Treaty Clause

The Treaty Clause of the United States Constitution establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States 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.

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Background

Treaties under the Articles of Confederation

As with the drafting of the U.S. Constitution as a whole, the Treaty Clause was influenced by perceived flaws and limitations of the Articles of Confederation, the first governmental framework of the United States. The Articles established a weak central government and accorded significant autonomy and deference to the individual states. The unicameral Congress of the Confederation was the sole national governing body, with both legislative and executive functions, including the power to make treaties. However, to take effect, treaties needed the approval of a supermajority of states, a high bar that prevented many foreign pacts from being made. Although states were obligated by the Articles not to "interfere" with Congress' international commitments, in practice they often ignored or even defied such agreements.
The weakness of the Articles with respect to foreign affairs was most pronounced with respect to the Treaty of Paris with Great Britain, which stipulated that Congress protect the property rights of British creditors and Loyalists. Many state governments either failed to enforce the treaty or took measures to deliberately violate it. In response to protests by the British government, the U.S. Secretary for Foreign Affairs John Jay, could only propose that Congress request state legislatures to repeal all legislation that conflicted with the treaty and to authorize state courts to enforce it. While a bare majority of states complied to varying degrees, the inability of the national government to follow through on its obligations to foreign powers proved to be both an international embarrassment and potentially damaging to national interests; many Founding Fathers worried that nations would likewise renege on treaties with the United States or refrain from entering treaties that would be beneficial to trade and commerce.

Debate about treaty making in the Constitutional Convention

In response to various concerns about the ineffectualness of the Articles, a Constitutional Convention was held in 1787 to debate and draft a more robust governing document. During the Convention, it was initially contemplated that the U.S. Senate, the newly proposed upper house of Congress, would have the power to make treaties. Just ten days before the Convention adjourned, it was decided that these powers would be shared with the President. Many delegates cited the established international tradition of executives holding exclusive power over foreign relations and agreements; the participation of the Senate through the "advice and consent" mechanism was added as something of a compromise.
Leading federalists like John Jay, James Madison, and Alexander Hamilton all supported this arrangement, particularly the amount of agency given to the President relative to the Senate. In Federalist No. 64, Jay argued that while the Senate would check presidential powers in treaty making, the President would have the power, when necessary, to negotiate international agreements without senatorial approval. Madison, hailed as the Father of the Constitution, described the Treaty Clause as giving the Senate only "partial agency" in the President’s foreign-relations power. Hamilton argued in Federalist ''No. 75'' that the Article II procedure made the two branches "appropriately combined" in foreign affairs:

The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them

By contrast, Rufus King, who had participated in the Convention, declared as a Senator in 1818 that "the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circumstances, they may think such advice expedient." Likewise, several prominent delegates at the Convention argued unsuccessfully for the House of Representatives to participate in treaty-making. However, the idea was widely rejected, due to the fact that the House was a much larger body than the Senate, and thus would be less likely to act decisively or keep certain sensitive agreements secret. Additionally, delegates from smaller states were wary of being disadvantaged in foreign affairs, since the House benefited more populous states; by contrast, the Senate guaranteed every state an equal voice through two senators, regardless of population.

Treaties as "law of the land"

Federal statutes and treaties are similarly regarded as the "supreme law of the land" per the Supremacy Clause of the U.S. Constitution, with "no superior efficacy... given to either over the other". Thus, by virtue of ratification, a treaty is incorporated into the body of U.S. federal law no differently than a legislative act.
As with statutes, treaties are subject to judicial interpretation and review. The legally binding nature of treaties under the Constitution has been consistently recognized by the courts; as early as 1796, the U.S. Supreme Court, in Ware v. Hylton, applied the Supremacy Clause for the first time in ruling that a treaty superseded conflicting state law. Although the Ware decision did not address the Treaty Clause explicitly, it 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 honoring treaties.
Shortly after the Ware ruling, in the 1801 case, United States v. Schooner Peggy, the court cited a treaty in support of a private citizen's lawsuit against the government, and for the first time elaborated upon the legal significance of constitutionally ratified international agreements:

It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive act, independent of and unconnected with other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence improper.

Although courts have since differed on the enforceability of some types of international agreements, as well as on the precise scope of a treaty's legal obligations, it is generally agreed by constitutional scholars and the judiciary that treaties are generally as binding as federal law.

Entry into force

U.S. 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 U.S. law; in the 1829 case, Foster v. Nielson, Chief Justice John Marshall, while affirming that a treaty is constitutionally the "law of the land", first 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.

In Missouri v. Holland the Supreme Court ruled that the constitutional power to make treaties is separate from the other enumerated powers of the federal government; hence 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, 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.
The Supreme Court clarified the enforceability of treaties in Medellín v. Texas, 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 Medellin decision likewise limited the President's ability to unilaterally enforce an international agreement without the explicit delegation of Congress.