-thirds vote of both chambers. The first override of a presidential veto occurred on March 3, 1845, during the presidency of John Tyler. In addition to the presidential veto, some US mayors and county executives also possess veto powers. All US states also have a provision for the governor to veto bills passed by the legislature, and in many states, governors have additional veto powers, including line-item, amendatory, and reduction vetoes.
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Congress can override a presidential veto
The US Constitution grants the President the authority to veto legislation passed by Congress. This authority is one of the most significant tools the President can use to prevent the passage of legislation. However, it is important to note that Congress can override a presidential veto if it musters the necessary two-thirds vote of each house. This process is known as a "regular veto" and is distinct from a "pocket veto".
A regular veto occurs when the President returns unsigned legislation to the originating house of Congress within a 10-day period, usually accompanied by a memorandum of disapproval or a "veto message". To override this type of veto, both the House and the Senate must pass the legislation again with a two-thirds majority, effectively overriding the President's decision.
On the other hand, a pocket veto occurs when Congress has adjourned before the 10-day period is up, preventing the President from returning the legislation with a veto. In this case, the legislation does not become law, and it cannot be overridden by Congress. The pocket veto has been a subject of debate between Congress and the President, particularly over the interpretation of the term "adjournment".
While treaties are not directly mentioned in the context of vetoes, it is worth noting that the US Constitution outlines a specific process for their approval. The President, with the advice and consent of the Senate, has the power to make treaties, provided that two-thirds of the Senators present concur. Treaties are binding agreements between nations and become part of international law, as well as federal legislation within the United States.
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A bill is a proposal for a new law
In the United Kingdom, a proposed new law starts off as a bill that goes through seven stages of the legislative process: first reading, second reading, committee stage, report stage, third reading, opposite house, and royal assent. A bill is introduced by a member of Parliament (MP) in the House of Commons or by a member of the House of Lords. There will be a first reading of the bill, in which the proposition in the bill is read out, but there is minimal discussion and no voting. A second reading of the bill follows, in which the bill is presented in more detail and discussed between the MPs or Lords. The third stage is the committee stage, in which a committee is gathered.
In India, for a law to be made it starts off as a bill and has to go through various stages: there will be a "first reading" of the bill where the minister takes leave from the house and introduces the title and objectives of the bill. In the United States, a legislator has 10 minutes to propose a bill, which can then be considered by the House on a day appointed for the purpose. While this rule remains in place in the rules of procedure of the US Congress, it is seldom used.
If the president chooses to veto a bill, in most cases, Congress can vote to override that veto, and the bill becomes a law. However, if the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill will be vetoed by default, called a "pocket veto", and cannot be overridden by Congress.
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The Supreme Court can overrule a prior decision
The Supreme Court has the power to overrule a prior decision. The Court's treatment of precedent prompts debate over whether it should follow rules identified in prior decisions or overrule them. The Court has developed a large body of judicial decisions, or "precedents", interpreting the Constitution.
When deciding whether to overrule a precedent interpreting the Constitution, the Court considers several "prudential and pragmatic" factors. These factors seek to foster the rule of law while balancing the costs and benefits to society of reaffirming or overruling a prior holding. The Supreme Court may consider the quality of the decision's reasoning and whether the precedent's rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus "unworkable".
A third factor the Court may consider is whether the precedent departs from the Court's other decisions on similar constitutional questions. This could be because the precedent's reasoning has been eroded by later decisions or because of faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions. The Court has stated that there must be some special justification or "strong grounds" that go beyond disagreeing with a prior decision's reasoning to overrule constitutional precedent.
A survey of Supreme Court decisions suggests that predicting when the Court will overrule a prior decision is difficult. This uncertainty arises because the Court has not provided an exhaustive list of the factors it uses to determine whether a decision should be overruled or how it weighs them.
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Terms of Service cannot override written laws
While individuals are generally free to contract about anything they like, there are some things that cannot be traded and some terms that are unconscionable or against the public interest. Terms of Service (ToS) cannot override written laws. For instance, a ToS that provides for an interest rate of 12% per annum, compounded monthly, would be void if it contradicts a law that states that any provision providing for interest rates above 6% is void. In this case, the ToS would be unenforceable and not provide a defence to someone who breaks the law.
Similarly, in any jurisdiction, a contract that seeks to exclude the intervention of the courts is illegal and against public policy. For example, in Australia, a binding arbitration clause requiring parties to accept a private arbitrator's decision as final is invalid when used in a contract between parties with different bargaining powers, such as a telecom company and its customers. This is because it prevents the weaker party from pursuing a class action.
In the United States, individuals are generally free to make the best deal they can, while European countries follow a more social welfare state model, where citizens need protection from themselves. As a result, European jurisdictions are the least permissive in allowing citizens to give up their rights.
Furthermore, courts have ruled that failing to read the terms of service before signing does not give a company the right to enforce unreasonable terms. While some rights can be waived, others cannot be waived or can only be waived in specific ways. For example, an individual can waive their right to an attorney, but this waiver must be explicit and informed, and they cannot sign away their right to an attorney in a contract.
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Frequently asked questions
No, an individual cannot override a law. A law is created through a lengthy process that involves multiple stakeholders. It starts with a bill, which can be proposed by a sitting member of the U.S. Senate or House of Representatives, or be proposed during their election campaign. Once a bill is introduced, it goes through a series of discussions, research, and changes before being voted on. After passing through both houses of Congress, the bill is presented to the President for approval. Therefore, a single individual cannot override a law.
The President has the power to veto a bill, which means they can refuse to approve it. However, Congress can override the President's veto with a two-thirds vote in each house, turning the bill into law. So, while the President can initially veto a bill, their decision can be overridden by Congress.
The Supreme Court can overrule a prior decision, and its rulings are meant to be followed and applied by lower courts. However, the power to override a law typically lies with Congress, which can enact an override.
Yes, citizens can propose new laws or amendments to existing ones by petitioning their representatives in Congress. This is one way for citizens to have a direct impact on law-making.
