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.

In the Treaty Clause, the Constitution returns to the realm of foreign affairs and vests the power to make treaties in the national government. Earlier in the Constitution, Article I prohibits the states from concluding treaties and limits the states’ role in other forms of international relations.1 Article I also assigns several foreign affairs-related powers to the Legislative Branch, including powers to regulate commerce with foreign nations, define and punish offenses against the Law of Nations and on the high seas, and regulate many aspects of the military.2 In Article II’s Treaty Clause, the Constitution, for the first time, addresses international affairs from the vantage of the President’s powers. The clause vests the President, acting with the advice and consent of the Senate, with the authority to make treaties for the United States.

Treaties—which the Supreme Court traditionally defines as pacts among sovereign countries3 —have been tools of international relations since antiquity.4 After the United States won its independence from Great Britain, many Americans viewed the Articles of Confederation as a form of a treaty among the individual states of the union.5 But the Framers criticized how the Articles of Confederation addressed the new union’s treaty obligations to foreign countries.6 The Articles lacked a mechanism to ensure individual states complied with the United States’ international obligations, particularly its obligations to England under the 1783 Treaty of Peace that ended the Revolutionary War.7 When drafting the Constitution, the Framers sought to remedy this problem by including treaties among the sources of the “supreme Law of the Land” in the Supremacy Clause.8 Because of this change, treaties occupy a unique place in the constitutional system: they can operate simultaneously as domestic law of the United States and as tools of foreign policy in the form of pacts between nations.9

Elements of the treaty-making process may vary depending on the treaty, but the standard process generally operates as follows:10 a member of the Executive Branch negotiates the terms of a treaty, and the President or another Executive Branch official signs the completed draft when negotiations conclude.11 Next, the President submits the treaty to the Senate.12 If “two thirds of the Senators present” pass a resolution of advice and consent, the process shifts back to the Executive Branch.13 At this stage, the President decides whether to make the final decision to enter the treaty on behalf of the United States.14 It is thus the President, and not the Senate, who has final responsibility for completing the treaty-making process.15 However, the President has no obligation to ratify a Senate-approved treaty, and, in some cases, the President has declined to do so.16

Although many important events in U.S. foreign relations have culminated in treaties,17 the United States does not conclude all agreements with foreign nations through the process outlined in the Treaty Clause. The President regularly enters into executive agreements, which do not receive the Senate’s advice and consent, and “political commitments” and other nonlegal pacts that are not intended to be binding.18 Since the turn of the twentieth century, Presidents have increasingly used alternatives to treaties,19 which are examined in the discussion of the President’s inherent power over foreign affairs.20 The following essay focuses on treaties in the constitutional sense, meaning international agreements21 that the President concludes after receiving the Senate’s advice and consent through the process defined in the Treaty Clause.22

Footnotes

1

See ArtI.S10.C1.1 Foreign Policy by States.

2

Id.

3

See, e.g., Lozano v. Montoya Alvarez, 572 U.S. 1, 11, (2014) ( “[T]reaties . . . are primarily ‘compact[s] between independent nations[.]’” ) (first set of brackets in original) (quoting Medellín v. Texas, 552 U.S. 491, 505 (2008)); Altman & Co. v. United States, 224 U.S. 583, 600 (1912) ( “Generally, a treaty is defined as ‘a compact made between two or more independent nations, with a view to the public welfare.’” ) (citation omitted)); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ( “A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law.” ); Head Money Cases (Edye v. Robertson), 112 U.S. 580, 598 (1884) ( “A treaty is primarily a compact between independent nations.” ). Although sovereign nations are the primary subject of treaties, in modern practice, other entities, such as international organizations, occasionally have joined treaties. See generally James Crawford, Brownlie’s Principles of Public International Law 115–16 (8th ed. 2012) [hereinafter Brownlie’s Principles].

4

See generally Arthur Nussbaum, A Concise History of the Law of Nations (1954).

5

See Intro.6.1 Continental Congress and Adoption of the Articles of Confederation. See also David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 Stan. L. Rev. 1697, 1706–10 (2003) (discussing historical evidence for the conclusion that the predominant, but not universal, view at the time of the Framing was that the Articles of Confederation formed a treaty-based body); Richard Beeman, Plain, Honest Men: The Making of The American Constitution 8 (2009) ( “The Articles of Confederation, America’s first ‘constitution,’ was not really a proper constitution, but rather a peace treaty among thirteen separate and sovereign states.” ); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 237 (1996) ( “[T]he [Confederation] Congress had judicial, legislative, and executive functions more typical of a treaty organization than a sovereign government.” ).

6

See ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties.

7

See id.

8

U.S. Const. art. VI, cl. 2. For discussion of the relationship between treaties and the Supremacy Clause, see ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties, and for broader analysis of the Supremacy Clause, see ArtVI.C2.1 Overview of Supremacy Clause.

9

See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ( “A treaty is in its nature a contract between two nations, not a legislative act. . . . In the United States a different principle is established. 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.” ); The Head Money Cases, 112 U.S. at 598 ( “A treaty is primarily a compact between independent nations. . . . But a treaty may also . . . partake of the nature of municipal law[.]” ); Validity of Congressional-Executive Agreements That Substantially Modify the United States’ Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 390 (1996) (discussing the “dual nature of treaties, as instruments of both domestic and international law” ).

10

For analysis of the U.S. treaty-making process, see Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 107–56 (2001) [hereinafter Treaties and Other International Agreements].

11

Id. at 96–97. See also Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015) [hereinafter Zivotofsky II] ( “The President has the sole power to negotiate treaties[.]” ); 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.” ); Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 157 (1984) (discussing the “President’s negotiating authority with respect to bilateral treaties” ). Although the Executive Branch generally is responsible for treaty negotiations, Congress occasionally plays a role by, among other things, enacting legislation encouraging the Executive Branch to pursue certain objectives in its international negotiations. See Treaties and Other International Agreements, supra note 10, at 100–02.

12

Id. at 118 ( “All treaties are transmitted to the Senate in the President’s name” ).

13

See Zivotofsky II, 576 U.S. at 13 ( “[T]he Senate may not conclude or ratify a treaty without Presidential action.” ); Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 158 (1984) ( “Once the Senate gives its advice and consent, the treaty is returned to the President, who must ratify it by signing the instrument of ratification.” ).

14

See supra note 13. See also Restatement (Fourth) of Foreign Relations Law § 303(3) (2018) [hereinafter Fourth Restatement] ( “After the Senate provides its advice and consent, the President determines whether to ratify or otherwise make the treaty on behalf of the United States.” ). While the Restatement of Foreign Relations Law of the United States is nonbinding and prepared by a private organization, the Supreme Court has cited it on several occasions, e.g., United States v. Stuart, 489 U.S. 353, 375 (1989) (citing Restatement (Third) of Foreign Relations Law § 314 (1987)); Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984) (citing Restatement (Second) of the Foreign Relations Law § 147(1)(f) (1965)), and commentators often describe it as authoritative, e.g., Anthony S. Winer et al., International Law Legal Research 242–43 (2013).

15

See, e.g., Samuel B. Crandall, Treaties, Their Making and Enforcement 81 (2d ed. 1916) ( “[T]he approval, whether qualified or unqualified, of the treaty by the Senate is not to be confused with the act of ratification. The latter is performed by the President[.]” ); Fourth Restatement, supra note 14, § 303 reporters’ n.5 ( “Properly speaking, the Senate does not ratify a treaty; the Senate gives its advice and consent to ratification. It is the President who then ‘ratifies,’ or makes, the treaty by signing an instrument of ratification and then arranging for the deposit or exchange of the instrument, as indicated by the treaty’s terms.” ). Although the President is the final actor in expressing the United States’ assent to be bound to a treaty, additional action by Congress may be necessary to implement the treaty into domestic law. See ArtII.S2.C2.1.5 Congressional Implementation of Treaties. Once the parties to the treaty complete the processes necessary to express their final assent to be bound—often through an exchange of instruments of ratification—the President may “proclaim” the treaty, and declare it to be in force by Executive Order. See Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 158 (1984).

16

For examples when the President declined to ratify treaties that received the Senate’s advice and consent, see Crandall, supra note 15, at 97–99 and Fourth Restatement, supra note 14, § 303 reporters’ n.5.

17

See, e.g., Treaty of Peace, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80 (peace treaty with Great Britain following the Revolutionary War); Cessation of Louisiana: A Financial Arrangement—Convention Between the United States and the French Republic, U.S.-Fr., Apr. 30, 1803, 8 Stat. 206 (treaty defining the terms of the Louisiana Purchase); Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidalgo), U.S.-Mex., Feb. 2, 1848, 9 Stat. 922 (Treaty of Guadalupe Hidalgo ending the Mexican-American War and giving the United States control over what would become several southwestern U.S. states).

18

For discussion of international pacts that are not concluded through the process defined in the Treaty Clause, see ArtII.S2.C2.2.2 Legal Basis for Executive Agreements.

19

See Treaties and Other International Agreements, supra note 10, at 38–41; Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201, 1209–12 (2018).

20

See ArtII.S2.C2.2.1 Overview of Alternatives to Treaties; ArtII.S2.C2.2.2 Legal Basis for Executive Agreements; ArtII.S2.C2.2.3 Legal Effect of Executive Agreements; ArtII.S2.C2.2.5 Congressional Executive Agreements.

21

As used in this essay, the term “international agreements” refers to agreements between two or more countries (or between one or more countries and an entity, such as a public international organization, with capacity to conclude an international agreement) that is intended to be legally binding and is governed by international law. See Fourth Restatement, supra note 14, § 302 cmt. a.

22

The meaning of the term “treaty” differs in its constitutional usage when compared to international law. Under international law, the term “treaty” refers to an international agreement that is binding and governed by international law regardless of how the agreement is brought into force. See Weinberger v. Rossi, 456 U.S. 25, 31–32 (1982); Validity of Congressional-Executive Agreements That Substantially Modify the United States’ Obligations Under an Existing Treaty, supra note 9, at 389 n.2. Under U.S. law, “treaty” generally refers to a narrower subset of international agreements that receive senatorial advice and consent under the process defined in the Treaty Clause. See Weinberger, 456 U.S. at 30; Fourth Restatement, supra note 14, § 302 cmt. a. But courts occasionally have interpreted the term “treaty” in U.S. statutes to encompass executive agreements. See Weinberger, 456 U.S. at 31–32 (interpreting statute barring discrimination except where permitted by “treaty” to refer to both treaties and executive agreements); B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912) (construing “treaty,” as used in statute conferring appellate jurisdiction, to also refer to executive agreements).