Scope of 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.

The Articles of Confederation limited the scope of the treaty power by carving out two acts that the United States could not take in a treaty: limiting the states’ power to impose “imposts on duties on foreigners” and “prohibiting the exportation or importation of any species of goods or commodities whatsoever[.]” 1 The Constitution’s Treaty Clause, by contrast, contains no such restrictions.2 During the Constitutional Convention and the ratification debates, some delegates expressed concern that the treaty power was too broad and subject to abuse.3 But James Madison and others defended the structure of the treaty power, arguing that it was not possible to enumerate all circumstances in which the government could misuse the treaty power,4 and that other checks and balances would provide appropriate limitations.5 In the end, the Framers did not include express limitations in the Treaty Clause on the types of subjects that may be addressed in a treaty.6

Despite the absence of subject matter limitations in the Treaty Clause’s text, there have been suggestions since the founding era that the treaty-making power is implicitly limited to matters that traditionally have been the subject of intercourse between sovereign nations.7 The status and scope of such a limitation, however, remains unclear. In several cases from the turn of the nineteenth century, the Supreme Court stated that the treaty power is not limited to a set of enumerated subjects in the way that Congress’s legislative powers are so constrained.8 Yet, in those same cases, the Court suggested that the treaty power might only extend to topics that “properly pertain” to foreign relations9 or are the “proper subjects” 10 of negotiations between the United States and foreign nations.

Some jurists and commentators assert that the only proper subjects for treaties under the Constitution are “matters of international concern.” 11 Under this view, treaties must relate to “external concerns,” as distinguished from “purely internal” subjects.12 In 2014, three Supreme Court Justices joined a concurring opinion arguing that the treaty power “can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs.” 13 But the Court has not ruled on the issue, and there is no consensus on whether the Constitution contains such a limitation.14 Nor has the Supreme Court defined what, if any, matters are insufficiently international in nature to be an improper subject for a treaty.

To the extent there once was a common understanding of the line between internal and external matters, changes in international treaty practice have complicated this distinction.15 Early U.S. treaties often were bilateral and addressed matters such as relations with Indian tribes,16 military alliances, international trade, and military neutrality.17 But treaties have expanded greatly in number and in the scope of their subject matter since World War II.18 Treaties often now take the form of multilateral instruments that address matters that were not common subjects of international intercourse during the founding era, such as environmental protection and human rights.19 Scholars actively debate whether the Constitution limits the scope of modern treaties and multilateral instruments to “international” matters.20

1: Articles of Confederation of 1781, art. IX, para. 1.
2: See U.S. Const. art II, § 2, cl. 2.
3: See, e.g., 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 509 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (George Mason arguing for more stringent limits on the treaty power, stating “[t]he President and Senate can make any treaty whatsoever. We wish . . . to guard, this power[.]” ); id. at 504 (Patrick Henry calling the treaty power so broad as to be “dangerous and destructive.” ); 2 The Records of the Federal Convention of 1787, at 393 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (statement of James Wilson) ( “Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.” ).
4: See, e.g., 3 Debates in the Several State Conventions, supra note 3, at 514–15 (James Madison arguing that an attempt to “enumerate all the cases” in which treaty power should be restrained “might, and probably would be defective” ); id. at 504 (statement of Edmund Randolph: “It is said there is no limitation of treaties. I defy the wisdom . . . to show how they ought to be limited.” ).
5: See, e.g., id. at 516 (James Madison arguing that impeachment, criminal convictions, and regular elections in the Senate were checks on abuse of the treaty power.).
6: See U.S. Const. art. II, § 2, cl. 2. See also Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), reprinted in 20 Papers of Alexander Hamilton 6 (Harold C. Syrett ed., 1974) ( “A power ‘to make treaties,’ granted in these indefinite terms, extends to all kinds of treaties and with all the latitude which such a power under any form of Government can possess.” ).
7: See, e.g., 2 Debates in the Several State Conventions, supra note 3, at 378 (statement of James Madison: “The object of treaties is the regulation of intercourse with foreign nations, and is external.” ); Thomas Jefferson, A Manual of Parliamentary Practice 310 (Samuel Harrison Smith ed., 1801) ( “[T]he Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot otherwise be regulated.” ).
8: See infra note 10.
9: See Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) ( “There can be no question as to the power of the government of the United States to make the treaty with Persia or the Consular Convention with Italy. The treatymaking power is broad enough to cover all subjects that properly pertain to our foreign relations[.]” ).
10: See Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) ( “The treaty-making power of the United States is not limited by any express provision of the Constitution, and, . . . it does extend to all proper subjects of negotiation between our government and other nations.” ); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872) ( “[T]he [treaty] power is given, in general terms, without any description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty.” ). See also De Geofroy v. Riggs, 133 U.S. 258, 267 (1890) ( “[I]t is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.” ); Ross v. McIntyre, 140 U.S. 453, 463 (1891) ( “The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments.” ); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840) (Taney, C.J.) ( “The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty.” ) (affirmed by equally divided court).
11: The “international concern” requirement is most often associated with remarks by Charles Evans Hughes shortly before Hughes became Chief Justice of the Supreme Court, and after he served as an Associate Justice and as Secretary of State. See Statement of Charles Evans Hughes, 1929 Am. Soc. Int’l. L. Proc. 194, 194–96 (1929). See also infra notes 12–14, 20.
12: See, e.g., Power Auth. of N.Y. v. Fed. Power Comm’n, 247 F.2d 538, 542–43 (D.C. Cir.1957) ( “No court has ever said . . . that the treaty power can be exercised without limit to affect matters which are of purely domestic concern and do not pertain to our relations with other nations.” ), vacated as moot, 355 U.S. 64, 78 (1957) (per curiam); Hughes, supra note 11, at 194 ( “[The treaty power] is not a power intended to be exercised . . . with respect to matters that have no relation to international concerns.” ); Treaties and Executive Agreements: Hearing on S.J. Res. 1 Before the Subcomm. of the S. Comm. on the Judiciary, 84th Cong. 183 (1955) (statement of John Foster Dulles, Sec’y of State) (stating that a treaty cannot regulate issues that “do not essentially affect the actions of nations in relation to international affairs, but are purely internal” ).
13: See Bond v. United States, 572 U.S. 844, 884 (2014) (Thomas, J., concurring in the judgment joined by Scalia & Alito, JJ.).
14: For example, the authors of the Restatement of Foreign Relations Law changed their view of the “international concern” requirement in each iteration of the Restatement. See Restatement (Second) of Foreign Relations Law § 117(1) (1965) ( “The United States has the power under the Constitution to make an international agreement if . . . the matter is of international concern[.]” ); Restatement (Third) of Foreign Relations § 302 cmt. c (1987) ( “Contrary to what was once suggested, the Constitution does not require that an international agreement deal only with ‘matters of international concern.’” ); Restatement (Fourth) of Foreign Relations Law § 312 reporters’ n.8 (2018) [hereinafter Fourth Restatement] ( “Unlike in the prior two Restatements, this Section does not take a position on whether there is some sort of subject-matter limitation on the treaty power. . . . The Reporters for the present Restatement concluded that the issue had not been sufficiently addressed in judicial decisions and other relevant legal materials to warrant taking a definitive position.” ).
15: Some scholars have argued that the divide between internal and external affairs was not well-defined even in the Founding era. See, e.g., David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 954, 989 (2010). Others contend the Framers had a clearer conception of the distinction. See, e.g., Duncan B. Hollis, An Intersubjective Treaty Power, 90 Notre Dame L. Rev. 1415, 1420–25 (2015); Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 411–17 (1998) [hereinafter Bradley, American Federalism Part I].
16: For the first eighty years after the adoption of the Constitution, it was the United States’ practice to negotiate and conclude treaties with Indian tribes through the process outlined in the Treaty Clause. See 2 C. Butler, The Treaty Making Power of the United States § 404, at 198–99 (1902). That practice ended when Congress passed the Indian Appropriations Act of March 3, 1871, which affirmed the continued validity of prior Indian treaties, but also declared that hereafter “[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.” Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 566, codified at 25 U.S.C. § 71. See also ArtI.S8.C3.9.1 Scope of Commerce Clause Authority and Indian Tribes (analyzing Congress’s power to regulate commerce with Indian tribes).
17: See, e.g., Ralston Hayden, The Senate and Treaties, 1789–1817, at 1–168 (1920) (analyzing the development of the treaty-making power in the Washington, Adams, and Jefferson Administrations); William Rawle, A View of the Constitution of the United States 578–88 (1825) (stating that the treaty power was appropriate for those subjects “which properly arise from intercourse with foreign nations” and listing as subjects “peace, alliance, commerce, neutrality, and others of a similar nature” ). See also The Federalist No. 64 (John Jay) ( “The power of making treaties is an important one, especially as it relates to war, peace, and commerce[.]” ).
18: See, e.g., David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1304 (2000) ( “[I]nternational treaty practice has greatly expanded in the past half century and promises to expand further in the decades ahead as globalization proceeds.” ); Bradley, American Federalism Part I, supra note 15, at 396 ( “[A]t one time in American history . . . treaties were generally bilateral and regulated matters such as diplomatic immunity, military neutrality, and removal of trade barriers. The nature of treaty-making, however, has undergone a radical transformation, especially in the years since World War II.” ).
19: See, e.g., United Nations Framework Convention on Climate Change art. 25, May 9, 1992, 1771 U.N.T.S. 107; United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85. Scholars debate the extent to which modern treaties are more likely to address matters that historically were regulated by domestic governments. Compare, e.g., Bradley, American Federalism Part I, supra note 15, at 396–97 ( “While many treaties continue to concern matters traditionally viewed as inter-national in nature, numerous others concern matters that in the past countries would have addressed wholly domestically.” ), with Golove, supra note 18, at 1101 ( “[F]rom the beginning, treaties have invaded the most sensitive spheres of state autonomy[.]” ).
20: See, e.g., Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1876 (2005) (describing the issue of whether the Constitution limits the subject matter of treaties as one of the “great academic debates about the treaty power” ); Hollis, supra note 15, at 1415–34 (contending that the Constitution requires modern treaties to address matters of international concern, but suggesting a revision of the traditional understanding of the international concern requirement); Louis Henkin, “International Concern” and the Treaty Power of the United States, 63 Am. J. Int’l L. 272, 273 (1969) ( “[T]he ‘international concern’ limitation may not in fact exist; . . . if there is some such limitation, it has been unduly and needlessly elevated to independent doctrine and its scope exaggerated[.]” ). Much of the recent debate over the scope of the treaty power concerns whether the Constitution’s federalism limitations apply to treaty-making, which is discussed ArtII.S2.C2.1.5 Congressional Implementation of Treaties.