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T, Treaties and Treaty Power.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Treaties and Treaty Power.

In one sense, the Supreme Court has played a minor role in charting the contours of the treaty power and in interpreting treaty terms. No part of any treaty has been held unconstitutional by the Supreme Court, and only a few have been subject to constitutional attack before the Court. Moreover, through its reluctance to become involved in disputes between the political branches concerning the treaty power, the Court has nurtured the understanding that the political branches should shape the nation’s foreign policy largely free from judicial supervision (see foreign affairs and foreign policy). This reticence has contributed to the growth of presidential power over foreign affairs, but the federal judiciary has contributed to the evolution of the treaty power. On a few important occasions, the Court has determined the place of treaties in the hierarchy of federal and state law, and it has ruled that treaties are, like other exercises of federal power, subject to constitutional limitations.

The framers of the Constitution required that the president make treaties, but only with the advice and consent of the Senate. It forbade treaty making by the states and declared in the Supremacy Clause of Article VI that treaties, like the Constitution and laws of the United States, shall be the supreme law of the land and therefore binding on the states. While it is clear that there must be joint participation in treaty making, the framers did not otherwise prescribe limits on treaties or offer a rule for deciding a conflict between treaties and the Constitution or the laws.

Before *World War I, the major debates about the treaty power concerned the supremacy of treaties to state law. The framers had required that those who made treaties—the president (elected by state electors) and the Senate—be especially representative of state interests (see state sovereignty and states’ rights). Nonetheless, states often contended that treaties could not deal with matters reserved to them by the *Tenth Amendment. Although the Court early held that treaties override inconsistent state law, not until 1920 did the Supreme Court definitely establish the scope of the treaty power relative to the states.

*Missouri v. Holland (1920) involved the validity of a Canadian-American treaty regulating the hunting of migratory birds. The state of Missouri, locus of a principal midcontinent flyway of migrating waterfowl, challenged the treaty as an invasion of powers reserved to the states by the Tenth Amendment. In rejecting Missouri’s challenge, the Court, speaking through Justice Oliver Wendell *Holmes, said in *obiter dictum, “There may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could” (p. 433). Holmes seemed to suggest that the constitutional restraints on the treaty power were feebler than those on the other enumerated powers of Congress. But state power is not an inherent limitation on the treaty power.

The language of the Supremacy Clause of Article VI, which identifies treaties together with the Constitution and the laws of the United States as “the supreme Law of the Land,” was held to mean in Foster v. Neilson (1829) that a treaty must “be regarded in courts … as equivalent to an act of the legislature” (p. 254) and thus that a treaty is not valid if it contravenes the Constitution. The controversy engendered by the Bricker Amendment in the early 1950s resurrected fears generated by Missouri v. Holland that the treaty power might somehow be superior to constitutional restraint. In Reid v. Covert (1957), the Court held that civilian dependents of American military personnel overseas are entitled to a civilian trial, notwithstanding a contrary statute, and a plurality stated that no treaty or executive agreement “can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution” (p. 16).

The Supremacy Clause has had an additional effect on the status and consequences of treaties. As the supreme law of the land, equivalent to an act of Congress, a treaty “operates of itself without the aid of any legislative provision [unless] the terms of the stipulation import a contract [in which case] the legislature must execute the contract before it can become a rule for the Court” (p. 254). On the other hand, if a treaty and a law of Congress are inconsistent, the Court has held that the most recent prevails. Viewing the text of the Supremacy Clause, the Court’s is one reasonable interpretation of the relationship between treaties and statutes, but it is not necessarily the one that was in the minds of the framers. The Supremacy Clause says that treaties and statutes are supreme over state law, not that they are equal to each other. The Court’s interpretation is nonetheless well settled and has rendered academic all arguments that Congress or the treaty makers should prevail where there is a conflict.

The Court has had little to say about the process of making, interpreting, or terminating treaties, but its silence has had important ramifications. In (p. 1027) 1979, the Court ordered the dismissal of Senator Barry Goldwater’s challenge to President Jimmy Carter’s action terminating a mutual defense treaty with Taiwan without seeking the Senate’s prior approval. Only Justice William J. *Brennan voted to uphold the president’s decision on the merits in *Goldwater v. Carter, and his opinion was based on what he viewed as the president’s plenary power regarding recognition of foreign governments. Justice William H. *Rehnquist’s plurality opinion stated that the role of the Senate in treaty termination was a nonjusticiable *political question in light of the silence of the constitutional text on the question and because termination processes may vary in different situations (see also justiciability). Justice Lewis *Powell supplied the fifth vote for dismissal, although he disagreed with Rehnquist’s political question analysis. For Powell, the case was not *ripe for decision because the Senate as a whole had not acted to express opposition to the president’s termination decision.

As a result of the Court’s decision not to resolve the Goldwater case, the *Reagan administration terminated, modified, and “reinterpreted” many treaties without seeking the advice and consent of the Senate. Whether or not Goldwater can be read as allowing so much, the effect of the Court’s reticence has been to tip the locus of foreign affairs power further in the direction of the president and away from Congress.

Before and since Goldwater, however, presidents have conducted foreign relations unilaterally by making international agreements that concern subjects properly within the domain of treaty making but that, because of the form they take, are not subject to the procedural requirement of obtaining the support of two-thirds of the Senate. While the Supreme Court has not explicitly defined the scope of the president’s power to make international executive agreements without the Senate’s participation, dicta from a few decisions of the Court suggest that such agreements may concern the same matters as treaties. The possibility that this unilateral agreement making may negate the check on presidential discretion supplied by the Senate has not as yet produced a justiciable controversy. Instead, the Court has validated executive agreements in various contexts where the Senate has not objected to the president’s action.

See also separation of powers.

Louis Henkin, Foreign Affairs and the Constitution (1972). Laurence Tribe, American Constitutional Law, 2d ed. (1988).

William C. Banks