The Treaty Clause

The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .

—Michael D. Ramsey

Introduction

The Treaty Clause has a number of striking features. It gives the President and the Senate a shared role in treaty-making and requires a supermajority (two-thirds) of the Senate for approval of a treaty. However, the clause gives the House of Representatives no formal role in the process. Moreover, unlike Congress’s lawmaking power, the Treaty Clause contains no express limits on its scope. This essay provides a brief history of the clause’s development and considers several key issues relating to the clause including the use of executive agreements as substitutes for treaties, the termination of treaties, and possible limits on the subject matter of treaties.

History Before 1787

In the English system, the monarch had sole power to make treaties, which Blackstone described as an aspect of the “executive part of government.”¹ However, Parliament’s action was required to make treaty provisions part of domestic law. After independence, the Continental Congress assumed the power to make treaties for the new nation, including the crucial 1778 alliance with France. The Articles of Confederation, adopted in 1781, confirmed Congress’s power to make treaties but required the assent of nine of the thirteen states.² That supermajority requirement became critical in the principal treatymaking debate under the Articles.

In the mid-1780s, the Confederation Congress attempted to negotiate a treaty with Spain that would provide trading rights and free access to the Mississippi River through Spanish-controlled New Orleans. Spain offered favorable trade terms, but only if the United States would give up its demands on the Mississippi.³

The Northern states would have benefited most from the trade treaty and cared little about New Orleans; they had a majority—but not a supermajority—of votes in Congress. The Southern states, insisting on protecting access to the Mississippi, were able to block the treaty despite having only a minority of votes. The Southern states, and many people in the North, concluded that the supermajority requirement had prevented an unwise treaty. This experience undoubtedly encouraged the Constitution’s Framers to carry over the supermajority principle from the Articles of Confederation.

The Constitutional Convention

The Virginia Plan proposed to give the national executive “a general authority to execute the National laws” in addition to “the Executive rights vested in Congress by the Confederation.”⁴ John Rutledge of South Carolina and James Wilson of Pennsylvania objected to the latter provision, which they thought would include “powers of war and peace.”⁵ Wilson argued that these powers should belong to the legislature.⁶ James Madison of Virginia proposed that the Convention delete the clause conveying “Executive rights.”⁷ This motion was passed, leaving uncertainty as to whether the treaty-making power belonged to the legislative or executive branch.⁸

The Convention did not materially consider the treaty-making power further until the report of the Committee of Detail in August. A Committee draft in the handwriting of Edmund Randolph of Virginia defined “legislative powers” as including the power “to make treaties of commerce” and “to make treaties of peace or alliance.” A note in parentheses, likely in Rutledge’s handwriting, questioned whether the Senate in particular should have these powers.⁹ A Committee draft in Wilson’s handwriting granted the Senate alone the power to “make Treaties of Peace, of Alliance, and of Commerce” as well as the authority to “send Ambassadors.”¹⁰ Another draft from Wilson simplified the language to give the Senate power to “make treaties, and to appoint Ambassadors.”¹¹ This version was delivered to the Convention on August 6.¹² However, that proposal proved unsatisfactory to the Convention.

On August 23, Madison suggested that, as the Senate represented only the states, the President should “be an agent in Treaties.”¹³ The matter was then referred to the Committee of Eleven, which, apparently adopting Madison’s suggestion, in September proposed essentially the final language: The President would “make treaties” and the Senate would approve treaties with the “Consent of two thirds of the Members present.”¹⁴ The Convention adopted this allocation with little recorded debate.

Wilson attempted to require the House’s approval for treaties as well as the Senate’s.¹⁵ Roger Sherman of Connecticut worried that there is a “necessity of secrecy” for treaties that would prohibit referring them to the “whole Legislature.”¹⁶ He thought the smaller Senate could be “safely trusted.” The small states, wary of being disadvantaged, also presumably preferred to keep the treaty-making power in the Senate where they had proportionally greater power. Wilson’s proposal was rejected by a vote of 10 to 1, supported only by Pennsylvania.¹⁷

Treaty-making thus became a mixture of executive and legislative power. Most delegates likely recognized the actual conduct of diplomacy as an executive function.¹⁸ However, under Article VI, treaties were part of the “supreme Law of the Land.” The choice to involve both the President and the Senate in the process reflected the view that American interests might be undermined by treaties entered into without proper reflection. The Framers believed that treaties should be strictly honored, both as a matter of the law of nations and as a practical matter. The United States could not afford to give the great powers any cause for war, but this meant that the nation should be doubly cautious in accepting treaty obligations.

The Committee of Eleven’s proposal also introduced the supermajority requirement for Senate approval of treaties.¹⁹ Wilson thought the two-thirds requirement would “put[] it in the power of a minority to controul the will of a majority.”²⁰ Elbridge Gerry of Massachusetts moved that a treaty could be made with a “majority of the whole number of the Senate.”²¹ This proposal was defeated by a vote of 6 to 5.

Although the Convention records do not indicate how the supermajority requirement first arose, it presumably derived from the Articles of Confederation’s requirement of nine states to approve a treaty. The wisdom of retaining the Articles’ rule was no doubt highlighted by the defeat of the Spanish treaty under the Articles.²²

The Framers worried that, as with the proposed Spanish treaty, one region or interest constituting a bare majority within the nation would make a treaty that was to its advantage but prejudicial to other parts of the country and to the national interest. The ultimate purpose of the Treaty Clause was therefore to ensure that treaties would not be adopted unless most of the country stood to gain. Treaties would be more difficult to adopt than statutes would be, but the Framers realized that an unwise statute could simply be repealed, while an unwise treaty remained a binding international commitment that would not be so easy to unwind.

The Ratification Debates

During the ratification debates, the Treaty Clause drew attacks on two principal grounds. First, opponents objected to combining the executive and legislative branches in violation of the (supposed) principle of strict separation of powers. Alexander Hamilton addressed this objection in Federalist No. 75. He pointed to the role of treaties as both diplomatic instruments and (as a result of Article VI) part of the supreme law of the land. Hamilton also emphasized the importance of the Senate as a check on presidential treaty-making and defended the omission of the House from the process.

A more practical objection to the clause, especially in Virginia, was that the supermajority requirement was insufficiently demanding. Anti-Federalists, invoking the Spanish treaty episode under the Articles, wanted two-thirds of all Senators (not just those present) or three quarters of Senators present to approve a treaty. Federalists replied that the Constitution’s requirement—two-thirds of Senators present—would be sufficient protection.²³

Presidential Practice

In August 1789, President George Washington visited the Senate to seek “advice and consent” for a treaty. Rather than giving Washington a clear answer, the Senate opted to consider the treaty further and referred it to a committee. Washington became visibly upset “in a violent fret.”²⁴ After some debate, the Senate provided its consent to the treaty. Washington never again visited the Senate to obtain advice and consent. He found personal consultation with the Senate to be so awkward and unproductive that he abandoned it, and subsequent Presidents have followed his example.

The practice became that either the President or the President’s emissaries negotiated and signed treaties independently, and the President then presented the signed treaty to the Senate for its consent. As a practical matter, there often has been consultation between the executive and members of the Senate before treaties are crafted and signed. Generally, the President will make clear to foreign nations that the President’s signature on a treaty is only a preliminary commitment subject to Senate scrutiny. As long as the Senate takes seriously its constitutional role of reviewing treaties rather than merely deferring to the President, the check that the Framers sought to create remains in place.

The Senate at times has refused to consent to treaties. It also has approved treaties with conditions or refused to consent to particular parts of treaties. By going beyond a simple “up-or-down” vote, the Senate retains some of its power of “advice.” The Senate not only disapproves the treaty proposed by the President but also suggests how the President might negotiate a better treaty.

Treaties and Executive Agreements

The Treaty Clause does not say that it is the exclusive method for approving treaties, but its purpose was to avoid bare-majority approval of treaties that disadvantage one part of the nation, and this suggests that no other route was envisioned for approving treaties. Further, the drafting and ratifying debates reflect a broad consensus that the clause was the only constitutional avenue for treaty-making.

However, the Framers also apparently recognized a class of less important international agreements that did not rise to the level of treaties. Article I, Section 10 prohibits states from entering into “Treat[ies]” but allows them to enter into “Agreement[s] or Compact[s]” with the consent of Congress. This text indicates that not all international agreements are treaties and suggests that these other agreements would not need to go through the procedures specified in the Treaty Clause. Instead, the President, exercising the executive power, could make these agreements independently.²⁵ But this procedure would have to be limited to agreements of minor importance; otherwise, there would be too great an avenue for evading the protections the Framers placed in the Treaty Clause.²⁶

Since the early Republic, Presidents have made executive agreements on their own authority without seeking Senate approval. For example, President John Adams made an executive agreement settling claims with the Netherlands in 1799. This practice continued intermittently during the nineteenth century.²⁷ However, during the twentieth century, this minor diplomatic tool increased in frequency of use and in importance. Executive agreements became even more commonplace during the New Deal and after World War II.

In modern practice, many more international agreements are made as executive agreements than as treaties.²⁸ In United States v. Belmont (1937) and United States v. Pink (1942), the U.S. Supreme Court embraced the idea that the President under some circumstances may make executive agreements,²⁹ but the scope of this independent presidential power remains a serious question. Belmont and Pink involved agreements settling claims as part of the recognition of a foreign government. The recognition power is closely tied to the President’s power to receive ambassadors, under Article II, Section 3. Subsequent decisions have continued to accept the President’s power to settle foreign claims by executive agreement, and Dames & Moore v. Regan (1981) emphasized that Congress has acquiesced in the practice.³⁰ It remains unclear what other subjects might be appropriately addressed by executive agreements.

There is another path for the approval of international agreements: The President submits so-called congressional-executive agreements for approval by a majority of both houses of Congress. These agreements, which became more common after World War II, do not require the Senate’s supermajority approval. Congressional-executive agreements have largely replaced treaties in such areas as international trade. Examples include the United States-Mexico-Canada Agreement (USMCA); the agreement establishing the World Trade Organization (WTO); and other bilateral and regional free trade agreements. At least with respect to trade matters these agreements are now well established.³¹ Two cases from the late nineteenth and early twentieth centuries in the trade area might provide support for these agreements.³² The practice now appears so settled that it is unlikely to be overturned or even substantially questioned, but how these agreements can be squared with the Constitution’s original meaning remains a difficult question.³³

Presidents also increasingly claim that Congress has authorized the President to make international agreements in advance, often by general legislation. This approach to international agreement-making seems even more in tension with the Treaty Clause, at least if used for important matters, because Congress does not approve the actual text of the agreement.

Despite the rise of congressional-executive agreements, Article II, Section 2 treaties remain an important part of U.S. international obligations in such areas as arms control, human rights, the environment, tax, and extradition.

Termination of Treaties

The Treaty Clause does not say who has power to terminate treaties, and the Framers do not appear to have discussed the question directly. Termination might be seen as an aspect of the President’s executive powers to conduct foreign affairs and execute the laws.³⁴ The termination question first arose in 1793. President Washington asked his Cabinet whether he should suspend or terminate U.S. treaties with France to maintain U.S. neutrality. Secretary of the Treasury Alexander Hamilton argued that Washington should terminate the treaties. Secretary of State Thomas Jefferson opposed termination on policy grounds but did not say that the President lacked authority to do so.³⁵

Treaty termination might also have been understood as a legislative power. In 1798, the first actual U.S. termination of a treaty was done by Congress at the request of President John Adams.³⁶ Congress presumably has authority to terminate treaties that are related to its enumerated powers. Congress might also have a general termination power based on its authority to enact laws that are “necessary and proper” to carry into effect the President’s treaty power. Moreover, if a statute and a treaty conflict, for purposes of U.S. law the last expression of the sovereign controls. Thus, a statute enacted later overrides a treaty adopted earlier (and vice versa).³⁷ This “last-in-time” rule appears to be consistent with the Constitution’s text and has at least some support in Founding-era materials.³⁸

Modern Presidents have claimed an independent treaty termination power, at least when termination is permitted by a treaty’s terms or by international law.³⁹ For example, in 1978, President Jimmy Carter terminated the Mutual Defense Treaty with Taiwan in accordance with its notice procedures. Some Senators objected to Carter’s termination of this treaty, but Goldwater v. Carter (1979) found that challenge to be a “political question” that the judiciary could not review.⁴⁰

Many scholars agree that this type of presidential treaty termination power is now well established, and it does not obviously depart from the original understanding as reflected in the consensus from the Washington Administration. There is much more debate about whether the President has the constitutional authority to terminate or suspend a treaty where the terms of the treaty restrict termination or suspension. The President’s textual obligation to take care that the laws are faithfully executed would seem to include the obligation to follow any termination or suspension clauses.⁴¹

Constitutional Limits on Treaties

A treaty cannot alter the constitutional structure of government or violate individual rights protected by the Constitution.⁴² Other subject-matter limits on treaties have been debated since shortly after ratification. The 1794 Jay Treaty with Britain addressed, among other matters, property ownership, which was usually a matter of state law. Republican opponents of the Jay Treaty argued that treaties could address only subjects that were part of Congress’s powers under the Constitution; otherwise, the federal government’s power was not limited, as it could be indefinitely expanded through the treaty power. Hamilton replied that the treaty power was not so limited. Ultimately the Senate gave its consent to the Jay Treaty, and the House provided necessary funding to implement it.⁴³ Missouri v. Holland (1920) adopted Hamilton’s view, upholding a treaty that was arguably beyond the enumerated powers of Congress.44 Scholars disagree as to whether its conclusion on this point is consistent with the Constitution’s original meaning.⁴⁴

Open Questions

• In Bond v. United States (2014), Justice Clarence Thomas, joined by Justices Antonin Scalia and Samuel Alito, suggested that the original meaning of “treaty” extends only to agreements that “in their nature relate to intercourse with other nations . . . rather than to purely domestic affairs.”⁴⁵ It is not clear how much this position would limit the treaty power or what the distinction would be between matters that relate to foreign nations and matters that do not.
• Can Congress pass legislation implementing treaties in areas not otherwise within its enumerated powers? In Bond, Justice Scalia, joined by Justices Thomas and Alito, argued on originalist grounds that Congress could not do so.⁴⁶ However, Missouri v. Holland indicates otherwise, and modern practice embraces the broader view of Congress’s power.⁴⁷ A lower court, for example, found that Congress could implement a treaty to criminalize overseas conduct in an area beyond Congress’s power over foreign commerce.⁴⁸ Scholars have disagreed as to the Constitution’s original meaning on this issue.⁴⁹ Some contend that Congress has independent treaty-implementation power while favoring limits to prevent abuse.⁵⁰

1. 1 Blackstone 250. ↩︎
2. Articles of Confederation, art. IX, §§ 1, 6. ↩︎
3. Frederick W. Marks, Independence on Trial: Foreign Affairs and the Making of the Constitution 24–34 (1986). ↩︎
4. 1 Farrand’s 21. ↩︎
5. Id. at 65–66. ↩︎
6. Id. ↩︎
7. Id. at 66–67. ↩︎
8. Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 145–51 (2007); Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 Persp. Am. Hist. New Series 233–81 (1984). ↩︎
9. 2 Farrand’s 137, 143, 145. ↩︎
10. Id. at 155, 169. ↩︎
11. Id. at 169. ↩︎
12. Id. at 183. ↩︎
13. Id. at 392. ↩︎
14. Id. at 495. ↩︎
15. Id. at 538. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 282 (2001). ↩︎
19. 2 Farrand’s 495. ↩︎
20. Id. at 540. ↩︎
21. Id. at 549. ↩︎
22. Ramsey, The Constitution’s Text, supra at 148; Charles Warren, The Mississippi River and the Treaty Clause of the Constitution, 2 Geo. Wash. L. Rev. 271, 285–90 (1934). ↩︎
23. Warren, supra at 287–99; Lance Banning, Virginia: Sectionalism and the General Good, in Ratifying the Constitution 261 (Michael Allen Gillespie & Michael Lienesch eds., 1989); Federalist No. 75. ↩︎
24. William Maclay, The Journal of William Maclay 127–31 (Edgar S. Maclay ed., 1890). ↩︎
25. Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133, 162–71 (1999); Ramsey, The Constitution’s Text, supra at 179–93. ↩︎
26. Michael D. Ramsey, Evading the Treaty Power? The Constitutionality of Non-Binding Agreements, 11 FIU L. Rev. 371 (2016). ↩︎
27. Ramsey, Executive Agreements, supra at 171–83. ↩︎
28. Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236 (2008). ↩︎
29. 301 U.S. 324 (1937); 315 U.S. 203 (1942). ↩︎
30. 453 U.S. 654, 680–81 (1981). ↩︎
31. Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice 72–98 (2024). ↩︎
32. Field v. Clark, 143 U.S. 649 (1892); B. Altman & Co. v. United States, 224 U.S. 583 (1912). ↩︎
33. Ramsey, The Constitution’s Text, supra at 197–217. ↩︎
34. Prakash & Ramsey, supra at 324–27. ↩︎
35. Id. ↩︎
36. David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801, at 244 (1997). ↩︎
37. The Cherokee Tobacco, 78 U.S. 616, 620–21 (1870). ↩︎
38. Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes, 80 Ind. L.J. 319 (2005). ↩︎
39. Bradley, supra at 99–118. ↩︎
40. 444 U.S. 996 (1979). ↩︎
41. Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 Cornell L. Rev. 97 (2004). ↩︎
42. Geofroy v. Riggs, 133 U.S. 258, 267 (1890); Reid v. Covert, 354 U.S. 1, 15–19 (1957). ↩︎
43. David Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000). ↩︎
44. Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L. Rev. 1 (2006); Michael D. Ramsey, Missouri v. Holland and Historical Textualism, 73 Mo. L. Rev. 969 (2008). ↩︎
45. 572 U.S. 844, 884–93 (2014) (Thomas, J., concurring). ↩︎
46. Id. at 873–81 (Scalia, J., concurring). ↩︎
47. 252 U.S. at 434–35. ↩︎
48. United States v. Rife, 33 F.4th 838 (6th Cir. 2022). ↩︎
49. Michael D. Ramsey, Congress’s Limited Power to Enforce Treaties, 90 Notre Dame L. Rev. 1539 (2015); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005). ↩︎
50. Ramsey, Congress’s Limited Power, supra at 1551–60. ↩︎