The President's Treaty-Making Powers And Their Legal Implications

The President of the United States has the power to negotiate treaties with the advice and consent of the Senate, with two-thirds of Senators present concurring. The President has the sole power to negotiate treaties, and once a treaty is negotiated, it is submitted to the Senate for approval or rejection. If approved, the treaty is ratified when the instruments of ratification are formally exchanged between the US and the foreign power(s). Treaties are binding agreements between nations and become part of international law, as well as federal law in the US.

The President has the sole power to negotiate treaties

The President's power to negotiate treaties is a long-standing tradition, with the Senate's role in relation to treaties being legislative in character. The Senate's authority is limited to either disapproving or approving a treaty, with the latter including the power to attach conditions or reservations. The President has the final responsibility for completing the treaty-making process, including deciding whether to make the final decision to enter the treaty on behalf of the United States.

The treaty-making process can vary depending on the treaty, but generally, a member of the executive branch negotiates the terms, and the President or another executive branch official signs the draft when negotiations conclude. The President then submits the treaty to the Senate, and if two-thirds of the Senators present pass a resolution of advice and consent, the process returns to the executive branch. At this stage, the President decides whether to enter the treaty on behalf of the United States and may proclaim the treaty and declare it in force by executive order.

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 still binding on the parties under international law, but they are legally distinct under U.S. law. Executive agreements are typically used for matters implicating diplomatic relations or national security.

The President must seek the advice and consent of the Senate to make treaties

The President of the United States must seek the advice and consent of the Senate to make treaties, which become federal law. This is outlined in Article II, Section 2, Clause 2 of the US 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".

The Treaty Clause of the US Constitution establishes the procedure for ratifying international agreements. Treaties are binding agreements between nations and become part of international law. Treaties to which the US is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land". This means that treaties are incorporated into the body of US federal law, just like a legislative act.

The President has the power to negotiate treaties, but the Senate's role is to advise and consent. The President independently negotiates and signs treaties and then presents the proposed treaty to the Senate for its approval or disapproval. The Senate does not ratify treaties; it 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 US and the foreign power(s).

The President has the final responsibility for completing the treaty-making process. The President decides whether to make the final decision to enter the treaty on behalf of the US. The President may, if dissatisfied with amendments affixed by the Senate to a proposed treaty, decide to abandon the negotiation.

The Treaty Clause vests the power to make treaties in the national government. It is designed to prevent a situation like that under the Articles of Confederation, where a supermajority of states was required for treaties to take effect, preventing many foreign pacts from being made.

The Supreme Court has consistently held that Congress can abrogate a treaty through subsequent legislative action, and that an international accord inconsistent with the US Constitution is void.

Two-thirds of the Senators present must concur for a treaty to be binding

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.

The Treaty Clause of the United States Constitution (Article II, Section 2, Clause 2) establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States and other countries. The President has the sole power to negotiate treaties. The Senate's role in relation to treaties is essentially legislative in character. The Senate does not ratify treaties. Following consideration by the Committee on Foreign Relations, the Senate either approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).

The act of ratification for the United States is the President's act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum. The President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.

The Treaty Clause vests the President, acting with the advice and consent of the Senate, with the authority to make treaties for the United States. Treaties occupy a unique place in the constitutional system: they can operate simultaneously as domestic law and as tools of foreign policy in the form of pacts between nations.

Treaties are incorporated into US federal law in the same way as legislative acts

The Treaty Clause of the US Constitution (Article II, Section 2, Clause 2) 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 President has the power to make treaties, provided that two-thirds of the Senators present concur.

The US Supreme Court has consistently recognised the legally binding nature of treaties under the Constitution. As early as 1796, the Supreme Court, in Ware v. Hylton, applied the Supremacy Clause for the first time in ruling that a treaty superseded conflicting state law. The Court held that both states and private citizens were bound to comply with the treaty obligations of the federal government, which was, in turn, bound to the "law of nations" with respect to honouring treaties.

In the 1829 case, Foster v. Nielson, Chief Justice John Marshall affirmed that a treaty is constitutionally the "law of the land". He articulated the difference between self-executing and non-self-executing agreements domestically:

> Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.

US law distinguishes self-executing treaties, which do not require additional legislative action to take effect, and non-self-executing treaties, which must be implemented by an act of the legislature. While such distinctions of procedure and terminology do not affect the binding status of accords under international law, they do have major implications under US law.

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

At a general level, a self-executing treaty is one that may be directly applied in the courts, whereas a non-self-executing treaty is one that requires legislative implementation before it may be applied by the courts (and other domestic law-applying officials).

In the US, the Supreme Court first recognised the self-execution dichotomy in an 1829 decision, Foster v. Neilson. In his opinion for the Court, Chief Justice John Marshall explained: "Our [C]onstitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature." But Chief Justice Marshall then immediately qualified this explanation, stating that a treaty is only the equivalent of a legislative act when the treaty "operates of itself without the aid of any legislative provision." When the terms of a treaty "import a contract" or suggest that some future legislative act is necessary, Marshall explained, "the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court."

Determining whether a treaty provision is self-executing is not always a straightforward task. In some cases, a treaty may specify whether it is intended to be given immediate domestic legal effect without further action. However, the Medellín Court disapproved of the notion that certain special words or phrases are necessary to make a treaty self-executing. Medellín also rejected a multi-factor analysis, which would look outside the treaty's text and analyse a variety of "practical, context-specific criteria" to determine self-execution. Instead, the Medellín Court explained that the primary question is whether the President and Senate intended the treaty to be self-executing.

Many courts and commentators agree that treaty provisions that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing. Although the Supreme Court has not addressed these constitutional limitations, lower courts have concluded that, because Congress controls the power of the purse, a treaty provision that requires expenditure of funds must be treated as non-self-executing. Other lower courts have suggested that treaty provisions that purport to create criminal liability or raise revenue must be non-self-executing because those powers are the exclusive prerogative of Congress.

The doctrine of non-self-execution appears to be in some tension with the Supremacy Clause's declaration that "all treaties" are part of the supreme law of the land. The Supreme Court has never fully explained the relationship between non-self-executing treaties and the Supremacy Clause. Some passages of Medellín suggest non-self-executing treaties have no status in domestic law. Other passages suggest self-execution addresses whether the treaty is enforceable in US courts rather than whether the treaty constitutes "law" in the constitutional sense. Opinions from some lower courts and the Office of Legal Counsel (OLC) in the Department of Justice suggest non-self-executing treaties lack any domestic legal status. However, other courts and scholars contend that, although non-self-executing treaties may not be enforced in courts, they may still form part of the supreme law of the land that is carried out and enforced outside the judicial system.

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