Treaty Clause

Based on Wikipedia: Treaty Clause

The Two-Thirds Problem

Here's a puzzle that has shaped American foreign policy for over two centuries: How do you make binding promises to other countries when your own government is designed to make binding promises extraordinarily difficult?

The answer lies in one of the Constitution's most consequential provisions—a single sentence that has enabled landmark alliances and torpedoed major agreements, that gives the President enormous power while simultaneously constraining it, and that has forced generations of diplomats to get creative when the formal treaty process proves too cumbersome.

The Treaty Clause, tucked into Article Two, Section Two of the Constitution, establishes a deceptively simple rule: the President can make treaties, but only if two-thirds of the senators present agree. That supermajority requirement—sixty-seven votes if everyone shows up—makes treaties one of the hardest things to accomplish in American government. Harder than passing ordinary laws. Harder than overriding a presidential veto. In a polarized Senate, sometimes effectively impossible.

Learning from Failure

The Founders didn't invent this system from abstract principles. They designed it to fix a very specific problem they had lived through.

Under the Articles of Confederation—America's first attempt at national government—making treaties was a nightmare. The Continental Congress could negotiate agreements with foreign powers, but those agreements needed approval from nine of the thirteen states. That's a supermajority too, but one distributed across separate state legislatures rather than concentrated in a single body. Coordination was nearly impossible.

Worse, even when treaties were ratified, states routinely ignored them.

The most embarrassing example involved the Treaty of Paris that ended the Revolutionary War. Britain agreed to recognize American independence and withdraw its troops. In exchange, Congress promised to protect the property rights of British creditors and Loyalists who had remained loyal to the Crown. Sounds straightforward enough.

But Congress couldn't actually deliver. State governments either failed to enforce the treaty or actively passed laws to violate it. Debts owed to British merchants went unpaid. Loyalist property remained confiscated. When Britain protested, Secretary for Foreign Affairs John Jay could only suggest that Congress politely ask the states to please stop defying their treaty obligations.

Some states complied. Sort of. Others didn't bother.

This was more than embarrassing—it was dangerous. The Founders worried that if America couldn't keep its promises, other nations would stop making promises to America. Trade agreements, military alliances, territorial settlements: all would become harder to negotiate if foreign powers doubted whether the American government could follow through.

The Constitutional Compromise

When delegates gathered in Philadelphia in 1787 to draft a new Constitution, they knew the treaty-making process needed reform. But they disagreed about how.

Initially, the Convention planned to give the Senate alone the power to make treaties. This made a certain kind of sense. The Senate was designed as the more deliberative body, with longer terms and smaller membership. Its members were originally chosen by state legislatures rather than direct election, giving it an aristocratic character the Founders associated with wisdom and stability.

Then, just ten days before the Convention adjourned, they changed their minds.

The President would negotiate treaties. The Senate would provide "advice and consent." This phrase sounds collaborative, almost collegial—the President consults with wise senators before and during negotiations, then they all agree on the final product.

That's not how it works in practice.

The Senate's role has evolved into something more limited: they can approve a treaty, reject it, or approve it with conditions and reservations attached. They rarely provide "advice" during negotiations. Presidents negotiate, then present the Senate with a take-it-or-leave-it choice.

Why the President Leads

Several Founders defended giving the President primary responsibility for foreign affairs. Their arguments still resonate today.

Alexander Hamilton, writing in the Federalist Papers, argued that foreign negotiations require qualities best found in a single executive: secrecy, speed, and consistency. A large legislative body would leak sensitive information, move too slowly to respond to diplomatic opportunities, and shift positions as its membership changed. The President could act decisively.

James Madison, often called the Father of the Constitution, described the Treaty Clause as giving the Senate only "partial agency" in what was fundamentally executive power. The President drives; the Senate provides a check.

John Jay, who would become the first Chief Justice, made perhaps the most practical argument. Sometimes, he wrote, the President would need to negotiate agreements without waiting for senatorial approval. Diplomacy moves fast. Opportunities arise and vanish. A President who had to check with sixty-seven senators before every conversation with a foreign ambassador would be paralyzed.

Why Not the House?

Some delegates wanted the House of Representatives involved in treaty-making too. After all, treaties would become the law of the land—shouldn't the body closest to the people have a say?

The idea was rejected for two reasons.

First, size. The House was much larger than the Senate—today it has four hundred thirty-five members to the Senate's hundred. Large bodies are slower, leakier, and more prone to grandstanding. Sensitive diplomatic negotiations might require secrecy that a big, rowdy assembly couldn't maintain.

Second, representation. The House gave more power to populous states. The Senate gave every state equal voice. Smaller states didn't want their foreign policy interests swamped by Virginia and Pennsylvania.

Treaties as Law

Once ratified, a treaty becomes federal law. The Constitution's Supremacy Clause places treaties on equal footing with statutes passed by Congress—both are "the supreme law of the land," binding on federal and state governments alike.

The Supreme Court established this principle early. In 1796, the case of Ware versus Hylton involved the same Treaty of Paris that had caused so much trouble under the Articles. A Virginia law had allowed debtors to pay their obligations to British creditors by depositing money with the state, effectively canceling the debts. The treaty required those debts to be honored.

Which controlled—state law or treaty?

The Supreme Court ruled decisively for the treaty. State laws that conflict with federal treaties are void. This was the first time the Court applied the Supremacy Clause to strike down state legislation.

Self-Executing and Non-Self-Executing

Not all treaties work the same way once ratified. American law distinguishes between two types, a distinction that can determine whether a treaty has any practical effect at all.

Self-executing treaties take effect automatically. Once the Senate approves them and the President ratifies them, courts can enforce them directly. No additional legislation required.

Non-self-executing treaties are different. They create international obligations—America has promised something to other countries—but those promises don't become enforceable domestic law until Congress passes implementing legislation. The treaty is like a contract the political branches have signed; now they need to actually do what they promised.

Chief Justice John Marshall articulated this distinction in 1829. When a treaty "operates of itself," courts treat it like a statute. But when the treaty merely commits the government to perform some future act, it "addresses itself to the political, not the judicial department." Courts wait for Congress to act.

This distinction matters enormously. If a treaty isn't self-executing, and Congress never passes implementing legislation, the treaty might exist on paper without having any domestic legal effect. America would still be bound under international law—we promised, after all—but American courts couldn't enforce the promise.

Constitutional Limits

Can a treaty do anything? Or are there constitutional limits on what even a properly ratified agreement can accomplish?

For a while, the answer seemed to be that treaties could go very far indeed.

In Missouri versus Holland, decided in 1920, the Supreme Court upheld a treaty protecting migratory birds that might not have been constitutional as ordinary legislation. The treaty power, the Court suggested, was separate from Congress's other enumerated powers. It could reach subjects that domestic laws could not.

This expansive reading worried many observers. Could the President and Senate, through treaties, effectively amend the Constitution? Could they give away constitutional rights by international agreement?

In 1957, the Court drew a line. Reid versus Covert involved American military dependents stationed abroad who were tried by military courts-martial rather than civilian juries. The government argued that executive agreements with host countries authorized these trials.

The Supreme Court disagreed. The Bill of Rights could not be abrogated by treaty or executive agreement. No international commitment could override the fundamental constitutional protections Americans enjoy. Treaties remain powerful, but they cannot rewrite the Constitution itself.

The Medellín Moment

The Supreme Court's 2008 decision in Medellín versus Texas further clarified—and limited—treaty power.

The case involved a Mexican national on death row in Texas who had not been informed of his right under an international treaty to contact the Mexican consulate. The International Court of Justice ruled that the United States had violated the treaty and ordered review of the convictions.

President George W. Bush issued a memorandum directing state courts to comply with the international ruling. Texas refused.

The Supreme Court sided with Texas. The relevant treaty, though binding internationally, was not self-executing. It did not automatically create enforceable domestic law. And the President could not unilaterally make a non-self-executing treaty enforceable without Congressional action.

This decision sent a clear message: treaties require either explicit self-executing language or Congressional implementation to become enforceable law. Presidential memoranda aren't enough.

The End-Run: Executive Agreements

Given how difficult the treaty process can be—that two-thirds supermajority is a high bar—Presidents have increasingly relied on alternatives.

The Constitution mentions only treaties. But it also, in a different section, distinguishes between "treaties" that states cannot make and "agreements" that states can make with Congressional consent. Some scholars read this as implying that not all international agreements need to follow the treaty procedure.

Thomas Jefferson made this argument as early as 1791. Sometimes, he suggested, it's better to accomplish things through ordinary legislation rather than treaties. Legislation can be changed when it becomes inconvenient. Treaties are "forever irrevocable" without the consent of all parties.

This insight opened a door that subsequent administrations have walked through enthusiastically.

Today, American law recognizes three types of international agreements:

First, treaties proper, made under Article Two with two-thirds Senate approval.

Second, congressional-executive agreements, which need simple majorities in both the House and Senate plus the President's signature—the same process as ordinary legislation.

Third, sole executive agreements, which the President enters unilaterally based on inherent constitutional authority over foreign affairs.

The Numbers Tell a Story

Between 1946 and 1999, the federal government completed nearly sixteen thousand international agreements. How many were treaties submitted to the Senate under Article Two?

Just nine hundred twelve. About six percent.

The vast majority were congressional-executive agreements or sole executive agreements. The formal treaty process has become the exception, not the rule.

This pattern reflects practical realities. Trade agreements—the North American Free Trade Agreement, accession to the World Trade Organization—typically take the form of congressional-executive agreements. Getting fifty-one votes in the Senate is much easier than getting sixty-seven. And involving the House makes sense given that trade policy affects domestic industries and requires changes to tariff laws that the House must approve anyway.

Arms control agreements, by contrast, often use the treaty process. These touch on matters of war and peace, national security at its most fundamental. The solemnity of the treaty procedure matches the gravity of the subject.

Executive agreements tend to cover matters clearly within presidential authority: diplomatic relations, claims settlements between citizens and foreign governments, certain national security matters. The Iran nuclear deal—formally the Joint Comprehensive Plan of Action—was an executive agreement rather than a treaty, which meant a subsequent President could withdraw from it without Congressional involvement.

The Senate's Limited Role

What exactly does the Senate do when it exercises "advice and consent"?

Less than the phrase suggests.

In practice, the Senate doesn't advise during negotiations. Presidents negotiate, often in secret, then present completed agreements for ratification. The Senate's role is reactive: approve, reject, or approve with conditions.

Those conditions can be significant. The Senate can attach reservations limiting American obligations under a treaty. It can add understandings clarifying how the United States interprets particular provisions. It can include declarations stating positions that don't affect legal obligations. And it can refuse to vote at all, leaving treaties in limbo indefinitely.

The League of Nations treaty died this way. President Woodrow Wilson negotiated it personally after World War One, invested enormous political capital, and presented it to the Senate expecting approval. The Senate attached reservations Wilson found unacceptable. Wilson refused to compromise. The treaty never received the necessary two-thirds vote. America stayed out of the League.

Breaking Promises

Congress has another power the Constitution doesn't explicitly mention: the power to break treaties.

Since 1884, the Supreme Court has consistently held that Congress can abrogate a treaty through ordinary legislation, even if this violates America's international obligations. If Congress passes a law inconsistent with a treaty, courts will enforce the law. The fact that foreign nations might consider the treaty still binding is, the Court has said, a "political question" beyond judicial review.

This creates an odd situation. America promises something by treaty. That treaty becomes the law of the land. But Congress can later pass a conflicting law, and courts will enforce the new law even though it breaks our promise. International consequences—damaged relationships, reciprocal violations, reputational harm—are for the political branches to worry about.

The Modern Dilemma

The Treaty Clause reflects eighteenth-century assumptions about foreign affairs: that international agreements would be rare, solemn undertakings requiring careful deliberation. The two-thirds requirement made sense when treaties might commit the nation to war or fundamentally alter territorial boundaries.

Modern international relations look very different. Trade agreements run to thousands of pages. Climate accords involve nearly every nation on Earth. Arms control treaties require technical expertise that few senators possess. International cooperation on everything from aviation safety to intellectual property to pandemic response requires constant negotiation and adjustment.

The formal treaty process—slow, requiring supermajority approval, resistant to modification—fits awkwardly with these demands. That's why alternatives have proliferated.

But those alternatives have downsides too. Executive agreements can be undone by the next President. Congressional-executive agreements require only simple majorities, making them easier to pass but also easier to undo. Foreign governments may wonder whether any American commitment will survive the next election.

The Treaty Clause, for all its constraints, offers something valuable: when America does make a treaty, the high bar for approval signals serious commitment. The very difficulty of the process makes the result more credible.

Whether that tradeoff—fewer but more credible commitments—serves American interests in an interconnected world remains an open question. The Founders designed a system to prevent hasty entanglements. Whether it's suited for an age requiring constant engagement is something every administration must navigate anew.