The Road To Enactment: Treaties To Laws

The process of a treaty becoming law varies depending on the country's government and legislative system. In the United States, for example, the President has the power to negotiate treaties, which then require a two-thirds vote of approval from the Senate to be ratified. This process is outlined in the Treaty Clause of the United States Constitution, which establishes the procedure for ratifying international agreements.

The United States Constitution also distinguishes between self-executing treaties, which do not require additional legislative action, and non-self-executing treaties, which must be implemented by an act of the legislature.

The US Constitution gives the Senate the power to approve treaties by a two-thirds vote

The Senate's role in this process is to provide advice and consent, empowering the President to proceed with ratification. This means that the Senate does not have the power to ratify treaties, but instead takes up a resolution of ratification, formally giving its advice and consent. The President then has the final responsibility for completing the treaty-making process, deciding whether to make the final decision to enter the treaty on behalf of the United States.

The treaty-making process typically begins with a member of the Executive Branch negotiating the terms of a treaty, after which the President or another Executive Branch official signs the completed draft. The President then submits the treaty to the Senate, which 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's authority in this process is generally limited to either disapproving or approving a treaty, with approval including the power to attach conditions or reservations to the treaty. The President then has the choice to ratify the treaty or not, as they see fit.

In addition to treaties, there are also executive agreements and congressional-executive agreements, which are other mechanisms for making international agreements. Executive agreements are entered into unilaterally by the President pursuant to constitutional executive powers and are binding on the parties under international law, while congressional-executive agreements require simple majorities in both the Senate and the House of Representatives, followed by the signature of the President.

The President is the primary negotiator of treaties

The President's role as the primary treaty negotiator is further supported by historical precedent and long-standing practices. Since the early days of the Republic, the President has been solely responsible for negotiating the terms of treaties, with the Senate's role limited to providing advice and consent. This separation of powers was established by President George Washington, who set the precedent of presenting completed treaties to the Senate for approval, rather than seeking their advice during the negotiation process.

The Constitution grants the Senate the power to approve treaties by a two-thirds vote, demonstrating the importance of the Senate's role in providing a check and balance to the President's power. However, the President has the final authority to ratify or reject a treaty, even after receiving the Senate's advice and consent.

While the President is the primary negotiator, it is important to note that the treaty-making process involves collaboration between the executive and legislative branches. Members of the executive branch, such as the Secretary of State, may play a role in negotiating the terms of a treaty. Additionally, Congress can influence the process by enacting legislation that guides the executive branch's international negotiations.

In summary, the President's role as the primary negotiator of treaties is a key aspect of the treaty-making process in the United States, with the Senate and other branches providing checks and balances to ensure a robust and effective system of international agreement ratification.

Treaties are regarded as the supreme law of the land

For a treaty to become binding, it requires the advice and consent of a two-thirds supermajority of the Senate. This process is known as "advice and consent," and it gives the Senate the authority to approve or disapprove a treaty, with the latter including the power to attach conditions or reservations. The President then has the choice to ratify the treaty or not.

The concept of treaties as the "supreme law of the land" has been reaffirmed by the Supreme Court throughout history. In the case of Ware v. Hylton in 1796, the Court applied the Supremacy Clause for the first time, ruling that a treaty superseded conflicting state law. This set a precedent that both states and private citizens were bound to comply with the treaty obligations of the federal government.

The distinction between self-executing and non-self-executing treaties is also important. Self-executing treaties are those that have domestic force in U.S. courts without requiring additional legislation. On the other hand, non-self-executing treaties need further legislative action from Congress to be implemented into domestic law.

The status of treaties as the supreme law of the land is not absolute, however. The Supreme Court has clarified that treaties cannot violate the individual rights provisions of the Constitution, as held in the case of Reid v. Covert (1957). Additionally, treaties cannot abrogate the Bill of Rights, as per the ruling in Medellín v. Texas (2008).

In conclusion, while treaties are generally regarded as the supreme law of the land, their legal status is shaped by the interplay between the Treaty Clause, the Supremacy Clause, and other constitutional provisions. The process of treaty-making and their implementation into domestic law involves a complex interaction between the executive and legislative branches of the U.S. government.

Treaties can be self-executing or non-self-executing

Self-executing treaties are those that have domestic force in US courts without further legislation. In other words, they do not require additional legislative action to take effect.

Non-self-executing treaties, on the other hand, require further action by the legislature before they can become a rule for the court. This means that the legislature must execute the contract before it can be enforced.

The distinction between self-executing and non-self-executing treaties is important because it determines whether or not a treaty can be directly enforced by US courts. If a treaty is self-executing, it can be directly enforced by US courts as it is considered to be equivalent to an act of the legislature. However, if a treaty is non-self-executing, it cannot be directly enforced by US courts until the legislature has taken action to implement it into domestic law.

The determination of whether a treaty is self-executing or non-self-executing depends on the nature of the treaty and the obligations it imposes. Treaties that define the rights and obligations of private individuals and lay down general principles for military, naval, or administrative officials are usually considered self-executing. On the other hand, treaties that require the payment of money, the cession of territory, or the guarantee of territory or independence are typically considered non-self-executing.

It is important to note that the distinction between self-executing and non-self-executing treaties only applies under US law and does not affect the binding status of accords under international law.

The Treaty Clause permits treaties to be made on subjects beyond the federal government's powers

The Treaty Clause, or Article II, Section 2, Clause 2 of the United States Constitution, establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the US and other countries, and holds that the advice and consent of a two-thirds supermajority of the Senate renders a treaty binding with the force of federal law.

The Supreme Court ruled in Missouri v. Holland (1920) that the constitutional power to make treaties is separate from the other enumerated powers of the federal government. This means that treaties can be used to legislate in areas otherwise within the exclusive authority of the states, and by implication, in areas not within the scope of the federal government or its branches.

However, this broad interpretation was circumscribed in Reid v. Covert (1957), which held that the Bill of Rights could not be abrogated by a treaty. The ruling is widely interpreted as limiting the ability of treaties to circumvent constitutional restrictions overall.

In addition, the Supreme Court clarified the enforceability of treaties in Medellín v. Texas (2008), a decision that is widely interpreted by both courts and jurists as further limiting the power of treaties. The court ruled that treaties, even if otherwise constituting an international obligation, do not automatically have the force of domestic law unless they are explicitly "self-executing" in the text or implemented by an act of Congress.

The Treaty Clause permits the President to terminate treaties according to their terms, because this traditional executive power was not limited by the Treaty Clause. However, the President cannot terminate treaties in violation of their terms, because the Supremacy Clause makes treaties, along with statutes and the Constitution itself, the "supreme Law of the Land".

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