Constitutional Law I Unit 13 ReviewThe Treaty Power and Foreign Affairs

Key Constitutional Provisions

• Article II, Section 2, Clause 2 grants the President the power to make treaties with the advice and consent of the Senate
  • Requires a two-thirds majority vote in the Senate for ratification
• Article VI, Clause 2, known as the Supremacy Clause, establishes that treaties, along with the Constitution and federal laws, are the supreme law of the land
  • State laws and constitutions are subordinate to treaties
• Tenth Amendment reserves powers not delegated to the federal government to the states or the people
  • Raises questions about the extent of federal power in foreign affairs
• Article I, Section 8 enumerates specific powers granted to Congress, including the power to regulate commerce with foreign nations and declare war
  • Delineates some areas of foreign affairs under congressional authority

Historical Context

• The Founding Fathers recognized the importance of the federal government's role in conducting foreign affairs
  • Aimed to address weaknesses of the Articles of Confederation in this area
• Debates during the Constitutional Convention focused on the division of treaty-making power between the executive and legislative branches
  • Compromise reached with the President negotiating treaties and the Senate providing advice and consent
• Early treaties, such as the Jay Treaty (1795) and the Louisiana Purchase (1803), demonstrated the scope and importance of the treaty power
  • Established precedents for the use of treaties in foreign policy
• Supreme Court cases, such as Ware v. Hylton (1796) and Missouri v. Holland (1920), have shaped the understanding of the treaty power over time
  • Addressed issues such as the supremacy of treaties and the relationship between treaties and state laws

Treaty-Making Process

• The President initiates and negotiates treaties with foreign nations
  • Often through the State Department and diplomatic channels
• After negotiation, the President submits the treaty to the Senate for its advice and consent
  • Senate Foreign Relations Committee typically holds hearings and debates the treaty
• The Senate may approve, reject, or propose amendments to the treaty
  • Amendments require renegotiation with the foreign nation
• If the Senate provides its advice and consent by a two-thirds majority vote, the President may ratify the treaty
  • Ratification is the formal act of giving assent to the treaty
• Upon ratification, the treaty becomes binding on the United States under international law
  • Domestically, the treaty becomes part of the supreme law of the land under the Supremacy Clause

Scope of the Treaty Power

• The treaty power is broad and extends to various subject matters, including trade, defense, human rights, and environmental protection
  • Enables the federal government to address issues of international concern
• Treaties can supersede prior federal laws and state laws under the Supremacy Clause
  • Demonstrates the significant authority of the federal government in foreign affairs
• The Supreme Court has interpreted the treaty power expansively, as seen in cases like Missouri v. Holland (1920)
  • Upheld a treaty protecting migratory birds, even though Congress might lack the power to regulate the matter directly
• The treaty power may allow the federal government to legislate on matters traditionally reserved to the states
  • Raises federalism concerns and questions about the balance of power between the federal and state governments

Limits on Treaty Power

• Treaties must be consistent with the Constitution and cannot infringe upon individual rights
  • Reid v. Covert (1957) held that treaties cannot override constitutional protections
• The Senate's advice and consent role serves as a check on the President's treaty-making authority
  • Prevents the President from unilaterally entering into treaties without legislative input
• Treaties cannot cede core sovereign powers or permanently alter the structure of government
  • For example, a treaty cannot abolish the Senate or grant the President legislative authority
• The Tenth Amendment and the principle of federalism may limit the scope of the treaty power
  • Treaties should not encroach upon powers reserved to the states without a clear international purpose
• Political and practical considerations, such as public opinion and international relations, can constrain the use of the treaty power
  • Presidents may be reluctant to pursue controversial treaties that lack broad support

Executive Agreements

• Executive agreements are international agreements made by the President without the advice and consent of the Senate
  • Can be sole executive agreements (based on the President's constitutional authority) or congressional-executive agreements (authorized by legislation)
• Executive agreements have become increasingly common in foreign affairs
  • Used for a wide range of purposes, including trade, defense cooperation, and environmental protection
• The Supreme Court has recognized the validity of executive agreements, as in United States v. Belmont (1937) and United States v. Pink (1942)
  • Upheld the President's authority to settle claims with the Soviet Union through executive agreements
• Executive agreements are not subject to the same level of congressional oversight as treaties
  • Raises concerns about the balance of power between the executive and legislative branches
• The line between treaties and executive agreements is not always clear, and the choice between them can be controversial
  • Some argue that significant international agreements should be concluded as treaties to ensure greater democratic accountability

Foreign Affairs and Federalism

• The Constitution grants the federal government broad authority over foreign affairs
  • Includes the treaty power, the power to declare war, and the power to regulate foreign commerce
• The Supreme Court has recognized the federal government's preeminent role in foreign affairs, as in United States v. Curtiss-Wright Export Corp. (1936)
  • Described the President as the "sole organ" of the nation in external relations
• State laws that conflict with federal foreign policy or international agreements may be preempted
  • Zschernig v. Miller (1968) struck down an Oregon inheritance law that interfered with foreign relations
• However, the precise boundaries between federal and state authority in foreign affairs remain contested
  • Some argue for a greater role for states in areas like trade promotion and cultural exchanges
• The Tenth Amendment and the principle of federalism suggest that there may be limits on the federal government's power to override state laws in foreign affairs
  • Requires a careful balancing of national and local interests

Notable Cases and Precedents

• Ware v. Hylton (1796): Established the supremacy of treaties over state laws
  • A treaty with Great Britain preempted a Virginia law confiscating debts owed to British creditors
• Missouri v. Holland (1920): Upheld a treaty protecting migratory birds, even though Congress might lack the power to regulate the matter directly
  • Demonstrated the broad scope of the treaty power
• United States v. Belmont (1937) and United States v. Pink (1942): Recognized the validity of executive agreements in settling claims with the Soviet Union
  • Affirmed the President's authority to conduct foreign affairs through executive agreements
• Reid v. Covert (1957): Held that treaties cannot override individual rights guaranteed by the Constitution
  • Established limits on the treaty power based on constitutional principles
• Zschernig v. Miller (1968): Struck down an Oregon inheritance law that interfered with foreign relations
  • Demonstrated the preemptive effect of federal foreign policy on conflicting state laws
• Medellin v. Texas (2008): Held that a treaty is not automatically enforceable in domestic courts unless it is self-executing or implemented by legislation
  • Highlighted the distinction between international obligations and domestic implementation of treaties