13.1 Treaty-Making Process and Senate Ratification
6 min read•july 30, 2024
The treaty-making process involves a delicate balance between presidential power and oversight. The Constitution grants the authority to negotiate treaties, but requires Senate by a two-thirds majority. This system of checks and balances aims to ensure treaties reflect national interests while preventing unilateral executive action.
The scope of the treaty power is broad but not unlimited. Treaties become part of the "supreme law of the land" under the , but must comply with constitutional limitations. Debates continue over the Senate's use of reservations and the rise of executive agreements as alternatives to formal treaties.
Treaty-Making Power: Constitution & Process
Constitutional Basis for Treaty-Making Power
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- , Clause 2 of the U.S. Constitution grants the President the power to make treaties, with the advice and consent of the Senate, provided two-thirds of the Senators present concur
- This provision establishes the fundamental constitutional framework for the treaty-making process, dividing responsibilities between the executive and legislative branches
- The Constitution's allocation of treaty-making authority reflects the Framers' intent to create a system of checks and balances in foreign affairs
- The high two-thirds majority requirement in the Senate underscores the significance of treaties as binding international commitments
Roles of the President and Senate
- The President, as the chief executive and head of state, is responsible for negotiating and signing treaties on behalf of the United States
- The President's role involves initiating treaty negotiations, appointing diplomats, and providing general foreign policy guidance
- Once a treaty is signed, the President submits it to the Senate for its advice and consent
- The Senate's role in the treaty-making process is to provide "advice and consent," which involves reviewing, debating, and ultimately voting on whether to ratify the treaty
- The Senate Foreign Relations Committee typically holds hearings on the treaty and may propose amendments or reservations
- The full Senate then debates and votes on the treaty, with a two-thirds majority required for ratification
- The Senate may also propose amendments or reservations to a treaty before granting its consent to ratification
- Amendments alter the text of the treaty itself, while reservations limit or clarify the U.S.'s obligations without changing the treaty's language
- If the Senate approves amendments, the treaty must be renegotiated with the other parties to the agreement
Treaty Power: Scope & Limitations
Supremacy Clause and Domestic Legal Effect
- The Supremacy Clause (Article VI, Clause 2) establishes that treaties, along with the Constitution and federal laws, are the "supreme Law of the Land," binding on all states and superseding conflicting state laws
- This provision ensures that treaties have the same legal status as federal statutes and are enforceable in U.S. courts
- State laws or policies that conflict with treaty obligations may be preempted or invalidated under the Supremacy Clause
- The Supreme Court has recognized the concept of "self-executing" treaties, which become domestically enforceable as federal law upon ratification without the need for implementing legislation by Congress
- Self-executing treaties have direct legal effect and can be invoked by individuals in U.S. courts (Asakura v. City of Seattle)
- In contrast, "non-self-executing" treaties require implementing legislation to become effective in , even if they are binding on the U.S. internationally
- Non-self-executing treaties do not create individually enforceable rights without further congressional action (Medellín v. Texas)
Constitutional Limitations on the Treaty Power
- Despite the broad scope of the treaty power, it is not unlimited. Treaties must be consistent with the Constitution and cannot infringe upon fundamental constitutional rights or allocate powers contrary to the Constitution's structure
- For example, a treaty cannot grant the federal government powers not enumerated in the Constitution or deny individuals due process rights
- The Supreme Court has suggested that the treaty power is limited by the Tenth Amendment and cannot be used to regulate matters reserved to the states (Missouri v. Holland)
- The Supreme Court has also held that a later-in-time federal statute can supersede a conflicting treaty provision for domestic law purposes, although this does not affect the U.S.'s international obligations under the treaty
- This "last-in-time" rule means that Congress can effectively override a treaty through subsequent legislation (Whitney v. Robertson)
- However, the U.S. would still be responsible for any breach of its international obligations resulting from such conflicts
Senate's Role in Treaty Ratification
Historical Development
- The Framers of the Constitution included the Senate in the treaty-making process as a check on the President's power and to ensure that treaties reflect a broad national consensus
- The Framers believed that the Senate, with its longer terms and equal representation of states, would provide a more stable and deliberative influence on foreign policy
- Throughout U.S. history, the Senate has played an active role in the treaty process, sometimes rejecting or significantly modifying treaties before granting its consent to ratification
- For example, the Senate famously rejected the after World War I, despite President Wilson's strong support for the treaty
- The Senate has also used its "advice and consent" power to shape the content of treaties through amendments and reservations (e.g., the Bricker Amendment debates of the 1950s)
Contemporary Debates and Controversies
- In recent decades, the Senate has increasingly used "reservations," "understandings," and "declarations" (RUDs) to clarify or limit the U.S.'s obligations when ratifying treaties, sparking debate about the appropriate scope of the Senate's role
- RUDs can be used to interpret ambiguous treaty language, declare a treaty non-self-executing, or limit the U.S.'s compliance with certain provisions
- Some argue that the Senate's use of RUDs undermines the integrity of the treaty-making process and the U.S.'s international commitments, while others defend it as a legitimate exercise of the Senate's constitutional role
- Contemporary debates also focus on the political dynamics of treaty ratification, including the impact of partisan polarization and the influence of interest groups on the Senate's deliberations
- The high two-thirds majority requirement for treaty ratification can make it difficult to secure approval for controversial agreements, especially in a polarized political climate
- The Senate's failure to ratify certain high-profile treaties, such as the United Nations Convention on the Law of the Sea, has raised questions about the effectiveness of the treaty-making process in an era of global interdependence
- Some argue that the Senate's reluctance to approve multilateral treaties undermines U.S. leadership and credibility on the world stage
- Others contend that the Senate's role ensures that treaties receive thorough scrutiny and reflect the will of the American people
Treaties vs Other Agreements
Executive Agreements
- In addition to treaties, the U.S. enters into other types of international agreements, such as executive agreements and congressional-executive agreements, which are not subject to the Senate ratification process outlined in the Constitution
- Executive agreements are international agreements concluded by the President based on his independent constitutional authority or preexisting statutory authorization, without the need for Senate approval
- Examples include agreements related to the President's power to receive ambassadors or to act as Commander-in-Chief
- The President may also conclude executive agreements pursuant to existing treaties or congressional delegations of authority
- While treaties and congressional-executive agreements are both considered "supreme Law of the Land" under the Supremacy Clause, the domestic legal status of executive agreements is more complex and depends on the source of the President's authority
- Sole executive agreements, based on the President's independent constitutional powers, may have limited domestic legal effect compared to treaties or congressional-executive agreements
- Executive agreements pursuant to treaties or congressional authorization may be more likely to preempt conflicting state laws
Congressional-Executive Agreements
- Congressional-executive agreements are international agreements approved by a simple majority in both houses of Congress, often through legislation that authorizes or approves the agreement
- These agreements are used for a wide range of subjects, such as trade (), foreign assistance, and defense cooperation
- Congressional-executive agreements have become increasingly common in recent decades, sometimes as an alternative to the more cumbersome treaty ratification process
- Like treaties, congressional-executive agreements are considered part of the "supreme Law of the Land" and can supersede conflicting state laws
- The Supreme Court has generally treated congressional-executive agreements as equivalent to treaties for domestic legal purposes ()
- The choice between pursuing an international agreement as a treaty, , or congressional-executive agreement has significant implications for the balance of power between the President and Congress in foreign affairs
- Some argue that the extensive use of congressional-executive agreements has undermined the Senate's constitutional role in the treaty-making process
- Others contend that congressional-executive agreements provide a more efficient and democratically accountable means of conducting foreign policy
Key Terms to Review (18)
Article II, Section 2: Article II, Section 2 of the United States Constitution outlines the powers and responsibilities of the President regarding military authority, appointments, and treaties. It establishes the President as the Commander in Chief of the armed forces, grants the power to appoint federal officers and judges, and defines the treaty-making process with the advice and consent of the Senate, serving as a cornerstone of executive power.
Bilateral treaty: A bilateral treaty is a formal agreement between two sovereign states that outlines specific obligations, rights, and duties of the parties involved. These treaties can cover a wide range of issues, including trade, defense, and diplomatic relations, and require negotiation and mutual consent before becoming legally binding. The process involves crafting the treaty text, followed by ratification, which typically requires approval from the governing bodies of both nations, often necessitating a legislative or parliamentary vote.
Bond v. United States: Bond v. United States is a significant Supreme Court case from 2014 that examined the limits of federal power under the Chemical Weapons Convention Implementation Act. The case arose when Carol Anne Bond was charged with violating this act after using toxic chemicals against a former friend. This case highlighted the balance between federal authority and state jurisdiction, especially in terms of how international treaties influence domestic law.
Domestic law: Domestic law refers to the legal framework and regulations that are enacted and enforced within a specific country. It governs the conduct of individuals, organizations, and government entities in their interactions with each other. Understanding domestic law is crucial in the context of how international agreements, like treaties, are integrated into a nation's legal system, especially regarding the treaty-making process and the role of Senate ratification.
Executive agreement: An executive agreement is an international agreement made by the president of the United States without the need for Senate approval, which is typically required for treaties. These agreements allow the president to conduct foreign affairs and manage international relations efficiently, bypassing the often lengthy treaty-making process. While executive agreements can be binding and carry the weight of law, they are usually less formal than treaties and can be more easily reversed by subsequent administrations.
Federalism: Federalism is a system of government in which power is divided between a central authority and constituent political units, such as states. This division of powers allows for a balance between national interests and local governance, creating a complex relationship that influences the regulation of activities, legal interpretations, and the interaction between different levels of government.
Multilateral treaty: A multilateral treaty is a formal agreement between three or more sovereign states that is intended to govern their mutual relations and responsibilities on a specific issue. These treaties play a critical role in international law and diplomacy, often addressing global challenges like trade, security, and environmental protection. The process of creating and ratifying such treaties typically involves negotiations among the participating nations, followed by a structured treaty-making process that requires approval from the legislative bodies of the signatory countries, such as the Senate in the United States.
NAFTA: NAFTA, or the North American Free Trade Agreement, is a trade agreement implemented in 1994 between the United States, Canada, and Mexico aimed at eliminating trade barriers and promoting economic cooperation among the three countries. By reducing tariffs and increasing trade volume, NAFTA sought to boost economic growth and create jobs while facilitating cross-border investment and trade relations.
Negotiation: Negotiation is the process through which parties come together to discuss and reach agreements on mutual interests, often involving compromise and collaboration. In the context of governmental operations, negotiation plays a critical role in resolving inter-branch conflicts, where different branches of government may have competing interests or powers. Additionally, negotiation is central to the treaty-making process, as it facilitates discussions between nations to establish agreements that require subsequent ratification.
Non-self-executing treaty: A non-self-executing treaty is an international agreement that requires additional legislation or action by a government to be enforced domestically. This means that the treaty does not automatically create enforceable rights or obligations within the country without further implementation by the legislative branch, such as Congress in the United States. Understanding this concept is crucial for grasping how treaties interact with domestic law and the process required for their effectivity.
Preemption: Preemption is a legal doctrine that allows higher levels of government to override or invalidate conflicting laws made by lower levels of government. This principle is essential in determining the balance of power between federal and state laws, and it plays a crucial role in various contexts such as legislative processes, commerce regulation, and foreign affairs.
President: The president is the elected head of state and government in the United States, responsible for enforcing federal laws, conducting foreign policy, and serving as the commander-in-chief of the armed forces. This role is crucial in the treaty-making process, as the president has the authority to negotiate and sign treaties with foreign nations, which must then be ratified by the Senate.
Ratification: Ratification is the formal approval or confirmation of a proposed law, treaty, or constitutional amendment by the appropriate authority, typically a legislative body. This process is crucial in ensuring that any changes to governance or international agreements reflect the will of the people or their representatives.
Self-executing treaty: A self-executing treaty is an international agreement that automatically becomes part of domestic law upon ratification without the need for additional legislation. This means that once such a treaty is ratified by the Senate, it can be enforced directly in U.S. courts and does not require further legislative action to be implemented.
Senate: The Senate is one of the two chambers of the United States Congress, responsible for creating laws and representing states at the federal level. It plays a crucial role in the legislative process, overseeing significant governmental functions such as treaty ratification and impeachment proceedings. Each state is represented by two senators, ensuring equal representation regardless of population size, which contributes to the Senate's unique position in the balance of power within the federal government.
Supremacy Clause: The Supremacy Clause is a provision in Article VI of the U.S. Constitution stating that federal law takes precedence over state laws when there is a conflict. This principle ensures that federal laws and treaties are the ultimate authority, establishing a hierarchy of laws that protects the consistency and uniformity of the legal system across the country.
Treaty of Versailles: The Treaty of Versailles was a peace treaty that brought World War I to an end, signed on June 28, 1919. It primarily aimed to hold Germany responsible for the war and imposed heavy reparations and territorial losses on the country. This treaty is significant in the treaty-making process as it illustrates the complexities of international negotiations and the subsequent Senate ratification needed for the United States to officially adopt its terms.
United States v. Belmont: United States v. Belmont is a significant Supreme Court case from 1937 that affirmed the president's authority to enter into executive agreements without needing Senate approval, establishing the precedence of executive agreements over treaties in certain contexts. This case connects to the broader discussions of the treaty-making process and the role of the Senate, highlighting the balance of power between branches of government in foreign affairs.