Historical Background on Treaty-Making Power

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Jurists, courts, and legal analysts have long viewed a country’s capacity to enter into international pacts as an essential element of national sovereignty.1 Under the British system of treaty-making, the power to conclude and ratify treaties falls within the prerogative of the Crown.2 After the United States achieved its independence from Great Britain, the treaty-making power was transferred to the newly established Congress under the Articles of Confederation.3 But the United States soon faced practical difficulties in attempting to negotiate treaties through a large legislative body.4 And even when the national government was able to conclude treaties, the new nation often found itself unable to perform its treaty obligations without the cooperation of the state governments.5

By the time of the Constitutional Convention, the delegates had largely come to agree that the national government required a stronger power to enforce treaties throughout the United States, but there were many differences of opinion as to where the newly enhanced treaty power should reside.6 In August 1787, the Committee of Detail proposed an early draft of the Constitution that would have provided the Senate alone with the power to make treaties.7 But the delegates raised widespread objections to the provision.8 Some delegates proposed that treaty-making include a role for the President or be granted to the President exclusively.9 Others argued that both chambers of Congress should be included in the process.10 Ultimately, the delegates decided that the Executive Branch was best equipped to act with the confidentiality and efficiency necessary for treaty negotiations.11 In the Federalist No. 64, John Jay expanded on this rationale, arguing that individuals with useful information in treaty negotiations would “rely on the secrecy of the President, but . . . would not confide in that of the Senate, and still less in that of a large popular Assembly.” 12

While the delegates to the Constitutional Convention concluded that the President should play a role in treaty-making, they also decided that no single component of the government should have the power to bind the United States to a treaty.13 Because of treaties’ dual nature as tools of foreign policy and part of the law of the land, the Federalist Papers describe treaty-making as a “peculiar” combination of two functions that did not fit neatly into the founding era understanding of separation of powers.14 In the Federalist Papers, Alexander Hamilton and John Jay argued that treaty-making contains elements of executive power because it involves diplomacy and the management of foreign relations.15 Hamilton and Jay also believed treaty-making invokes the legislative power because treaties can have the force of domestic law.16 As Hamilton summarized in the Federalist No. 75, the power to make treaties belongs “neither to the legislative nor to the executive.” 17 For that reason, the delegates to the Constitutional Convention saw fit to divide this dual natured power between dual branches.18

The delegates chose to include the Senate in the treaty-making process rather than the House of Representatives because they believed the House would be too large and that its membership would change too often to act with the secrecy and speed necessary for treaty-making.19 The delegates also believed the Senate would represent and protect the interests of the states,20 which the Constitution denies the power to make treaties.21

The delegates viewed the requirement that a supermajority of two thirds of Senators present provide their advice and consent as a method to prevent the federal government from making treaties that would promote regional interests or discriminate against a minority of states.22 In particular, the Southern states were concerned that the federal government would give Spain navigation rights on the Mississippi River, which were essential to the Southern economy, in exchange for trade concessions that would benefit the Northern economy.23 And the Northern states feared they could lose access to fisheries in Newfoundland through a treaty.24 The Treaty Clause’s supermajority requirement—one of several in the Constitution25 —was designed to alleviate these concerns by allowing a minority of states, through their representatives in the Senate, to block treaties that could disproportionately disadvantage segments of the nation.26

The exact number of Senators required to approve a treaty under the Treaty Clause differs from its predecessor provision in the Articles of Confederation. Whereas the Articles of Confederation required nine of thirteen states to approve all treaties, the Framers deliberately changed the advice and consent threshold to “two thirds of the Senators present[.]” 27 Hamilton explained in the Federalist No. 75 that the change from a fixed number to a percentage would account for the possibility that new states would join the union.28 Hamilton also argued that it would limit individual Senators’ ability to block a treaty simply by declining to appear in the Senate for a vote.29 And whereas each state voted as a unit under the Articles, the Treaty Clause permits Senators to vote individually, creating the possibility that one state’s Senator could vote for a treaty and the other against it.30

Many scholars have concluded that the Framers intended “advice” and “consent” to be separate aspects of the treaty-making process, although there is still some debate on the issue.31 According to the prevailing interpretation, the “advice” element required the President to consult with the Senate during treaty negotiations before seeking the Senate’s final “consent.” 32 President George Washington appears to have understood that the Senate had such a consultative role,33 but he and other early Presidents soon declined to seek the Senate’s input during the negotiation process.34 In modern treaty-making practice, the Executive Branch generally is responsible for negotiations, and the Supreme Court stated in dicta that the President’s power over treaty negotiations is exclusive.35

Although Presidents since Washington have not formally consulted with the Senate as a body, the Senate maintains an aspect of its “advice” function through its conditional consent authority.36 In considering when to provide its advice and consent to a treaty, the Senate may condition its approval on reservations,37 declarations,38 understandings,39 and provisos40 concerning the treaty’s application.41 Under established U.S. practice, the President cannot ratify a treaty unless the President accepts the Senate’s conditions.42 If accepted by the President, these conditions may modify or define U.S. rights and obligations under the treaty.43 The Senate also may propose to amend the text of the treaty itself, after which other nations that are parties to the treaty must consent to the changes for them to take effect.44

1: See, e.g., Emer De Vattel, The Law of Nations, or Principles of the Law of Nations, Applied to the Conduct and Affairs of Nations and Sovereigns 67 (Liberty Fund ed., 2008) (originally published 1758) (defining “what is meant by a nation or state” and including the ability to be “susceptible of obligations and rights” ). See also (U.K., Fr., Italy, Japan v. Germany), Judgment, 1923 P.C.I.J. (ser. A) No. 1, at 25 (Aug. 17) ( “[T]he right of entering into international engagements is an attribute of State sovereignty.” ); Anne Peters, Treaty-Making Power, in 10 The Max Planck Encyclopedia of Public International Law 57 (Rudiger Wolfrum ed., 2012) ( “Treaty-making power is often considered as a corollary, or as a fundamental attribute, of the international legal personality understood as the ability to have rights and obligations under international law.” ); Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 13 (1963) (describing the “capacity to enter into international relations with other states” as one of the traditional criteria necessary for independent statehood).
2: See James Crawford, Brownlie’s Principles of Public International Law 63 (8th ed. 2012). See also 1 William Blackstone, Commentaries on the Laws of England 257 (Lippincott ed., 1859) ( “It is also the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes.” ). In modern usage, “the Crown” generally refers to the Executive Branch of the British government rather than an individual monarch. See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 75 & n.290 (1979) [hereinafter Bestor, Respective Roles].
3: Articles of Confederation of 1781 art. IX, para. 1.
4: See Bestor, Respective Roles, supra note 2, at 49–72.
5: See ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties.
6: See, e.g., 2 The Records of the Federal Convention of 1787 297, 392–93, 495, 498–99, 438, 540–41, 538–50, 638 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (debate over treaty-making power during the Constitutional Convention); 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 263–65 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (discussion of treaty-making power during the South Carolina ratifying convention); id. at 306 (statements concerning the treaty-making power by Alexander Hamilton to the New York ratifying convention); 2 Documentary History of the Ratification of the Constitution 563 (Merrill Jensen et al., eds.) (arguments concerning the Treaty Clause to the Pennsylvania ratifying convention).
7: See 2 Farrand’s Records, supra note 6, at 176, 183.
8: Id. at 393 ( “Mr. [Edmund] Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject[.]” ). See also Bestor, Respective Roles, supra note 2, at 93–96 (discussing objections to the Senate the exclusive treaty-making authority).
9: For example, John Mercer of Maryland argued that the “Senate ought not to have the power of treaties” at all, contending that the power should reside in the Executive alone. 2 Farrand’s Records, supra note 6, at 297. And James Madison argued that “the President should be an agent in Treaties” because “the Senate represented the States alone” rather than the federal government. Id. at 392–93.
10: See id. at 538 (motion by James Wilson of Pennsylvania to require the advice and consent of both chambers of Congress before conclusion of a treaty).
11: See id. at 499 (proposal by the Committee of Postponed Parts to allow presidential participation in treaty-making). See also The Federalist No. 75 (Alexander Hamilton) (explaining the rationale for the “union of the Executive with the Senate” in treaty-making); The Federalist No. 64 (John Jay) ( “[W]e see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from [the Senate’s] talents, information, integrity, and deliberate investigations, on the one hand, and from [the President’s] secrecy and despatch on the other.” ).
12: The Federalist No. 64 (John Jay).
13: See, e.g., 2 Debates in the Several State Conventions, supra note 6, at 507 (statement of James Wilson) ( “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.” ).
14: See The Federalist No. 75 (Alexander Hamilton) ( “[T]he particular nature of the power of making treaties indicates a peculiar propriety in that union” of the Executive with the Senate in making treaties.).
15: Id. ( “The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions[.] . . . [T]he ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation[.]” ); The Federalist No. 64 (John Jay) (discussing the benefits of authorizing the President to negotiate treaties).
16: See The Federalist No. 75 (Alexander Hamilton) ( “[T]he 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.” ).
17: Id.
18: Id. See also supra notes 6, 8.
19: See at 2 Farrand’s Records, supra note 6, at 534 (vote 475) (voting, ten states to one, against the motion to include the House of Representatives in the treaty-making process); Id. at 538 ( “[Roger Sherman of Connecticut] thought . . . that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature.” ); The Federalist No. 75 (Alexander Hamilton) ( “The fluctuating and, taking its future increase into the account, the multitudinous composition of [the House of Representatives], forbid us to expect in it those qualities which are essential to the proper execution of such a trust [necessary to conclude a treaty].” ); The Federalist No. 64 (John Jay) ( “They who wish to commit the [treaty] power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects[.]” ).
20: See 3 Farrand’s Records, supra note 6, at 348 (statement of William Davie to the North Carolina Ratifying Convention) ( “[T]he extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the senators, as representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion that the little state of Rhode Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts, yet the small states would not consent to confederate without an equal voice in the formation of treaties. . . . It therefore became necessary to give them an absolute equality in making treaties.” ); 2 Farrand’s Records, supra note 6, at 392 (James Madison advocating for the President to play a role in treaty-making because “the Senate represents the States alone.” ).
21: See U.S. Const. art. I, § 10, cl. 1. See also ArtI.S10.C1.1 Foreign Policy by States.
22: See infra notes 23–24; Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States 117 Yale L.J. 1236, 1282 (2008) [hereinafter Hathaway, Treaties’ End] (stating that the focus of the supermajority requirement in the Senate “was not the result of general or theoretical concerns. It was, instead, formed in direct response to a recent controversy over treaty negotiations with Spain” implicating regional interests); Bestor, Respective Roles, supra note 2, at 100 (discussing the role of sectional interests in the crafting of the treaty power at the constitutional convention); Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, in 1 Perspectives in American History 272–74 (1984) (analyzing historical events influencing the two-thirds requirement in the Treaty Cause).
23: For analysis of the impact of negotiations with Spain over navigation rights to the Mississippi, see Charles Warren, The Mississippi River and the Treaty Clause of the Constitution, 2 Geo. Wash. L. Rev. 271, 274 (1934).
24: See, e.g., 3 Debates in the Several State Conventions, supra note 6, at 604 (statement of George Mason) ( “The Newfoundland fisheries will require that kind of security which we are now in want of. The Eastern States therefore agreed, at length, that treaties should require the consent of two thirds of the members present in the Senate.” ); R. Earl McClendon, Origin of the Two-Thirds Rule in Senate Action Upon Treaties, 36 Am. Hist. Rev. 768, 768–69 (1931) (providing a historical analysis of the importance of Newfoundland fisheries and their role in leading to the two-thirds requirement in the Treaty Clause).
25: See U.S. Const. art. I, § 3, cl. 6 (convictions on impeachment); Id. § 5, cl. 2 (expulsion of a Member of Congress); Id. § 7, cl. 2 (overriding presidential veto); Id. art. V (proposing a constitutional amendment in Congress); Id. amend. XIV, § 3 (restoring the ability of those who “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof” to serve in public office); Id. amend. XXV, § 4 (congressional approval of removal of the President for inability to discharge powers and duties of the office after the Vice President and the Cabinet approve such removal and after the President contests removal).
26: See supra notes 22–24.
27: Compare Articles of Confederation of 1781 art. IX, with U.S. Const. art. II, § 2, cl. 2.
28: See The Federalist No. 75 (Alexander Hamilton) (discussing the “probable augmentation of the Senate, by the erection of new States” ).
29: Id. ( “[M]aking a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. . . . [M]aking the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect.” )
30: For example, in voting on the first treaty that was to be ratified by the United States after the adoption of the Constitution—dubbed the Jay Treaty because it was negotiated by the first Chief Supreme Court Justice of the United States, John Jay, who was appointed a special envoy to Great Britain despite his role in the Judicial Branch—Senators from six states split their votes. See Amity, Commerce, and Navigation (Jay Treaty): Treaty of Amity, Commerce and Navigation, between His Britannick Majesty;—and The United States of America, by Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116; 4 Annals of Cong. 862 (1795).
31: Compare, e.g., Louis Henkin, Foreign Affairs and the U.S. Constitution 177 (2d ed. 1996) ( “As originally conceived, no doubt, the Senate was to be a kind of Presidential council, affording him advice throughout the treaty-making process and on all aspects of it[.]” ); Arthur Bestor, “Advice” from the Very Beginning, “Consent” When the End Is Achieved, 83 Am. J. Int’l L. 718, 726 (1989) ( “[T]he use of the phrase ‘advice and consent’ to describe the relationship between the two partners clearly indicated that the Framers’ conception was of a council-like body in direct and continuous consultation with the Executive on matters of foreign policy.” ); Rakove, supra note 22, at 249 ( “Advice . . . was to be given at every stage of diplomacy, from the framing of policy and instructions [to treaty negotiators] to the final bestowal of consent.” ); Ralston Hayden, The Senate and Treaties, 1789–1817, at 6 (1920) ( “[T]he [Senate] really was a council of advice upon treaties and appointments—a council which expected to discuss these matters directly with the other branch of the government.” ); Hathaway, Treaties’ End, supra note 22, at 1278–81 (discussing the Senate’s role as a “Council of Advice” to the President), with Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 139 (2007) ( “'[A]dvice and consent’ . . . seems capable of . . . meaning[ ] an after-the-fact review of the President’s proposal, coupled with ‘advice’ that the President process or adopt an alternate course.” ).
32: See, e.g., Henkin, supra note 31, at 177; Bestor, supra note 31, at 726; Rakove, supra note 22, at 249; Hathaway, Treaties’ End, supra note 22, at 1278–81; Hayden, supra note 31, at 6.
33: On an occasion that has been described as the first and last time the President personally visited the Senate chamber to receive the Senate’s advice on a treaty, President Washington went to the Senate in August 1789 to consult about proposed treaties with the Southern Indians. See 1 Annals of Cong. 65–71 (1789). But observers reported that he was so frustrated with the experience that he vowed never to appear in person to discuss a treaty again. See, e.g., William Maclay, Sketches of Debate in the First Senate of the United States 122–24 (George W. Harris ed., 1880) (record of the President’s visit by Senator William Maclay of Pennsylvania); Hayden, supra note 31, at 21–26 (providing a historical account of Washington’s visit to the Senate).
34: See VI Memoirs of John Quincy Adams 427 (Charles Francis Adams ed., 1875) ( “[E]ver since [President Washington’s first visit to the Senate to seek its advice], treaties have been negotiated by the Executive before submitting them to the consideration of the Senate.” ).
35: See Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015) ( “The President has the sole power to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action.” ); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) ( “[T]he President . . . makes treaties with the advice and consent of the Senate; but he alone negotiates.” ).
36: See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 405 (2000) ( “The exercise of the conditional consent power has been in part a response by the Senate to its loss of any substantial ‘advice’ role in the treaty process.” ); Samuel B. Crandall, Treaties, Their Making and Enforcement 81 (2d ed. 1916) ( “Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate power in treaty making by means of amendments.” ). Not all legal scholars view the Senate’s conditional consent authority as an effective substitute for the role as a council of advice. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 905 (1995) (describing the Senate’s assertion of conditional consent power as a “dysfunctional” and counterproductive system generated after “the Senate lost its effective capacity to give advice” ).
37: As a general matter, “[r]eservations change U.S. obligations without necessarily changing the text, and they require the acceptance of the other party.” See Cong. Research Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 11 (2001) [hereinafter Treaties and Other International Agreements]. See also Restatement (Fourth) of Foreign Relations Law § 305 reporters’ n.2 (2018) [hereinafter Fourth Restatement] ( “Although the Senate has not been entirely consistent in its use of the labels, in general the label . . . ‘reservation’ [has been used] when seeking to limit the effect of the existing text for the United States[.]” ).
38: Declarations are “statements expressing the Senate’s position or opinion on matters relating to issues raised by the treaty rather than to specific provisions.” Treaties and Other International Agreements, supra note 37, at 11. See also Fourth Restatement, supra note 37, § 305 reporters’ n.2 (describing declarations as the Senate’s “policy statements about a treaty” or statements concerning the treaty’s domestic status).
39: Understandings are “interpretive statements that clarify or elaborate provisions but do not alter them.” Treaties and Other International Agreements, supra note 37, at 11. See also Fourth Restatement, supra note 37, § 305 reporters’ n.2 ( “[I]n general [the Senate uses] the label . . . ‘understanding’ when seeking to set forth the U.S. interpretation of a treaty provision[.]” ).
40: Provisos concern “issues of U.S. law or procedure and are not intended to be included in the instruments of ratification to be deposited or exchanged with other countries.” Treaties and Other International Agreements, supra note 37, at 11. See also Fourth Restatement, supra note 37, § 305 reporters’ n.2 (stating that the Senate uses the term “proviso” when “setting forth a condition relating to the process by which the President makes the treaty or the process by which it is implemented within the United States, or to impose reporting or other obligations on the President” ).
41: Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869) (stating that “the Senate are not required to adopt or reject [a treaty] as a whole, but may modify or amend it, as was done with the treaty under consideration” ); The Diamond Rings, 183 U.S. 176, 183 (1901) (Brown, J., concurring) (noting that the Senate may “make . . . ratification conditional upon the adoption of amendments to the treaty” ); Fourth Restatement, supra note 37, § 305 reporters’ n.3 (collecting lower court cases giving effect to the Senate’s conditions when interpreting or applying a treaty).
42: See United States v. Stuart, 489 U.S. 353, 374–75 (1989) (Scalia, J., concurring) ( “[The Senate] may, in the form of a resolution, give its consent on the basis of conditions. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States[.]” ); Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32–33 (1987) ( “[S]uch understandings or other conditions expressly imposed by the Senate are generally included by the President with the treaty documents deposited for ratification or communicated to the other parties at the same time the treaty is deposited for ratification. Because such conditions are considered to be part of the United States’s position in ratifying the treaty, they are generally binding on the President, both internationally and domestically, in his subsequent interpretation of the treaty.” ) (citations and footnotes omitted).
43: For discussion of historical examples of conditions attached by the Senate to treaties, see Fourth Restatement, supra note 37, § 305 reporters’ n.5.
44: For example, in giving its advice and consent to the Jay Treaty, the Senate insisted on suspending an article allowing Great Britain to restrict U.S. trade in the British West Indies. See Amity, Commerce, and Navigation (Jay Treaty): Treaty of Amity, Commerce and Navigation, between His Britannick Majesty;—and The United States of American, by Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116; S. Exec. J., 4th Cong. (1795). Great Britain ratified the Jay Treaty without objection to the Senate’s changes. See Hayden, supra note 31, at 86–88.