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.

One of the Framers’ primary objectives in including treaties in the Supremacy Clause was to ensure that the United States’ treaty obligations would prevail over inconsistent state legislation.1 During the pre-constitutional period, some states resisted complying with the 1783 Treaty of Peace with Great Britain, which prohibited the United States from placing “legal impediments” on British citizens’ attempts to collect pre-Revolutionary War debts.2 Soon after the states adopted the Constitution, the Supreme Court addressed whether this treaty obligation would prevail over a state statute that allowed Virginians to satisfy debts to British creditors by making payment to a state loan office rather than to the creditors themselves.3 In Ware v. Hylton—the first Supreme Court case to address the legal effect of treaties—the Court struck down the Virginia law on the ground that it conflicted with the Treaty of Peace.4 “A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way[,]” Justice Samuel Chase explained.5

Since Ware, the Supreme Court has held that treaty provisions preempt contrary state or local laws on many occasions.6 But just as only self-executing treaty provisions can prevail over earlier-in-time federal statutes, a treaty provision must be self-executing to preempt inconsistent state law.7 Before the mid-twentieth century, courts routinely held that treaties displaced state or local law without examining closely whether the treaty provision was self-executing.8 But in more recent cases, courts have closely considered whether a treaty provision is self-executing before applying it to preempt state law.9

Footnotes

1

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

2

Treaty of Peace art. 4, Sept. 3, 1783, Gr. Brit.-U.S., 8 Stat. 80.

3

See Act for Sequestering British Property, in 9 The Statutes at Large; Being a Collection of All the Laws of Virginia in the Year 1619, at 379 (William Waller Hening ed., 1821) (passed Oct. 20, 1777).

4

3 U.S. (3 Dall.) 199 (1796).

5

Id. at 236–37 (Chase, J.).

6

See Restatement (Fourth) of Foreign Relations Law § 108 reporters’ n.1 (2018) [hereinafter Fourth Restatement] (collecting Supreme Court cases).

7

See Medellín, 552 U.S. at 513. See also Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (concluding that certain human rights treaties to which the United States is a party did not prevail over an Ohio death penalty statute because, inter alia, the treaties were non-self-executing).

8

See, e.g., Asakura v. City of Seattle, 265 U.S. 332, 341 (1924); Hauenstein v. Lynham, 100 U.S. 483, 490 (1879). See also David Sloss, The Death of Treaty Supremacy 85–95 (2016) (finding no cases between 1800 and 1945 in which state or local law prevailed over an inconsistent treaty because the treaty was deemed non-self-executing); Fourth Restatement, supra note 6, § 308 cmt. b ( “Before the mid-20th century, courts routinely enforced treaty obligations to displace contrary State or local law, often without focusing on the question of self-execution. . . . In more recent cases, once courts have identified a conflict between a treaty and State or local law, they tend to consider whether a treaty provision is self-executing before applying it to preempt State or local law.” ).

9

See supra note 7.