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...

Clause 2. Treaties and Appointment of Officers............ 469

The Treaty-Making Power........................... 469

President and Senate...................... 469

Negotiation, a Presidential

Monopoly...................... 470

Treaties as Law of the Land............... 471

Origin of the Conception.......... 472

Treaties and the States........... 472

Treaties and Congress............. 474

Congressional Repeal of Treaties.. 477

Treaties versus Prior Acts of

Congress...................... 478

When Is a Treaty Self-Executing... 479

Treaties and the Necessary and

Proper Clause................. 480

Constitutional Limitations on the Treaty

Power................................. 482

Interpretation and Termination of Treaties as

International Compacts........................ 487

Termination of Treaties by Notice. 487

Determination Whether a Treaty Has

Lapsed........................ 491

Status of a Treaty a Political

Question...................... 491

Indian Treaties........................... 492

Present Status of Indian Treaties. 493

International Agreements Without Senate Approval.. 494

Executive Agreements by Authorization of

Congress.............................. 495

Reciprocal Trade Agreements....... 496

The Constitutionality of Trade

Agreements.................... 496

The Lend-Lease Act................ 497

International Organizations....... 498

Executive Agreements Authorized by

Treaties.............................. 498

Arbitration Agreements............ 498

Agreements Under the United

Nations Charter............... 499

Status of Forces Agreements....... 500

Executive Agreements on the Sole

Constitutional Authority of the

President............................. 500

The Litvinov Agreement............ 503

The Hull-Lothian Agreement........ 503

The Post-War Years................ 504

The Domestic Obligation of Executive

Agreements............................ 504

The Executive Establishment....................... 507

 

[[Page 411]]

...

 

 

ARTICLE II

 

EXECUTIVE DEPARTMENT

 

SECTION 2. POWERS AND DUTIES OF THE PRESIDENT

 

 

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 Court of Law, or in the Heads of Departments.

 

THE TREATY-MAKING POWER

 

President and Senate

 

The plan which the Committee of Detail reported to the Federal

Convention on August 6, 1787 provided that ``the Senate of the United

States shall have power to make treaties, and to appoint Ambassadors,

and Judges of the Supreme Court.''\255\ Not until September 7, ten days

before the Convention's final adjournment, was the President made a

participant in these powers.\256\ The constitutional clause evidently

assumes that the President and Senate will be associated throughout the

entire process of making a treaty, al

 

[[Page 470]]

though Jay, writing in The Federalist, foresaw that the initiative must

often be seized by the President without benefit of senatorial

counsel.\257\ Yet, so late as 1818, Rufus King, Senator from New York,

who had been a member of the Convention, declared on the floor of the

Senate: ``In these concerns the Senate are the Constitutional and the

only responsible counsellors of the President. And in this capacity the

Senate may, and ought to, look into and watch over every branch of the

foreign affairs of the nation; they may, therefore, at any time call for

full and exact information respecting the foreign affairs, and express

their opinion and advice to the President respecting the same, when, and

under whatever other circumstances, they may think such advice

expedient.''\258\

 

\255\2 M. Farrand, op. cit., n.4, 183.

\256\Id., 538-539.

\257\No. 64 (J. Cooke ed., 1961), 435-436.

\258\31 Annals of Congress 106 (1818).

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Negotiation, a Presidential Monopoly.--Actually, the negotiation

of treaties had long since been taken over by the President; the

Senate's role in relation to treaties is today essentially legislative

in character.\259\ ``He alone negotiates. Into the field of negotiation,

the Senate cannot intrude; and Congress itself is powerless to invade

it,'' declared Justice Sutherland for the Court in 1936.\260\ The Senate

must, moreover, content itself with such information as the President

chooses to furnish it.\261\ In performing the function that remains to

it, however, it has several options. It may consent unconditionally to a

proposed treaty, it may refuse its consent, or it may stipulate

conditions in the form of amendments to the treaty, of reservations to

the act of ratification, or of statements of understanding or other

declarations, the formal difference between the first two and the third

being that amendments and reservations, if accepted by the President

must be communicated to the other parties to the treaty, and, at least

with respect to amendments and often reservations as well, require

reopening negotiations and changes, whereas the other actions may have

more problematic results.\262\ The act of ratification for the United

States is the President's act, but it may not be forthcoming unless the

Senate has consented to it by the required two-thirds of the Senators

 

[[Page 471]]

present, which signifies two-thirds of a quorum, otherwise the consent

rendered would not be that of the Senate as organized under the

Constitution to do business.\263\ Conversely, the President may, if

dissatisfied with amendments which have been affixed by the Senate to a

proposed treaty or with the conditions stipulated by it to ratification,

decide to abandon the negotiation, which he is entirely free to do.\264\

 

\259\Washington sought to use the Senate as a council, but the

effort proved futile, principally because the Senate balked. For the

details see E. Corwin, op. cit., n.44, 207-217.

\260\United States v. Curtiss-Wright Export Corp., 299 U.S. 304,

319 (1936).

\261\E. Corwin, op. cit., n.44, 428-429.

\262\Treaties and Other International Agreements: The Role of

the United States Senate, A Study Prepared for the Senate Committee on

Foreign Relations by the Congressional Research Service, 103d Cong., 1st

sess. (Comm. Print) (1993), 96-98 (hereinafter CRS Study); see also

American Law Institute, Restatement (Third) of the Law, The Foreign

Relations Law of the United States (1987), Sec. 314 (hereinafter

Restatement, Foreign Relations). See Fourteen Diamond Rings v. United

States, 183 U.S. 176, 183 (1901).

\263\Cf. Art. I, Sec. 5, cl. 1; see also Missouri Pac. Ry. Co.

v. Kansas, 248 U.S. 276, 283-284 (1919).

\264\For instance, see S. Crandall, Treaties, Their Making and

Enforcement (Washington: 2d ed. 1916), 53; CRS Study, op. cit., n.264,

109-120.

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Treaties as Law of the Land

 

Treaty commitments of the United States are of two kinds. In the

language of Chief Justice Marshall in 1829: ``A treaty is, in its

nature, a contract between two nations, not a legislative act. It does

not generally effect, of itself, the object to be accomplished;

especially, so far as its operation is intraterritorial; but is carried

into execution by the sovereign power of the respective parties to the

instrument.

 

``In the United States, a different principle is established.

Our constitution declares a treaty to be the law of the land. It is,

consequently, to be regarded in courts of justice as equivalent to an

act of the legislature, whenever it operates of itself, without the aid

of any legislative provision. But when the terms of the stipulation

import a contract--when either of the parties engages to perform a

particular act, the treaty addresses itself to the political, not the

judicial department; and the legislature must execute the contract,

before it can become a rule for the Court.''\265\ To the same effect,

but more accurate, is Justice Miller's language for the Court a half

century later, in the Head Money Cases: ``A treaty is primarily a

compact between independent nations. It depends for the enforcement of

its provisions on the interest and the honor of the governments which

are parties of it. . . . But a treaty may also contain provisions which

confer certain rights upon the citizens or subjects of one of the

nations residing in the territorial limits of the other, which partake

of the nature of municipal law, and which are capable of enforcement as

between private parties in the courts of the country.''\266\

 

\265\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). See

The Federalist, No. 75 (J. Cooke ed., 1961), 504-505.

\266\112 U.S. 580, 598 (1884). For treaty provisions operative

as ``law of the land'' (self-executing), see S. Crandall, op. cit.,

n.264, 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346.

For treaty provisions of an ``executory'' character, see id., 162-163,

232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op. cit.,

n.262, 41-68; Restatement, Foreign Relations, op. cit., n.262,

Sec. Sec. 111-115.

 

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[[Page 472]]

 

Origin of the Conception.--How did this distinctive feature of

the Constitution come about, by virtue of which the treaty-making

authority is enabled to stamp upon its promises the quality of municipal

law, thereby rendering them enforceable by the courts without further

action? The short answer is that Article VI, paragraph 2, makes treaties

the supreme law of the land on the same footing with acts of

Congress.\267\ The clause was a direct result of one of the major

weaknesses of the Articles of Confederation. Although the Articles

entrusted the treaty-making power to Congress, fulfillment of Congress'

promises was dependent on the state legislatures.\268\ Particularly with

regard to provisions of the Treaty of Peace of 1783,\269\ in which

Congress stipulated to protect the property rights of British creditors

of American citizens and of the former Loyalists,\270\ the promises were

not only ignored but were deliberately flouted by many

legislatures.\271\ Upon repeated British protests, John Jay, the

Secretary for Foreign Affairs, suggested to Congress that it request

state legislatures to repeal all legislation repugnant to the Treaty of

Peace and to authorize their courts to carry the treaty into

effect.\272\ Although seven States did comply to some extent, the

impotency of Congress to effectuate its treaty guarantees was obvious to

the Framers who devised Article VI, paragraph 2, to take care of the

situation.\273\

 

\267\See infra, Art. VI, parag. 2 (the supremacy clause).

\268\S. Crandall, op. cit., n.264, ch. 3.

\269\Id., 30-32. For the text of the Treaty, see 1 W. Malloy

(ed.), Treaties, Conventions, International Acts, Protocols and

Agreements Between the United States of America and Other Powers (1776-

1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586.

\270\Id., 588.

\271\R. Morris, John Jay, the Nation, and the Court (Boston:

1967), 73-84.

\272\S. Crandall, op. cit., n.264, 36-40.

\273\The Convention at first leaned toward giving Congress a

negative over state laws which were contrary to federal statutes or

treaties, 1 M. Farrand, op. cit., n.4, 47, 54, and then adopted the

Paterson Plan which made treaties the supreme law of the land, binding

on state judges, and authorized the Executive to use force to compel

observance when such treaties were resisted. Id., 245, 316, 2 id., 27-

29. In the draft reported by the Committee on Detail, the language thus

adopted was close to the present supremacy clause; the draft omitted the

authorization of force from the clause, id., 183, but in another clause

the legislative branch was authorized to call out the militia to, inter

alia, ``enforce treaties''. Id., 182. The two words were struck

subsequently ``as being superfluous'' in view of the supremacy clause.

Id., 389-390.

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Treaties and the States.--As it so happened, the first case in

which the Supreme Court dealt with the question of the effect of

treaties on state laws involved the same issue that had prompted the

drafting of Article VI, paragraph 2. During the Revolutionary War, the

Virginia legislature provided that the Commonwealth's paper money, which

was depreciating rapidly, was to be legal cur

 

[[Page 473]]

rency for the payment of debts and to confound creditors who would not

accept the currency provided that Virginia citizens could pay into the

state treasury debts owed by them to subjects of Great Britain, which

money was to be used to prosecute the war, and that the auditor would

give the debtor a certificate of payment which would discharge the

debtor of all future obligations to the creditor.\274\ The Virginia

scheme directly contradicted the assurances in the peace treaty that no

bars to collection by British creditors would be raised, and in Ware v.

Hylton\275\ the Court struck down the state law as violative of the

treaty that Article VI, paragraph 2, made superior. Said Justice Chase:

``A treaty cannot be the Supreme law of the land, that is of all the

United States, if any act of a State Legislature can stand in its way.

If the constitution of a State . . . must give way to a treaty, and fall

before it; can it be questioned, whether the less power, an act of the

state legislature, must not be prostrate? It is the declared will of the

people of the United States that every treaty made, by the authority of

the United States shall be superior to the Constitution and laws of any

individual State; and their will alone is to decide.''\276\

 

\274\9 W. Hening, Statutes of Virginia (Richmond: 1821), 377-

380.

\275\3 Dall. (3 U.S.) 199 (1796).

\276\Id., 236-237 (emphasis by Court).

---------------------------------------------------------------------------

 

In Hopkirk v. Bell,\277\ the Court further held that this same

treaty provision prevented the operation of a Virginia statute of

limitation to bar collection of antecedent debts. In numerous subsequent

cases, the Court invariably ruled that treaty provisions superseded

inconsistent state laws governing the right of aliens to inherit real

estate.\278\ Such a case was Hauenstein v. Lynham,\279\ in which the

Court upheld the right of a citizen of the Swiss Republic, under the

treaty of 1850 with that country, to recover the estate of a relative

dying intestate in Virginia, to sell the same, and to export the

proceeds of the sale.\280\

 

\277\3 Cr. (7 U.S.) 454 (1806).

\278\See the discussion and cases cited in Hauenstein v. Lynham,

100 U.S. 483, 489-490 (1880).

\279\100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187,

197-198 (1961), the International Monetary Fund (Bretton Woods)

Agreement of 1945, to which the United States and Yugoslavia were

parties, and an Agreement of 1948 between these two nations, coupled

with continued American observance of an 1881 treaty granting reciprocal

rights of inheritance to Yugoslavian and American nations, were held to

preclude Oregon from denying Yugoslavian aliens their treaty rights

because of a fear that Yugoslavian currency laws implementing such

Agreements prevented American nationals from withdrawing the proceeds

from the sale of property inherited in the latter country.

\280\See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v.

Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929);

Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to

acquire and dispose of property does not except aliens from the

operation of a state statute prohibiting conveyances of homestead

property by any instrument not executed by both husband and wife. Todok

v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation

guaranteeing to the citizens of each country, in the territory of the

other, equality with the natives of rights and privileges in respect to

protection and security of person and property, violated by a state

statute which denied to a non-resident alien wife of a person killed

within the State, the right to sue for wrongful death. Such right was

afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R.

Co., 213 U.S. 268 (1909). The treaty in question having been amended in

view of this decision, the question arose whether the new provision

covered the case of death without fault or negligence in which, by the

Pennsylvania Workmen's Compensation Act, compensation was expressly

limited to resident parents; the Supreme Court held that it did not.

Liberato v. Royer, 270 U.S. 535 (1926).

 

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[[Page 474]]

 

Certain more recent cases stem from California legislation, most

of it directed against Japanese immigrants. A statute which excluded

aliens ineligible to American citizenship from owning real estate was

upheld in 1923 on the ground that the treaty in question did not secure

the rights claimed.\281\ But in Oyama v. California,\282\ a majority of

the Court indicated a strongly held opinion that this legislation

conflicted with the equal protection clause of the Fourteenth Amendment,

a view which has since received the endorsement of the California

Supreme Court by a narrow majority.\283\ Meantime, California was

informed that the rights of German nationals, under the Treaty of

December 8, 1923, between the United States and the Reich, to whom real

property in the United States had descended or been devised, to dispose

of it, had survived the recent war and certain war legislation, and

accordingly prevailed over conflicting state legislation.\284\

 

\281\Terrace v. Thompson, 263 U.S. 197 (1923).

\282\332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334

U.S. 410 (1948), in which a California statute prohibiting the issuance

of fishing licenses to persons ineligible to citizenship was disallowed,

both on the basis of the Fourteenth Amendment and on the ground that the

statute invaded a field of power reserved to the National Government,

namely, the determination of the conditions on which aliens may be

admitted, naturalized, and permitted to reside in the United States. For

the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was

relied upon.

\283\This occurred in the much advertised case of Sei Fujii v.

State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court

had held that the legislation involved was void under the United Nations

Charter, but the California Supreme Court was unanimous in rejecting

this view. The Charter provisions invoked in this connection [Arts. 1,

55 and 56], said Chief Justice Gibson, ``we are satisfied . . . were not

intended to supersede domestic legislation.'' That is, the Charter

provisions were not self-executing. Restatement, Foreign Relations, op.

cit., n.262, Sec. 701, Reporters' Note 5, pp. 155-156.

\284\Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v.

Oregon, 366 U.S. 187 (1961).

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Treaties and Congress.--In the Convention, a proposal to require

the adoption of treaties through enactment of a law before they should

be binding was rejected.\285\ But the years since have seen numerous

controversies with regard to the duties and obligations of Congress, the

necessity for congressional action, and the ef

 

[[Page 475]]

fects of statutes, in connection with the treaty power. For purposes of

this section, the question is whether entry into and ratification of a

treaty is sufficient in all cases to make the treaty provisions the

``law of the land'' or whether there are some types of treaty provisions

which only a subsequent act of Congress can put into effect? The

language quoted above\286\ from Foster v. Neilson\287\ early established

that not all treaties are self-executing, for as Marshall there said, a

treaty is ``to be regarded in courts of justice as equivalent to an act

of the legislature, whenever it operates of itself, without the aid of

any legislative provision.''\288\

 

\285\2 M. Farrand, op. cit., n.4, 392-394.

\286\Supra, text at n.265.

\287\2 Pet. (27 U.S.) 253, 314 (1829).

\288\Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ``When

the stipulations are not self-executing they can only be enforced

pursuant to legislation to carry them into effect. . . . If the treaty

contains stipulations which are self-executing that is, require no

legislation to make them operative, to that extent they have the force

and effect of a legislative enactment.''; S. Crandall, op. cit., n.264,

chs. 11-15.

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Leaving aside the question when a treaty is and is not self-

executing,\289\ the issue of the necessity of congressional

implementation and the obligation to implement has frequently roiled

congressional debates. The matter arose initially in 1796 in connection

with the Jay Treaty,\290\ certain provisions of which required

appropriations to carry them into effect. In view of the third clause of

Article I, Sec. 9, which says that ``no money shall be drawn from the

Treasury, but in Consequence of Appropriations made by law . . .'', it

seems to have been universally conceded that Congress must be applied to

if the treaty provisions were to be executed.\291\ A bill was introduced

into the House to appropriate the needed funds and its supporters,

within and without Congress, offered the contention that inasmuch as the

treaty was now the law of the land the legislative branch was bound to

enact the bill without further ado; opponents led by Madison and

Gallatin contended that the House had complete discretion whether or not

to carry into effect treaty provisions.\292\ At the conclusion of the

debate, the House voted not only the money but a resolution offered by

Madison stating that it did

 

[[Page 476]]

not claim any agency in the treaty-making process, ``but that when a

treaty stipulates regulations on any of the subjects submitted by the

Constitution to the power of Congress, it must depend for its execution

as to such stipulations on a law or laws to be passed by Congress, and

it is the constitutional right and duty of the House of Representatives

in all such cases to deliberate on the expediency or inexpediency of

carrying such treaty into effect, and to determine and act thereon as in

their judgment may be most conducive to the public good.''\293\ This

early precedent with regard to appropriations has apparently been

uniformly adhered to.\294\

 

\289\See infra, text at nn.312-316.

\290\8 Stat. 116 (1794).

\291\The story is told in numerous sources. E.g., S. Crandall,

op. cit., n.264, 165-171. For Washington's message refusing to submit

papers relating to the treaty to the House, see J. Richardson, op. cit.,

n.42, 123.

\292\Debate in the House ran for more than a month. It was

excerpted from the Annals and separately published as Debates in the

House of Representatives of the United States, During the First Session

of the Fourth Congress upon the Constitutional Powers of the House with

Respect to Treaties (Philadelphia: 1796). A source of much valuable

information on the views of the Framers and those who came after them on

the treaty power, the debates are analyzed in detail in E. Byrd,

Treaties and Executive Agreements in the United States (The Hague:

1960), 35-59.

\293\5 Annals of Congress 771, 782 (1796). A resolution similar

in language was adopted by the House in 1871. Cong. Globe, 42d Congress,

1st sess. (1871), 835.

\294\S. Crandall, op. cit., n.264, 171-182; 1 W. Willoughby, The

Constitutional Law of the United States (New York: 2d ed. 1929), 549-

552; but see Restatement, Foreign Relations, op. cit., n.262, Sec. 111,

Reporters' Note 7, p. 57. See also H. Rept. 4177, 49th Congress, 2d

sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

---------------------------------------------------------------------------

 

Similarly, with regard to treaties which modify and change

commercial tariff arrangements, the practice has been that the House

always insisted on and the Senate acquiesced in legislation to carry

into effect the provisions of such treaties.\295\ The earliest

congressional dispute came over an 1815 Convention with Great

Britain,\296\ which provided for reciprocal reduction of duties.

President Madison thereupon recommended to Congress such legislation as

the convention might require for effectuation. The Senate and some

members of the House were of the view that no implementing legislation

was necessary because of a statute, which already permitted the

President to reduce duties on goods of nations that did not discriminate

against United States goods; the House majority felt otherwise and

compromise legislation was finally enacted acceptable to both points of

view.\297\ But subsequent cases have seen legislation enacted,\298\ the

Senate once refused ratification of a treaty, which purported to reduce

statutorily-determined duties,\299\ and congressional enactment of

authority for the President to negotiate reciprocal trade agreements all

seem to point to the necessity of some form of congressional

implementation.

 

\295\S. Crandall, op. cit., n.264, 183-199.

\296\8 Stat. 228 (1815).

\297\3 Stat. 255 (1816). See S. Crandall, op. cit., n.264, 184-

188.

\298\Id., 188-195; 1 W. Willoughby, op. cit., n.294, 555-560.

\299\S. Crandall, op. cit., n.264, 189-190.

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What other treaty provisions need congressional implementation

is subject to argument. In a 1907 memorandum approved by the Secretary

of State, it is said, in summary of the practice and reasoning from the

text of the Constitution, that the limitation on the treaty power which

necessitate legislative implementation may

 

[[Page 477]]

``be found in the provisions of the Constitution which expressly confide

in Congress or in other branches of the Federal Government the exercise

of certain of the delegated powers. . . .''\300\ The same thought has

been expressed in Congress\301\ and by commentators.\302\ Resolution of

the issue seems particularly one for the attention of the legislative

and executive branches rather than for the courts.

 

\300\Anderson, The Extent and Limitations of the Treaty-Making

Power, 1 Amer. J. Int. L. 636, 641 (1907).

\301\At the conclusion of the 1815 debate, the Senate conferees

noted in their report that some treaties might need legislative

implementation, which Congress was bound to provide, but did not

indicate what in their opinion made some treaties self-executing and

others not. 29 Annals of Congress 160 (1816). The House conferees

observed that they thought, and that in their opinion the Senate

conferees agreed, that legislative implementation was necessary to carry

into effect all treaties which contained ``stipulations requiring

appropriations, or which might bind the nation to lay taxes, to raise

armies, to support navies, to grant subsidies, to create States, or to

cede territory. . . .'' Id., 1019. Much the same language was included

in a later report. H. Rept. No. 37, 40th Congress, 2d sess. (1868).

Controversy with respect to the sufficiency of Senate ratification of

the Panama Canal treaties to dispose of United States property therein

to Panama was extensive. A divided Court of Appeals for the District of

Columbia reached the question and held that Senate approval of the

treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055

(D.C.Cir.), cert. den., 436 U. S. 907 (1978).

\302\T. Cooley, General Principles of Constitutional Law (New

York: 3d ed. 1898, 175; Q. Wright, The Control of American Foreign

Relations (New York: 1922), 353-356.

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Congressional Repeal of Treaties.--It is in respect to his

contention that, when it is asked to carry a treaty into effect,

Congress has the constitutional right, and indeed the duty, to determine

the matter according to its own ideas of what is expedient, that Madison

has been most completely vindicated by developments. This is seen in the

answer which the Court has returned to the question: What happens when a

treaty provision and an act of Congress conflict? The answer is, that

neither has any intrinsic superiority over the other and that therefore

the one of later date will prevail leges posteriores priores contrarias

abrogant. In short, the treaty commitments of the United States do not

diminish Congress' constitutional powers. To be sure, legislative repeal

of a treaty as law of the land may amount to a violation of it as an

international contract in the judgment of the other party to it. In such

case, as the Court has said: ``Its infraction becomes the subject of

international negotiations and reclamations, so far as the injured party

chooses to seek redress, which may in the end be enforced by actual war.

It is obvious that with all this the judicial courts have nothing to do

and can give no redress.''\303\

 

\303\Head Money Cases, 112 U.S. 580, 598-599 (1884). The

repealability of treaties by act of Congress was first asserted in an

opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year

following the doctrine was adopted judicially in a lengthy and cogently

argued opinion of Justice Curtis, speaking for a United States circuit

court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass

1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871);

United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496

(1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese

Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S.

190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721

(1893). ``Congress by legislation, and so far as the people and

authorities of the United States are concerned, could abrogate a treaty

made between this country and another country which had been negotiated

by the President and approved by the Senate.'' La Abra Silver Mining Co.

v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 6

Wall. (73 U.S.) 160, 165-166 (1868), wherein it is stated obiter that

``Congress is bound to regard the public treaties, and it had no power

. . . to nullify [Indian] titles confirmed many years before. . . .''

 

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[[Page 478]]

 

Treaties Versus Prior Acts of Congress.--The cases are numerous

in which the Court has enforced statutory provisions which were

recognized by it as superseding prior treaty engagements. Chief Justice

Marshall early asserted that the converse would be true as well,\304\

that a treaty which is self-executing is the law of the land and

prevails over an earlier inconsistent statute, a proposition repeated

many times in dicta.\305\ But there is dispute whether in fact a treaty

has ever been held to have repealed or superseded an inconsistent

statute. Willoughby, for example, says: ``In fact, however, there have

been few (the writer is not certain that there has been any) instances

in which a treaty inconsistent with a prior act of Congress has been

given full force and effect as law in this country without the assent of

Congress. There may indeed have been cases in which, by treaty, certain

action has been taken without reference to existing Federal laws, as,

for example, where by treaty certain populations have been collectively

naturalized, but such treaty action has not operated to repeal or annul

the existing law upon the subject.''\306\

 

\304\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-315 (1829). In

a later case, it was determined in a different situation that by its

terms the treaty in issue, which had been assumed to be executory in the

earlier case, was self-executing. United States v. Percheman, 7 Pet. (32

U.S.) 51 (1833).

\305\E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220-221

(1902); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871);

Johnson v. Browne, 205 U.S. 309, 320-321 (1907); Whitney v. Roberston,

124 U.S. 190, 194 (1888).

\306\1 W. Willoughby, op. cit., n.294, 555.

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The one instance that may be an exception\307\ is Cook v. United

States.\308\ There, a divided Court held that a 1924 treaty with

 

[[Page 479]]

Great Britain, allowing the inspection of English vessels for contraband

liquor and seizure if any was found only if such vessels were within the

distance from the coast that could be traversed in one hour by the

vessel suspecting of endeavoring to violate the prohibition laws, had

superseded the authority conferred by a section of the Tariff Act of

1922\309\ for Coast Guard officers to inspect and seize any vessel

within four leagues--12 miles--of the coast under like circumstances.

The difficulty with the case is that the Tariff Act provision had been

reenacted in 1930,\310\ so that a simple application of the rule of the

later governing should have caused a different result. It may be

suspected that the low estate to which Prohibition had fallen and a

desire to avoid a diplomatic controversy should the seizure at issue

have been upheld were more than slightly influential in the Court's

decision.

 

\307\Other cases, which are cited in some sources, appear

distinguishable. United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103

(1801), applied a treaty entered into subsequent to enactment of a

statute abrogating all treaties then in effect between the United States

and France, so that it is inaccurate to refer to the treaty as

superseding a prior statute. In United States v. Forty-Three Gallons of

Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which

the tribe ceded certain territory, later included in a State, provided

that a federal law restricting the sale of liquor on the reservation

would continue in effect in the territory ceded; the Court found the

stipulation an appropriate subject for settlement by treaty and the

provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).

\308\288 U.S. 102 (1933).

\309\42 Stat. 858, 979, Sec. 581.

\310\46 Stat. 590, 747, Sec. 581.

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When Is a Treaty Self-Executing.--Several references have been

made above to a distinction between treaties as self-executing and as

merely executory. But what is it about a treaty that makes it the law of

the land and which gives a private citizen the right to rely on it in a

court of law? As early as 1801, the Supreme Court took notice of a

treaty and finding it applicable to the situation before gave judgment

for the petitioner based on it.\311\ In Foster v. Neilson,\312\ Chief

Justice Marshall explained that a treaty is to be regarded in courts

``as equivalent to an act of the legislature, whenever it operates of

itself, without the aid of any legislative provision.'' It appears thus

that the Court has had in mind two characteristics of treaties which

keep them from being self-executing. First, ``when the terms of the

stipulation import a contract--when either of the parties engages to

perform a particular act, the treaty addresses itself to the political,

not the judicial department; and the legislature must execute the

contract, before it can become a rule for the Court.''\313\ In other

words, the treaty itself may by its terms require implementation, as by

an express stipulation for legislative execution.\314\

 

\311\United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801).

\312\2 Pet. (27 U.S.) 253, 314-315 (1829).

\313\Ibid.

\314\Generally, the qualifications may have been inserted in

treaties out of a belief in their constitutional necessity or because of

some policy reason. In regard to the former, it has always apparently

been the practice to insert in treaties affecting the revenue laws of

the United States a proviso that they should not be deemed effective

until the necessary laws to carry them into operation should be enacted

by Congress. 1 W. Willoughby, op. cit., n.294, 558. Perhaps of the same

nature was a qualification that cession of certain property in the Canal

Zone should be dependent upon action by Congress inserted in Article V

of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In

regard to the latter, it may be noted that Article V of the Webster-

Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to

Canada of land in Maine and Massachusetts was conditioned upon assent by

the two States and payment to them of compensation. S. Crandall, op.

cit., n.264, 222-224.

 

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[[Page 480]]

 

Second, the nature of the stipulation may require legislative

execution. That is, with regard to the issue discussed above, whether

the delegated powers of Congress imposes any limitation on the treaty

power, it may be that a treaty provision will be incapable of execution

without legislative action. As one authority says: ``Practically this

distinction depends upon whether or not the courts and the executive are

able to enforce the provision without enabling legislation.

Fundamentally it depends upon whether the obligation is imposed on

private individuals or on public authorities. . . .

 

``Treaty provisions which define the rights and obligations of

private individuals and lay down general principles for the guidance of

military, naval or administrative officials in relation thereto are

usually considered self-executing. Thus treaty provisions assuring

aliens equal civil rights with citizens, defining the limits of national

jurisdiction, and prescribing rules of prize, war and neutrality, have

been so considered. . . .

 

``On the other hand certain treaty obligations are addressed

solely to public authorities, of which may be mentioned those requiring

the payment of money, the cession of territory, the guarantee of

territory or independence, the conclusion of subsequent treaties on

described subjects, the participation in international organizations,

the collection and supplying of information, and direction of postal,

telegraphic or other services, the construction of buildings, bridges,

lighthouses, etc.''\315\ It may well be that these two characteristics

merge with each other at many points and the language of the Court is

not always helpful in distinguishing them.\316\

 

\315\Q. Wright, op. cit., n.302, 207-208. See also L. Henkin,

Foreign Affairs and the Constitution (Mineola, N.Y.: 1972), 156-162.

\316\Thus, compare Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-

315 (1829), with Cook v. United States, 288 U.S. 102, 118-119 (1933).

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Treaties and the Necessary and Proper Clause.--What power, or

powers, does Congress exercise when it enacts legislation for the

purpose of carrying treaties of the United States into effect? When the

subject matter of the treaty falls within the ambit of Congress'

enumerated powers, then it is these powers which it exercises in

carrying such treaty into effect. But if the treaty deals with a subject

which falls within the national jurisdiction because of its

international character, then recourse is had to the necessary and

proper clause. Thus, of itself, Congress would have had no power to

confer judicial powers upon foreign consuls in the United

 

[[Page 481]]

States, but the treaty-power can do this and has done it repeatedly and

Congress has supplemented these treaties by appropriate

legislation.\317\ Congress could not confer judicial power upon American

consuls abroad to be there exercised over American citizens, but the

treaty-power can and has, and Congress has passed legislation perfecting

such agreements and such legislation has been upheld.\318\

 

\317\Acts of March 2, 1829, 4 Stat. 359 and of February 24,

1855, 10 Stat. 614.

\318\See In re Ross, 140 U.S. 453 (1891), where the treaty

provisions involved are given. The supplementary legislation, later

reenacted at Rev. Stat. 4083-4091, was repealed by the Joint Res. of

August 1, 1956, 70 Stat. 774. The validity of the Ross case was

subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75

(1957).

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Again, Congress of itself could not provide for the extradition

of fugitives from justice, but the treaty-power can and has done so

scores of times, and Congress has passed legislation carrying our

extradition treaties into effect.\319\ And Congress could not ordinarily

penalize private acts of violence within a State, but it can punish such

acts if they deprive aliens of their rights under a treaty.\320\

Referring to such legislation, the Court has said: ``The power of

Congress to make all laws necessary and proper for carrying into

execution as well the powers enumerated in section 8 of Article I of the

Constitution, as all others vested in the Government of the United

States, or in any Department or the officers thereof, includes the power

to enact such legislation as is appropriate to give efficacy to any

stipulations which it is competent for the President by and with the

advice and consent of the Senate to insert in a treaty with foreign

power.''\321\ In a word, the treaty-power cannot purport to amend the

Constitution by adding to the list of Congress' enumerated powers, but

having acted, the consequence will often be that it has provided

Congress with an opportunity to enact measures which independently of a

treaty Congress could not pass; the only question that can be raised as

to such measures will be

 

[[Page 482]]

whether they are ``necessary and proper'' measures for the carrying of

the treaty in question into operation.

 

\319\18 U.S.C. Sec. Sec. 3181-3195.

\320\Baldwin v. Franks, 120 U.S. 678, 683 (1887).

\321\Neely v. Henkel, 180 U.S. 109, 121 (1901). A different

theory is offered by Justice Story in his opinion for the court in Prigg

v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842), in the following words:

``Treaties made between the United States and foreign powers, often

contain special provisions, which do not execute themselves, but require

the interposition of Congress to carry them into effect, and Congress

has constantly, in such cases, legislated on the subject; yet, although

the power is given to the executive, with the consent of the senate, to

make treaties, the power is nowhere in positive terms conferred upon

Congress to make laws to carry the stipulations of treaties into effect.

It has been supposed to result from the duty of the national government

to fulfill all the obligations of treaties.'' Id., 619. Story was here

in quest of arguments to prove that Congress had power to enact a

fugitive slave law, which he based on its power ``to carry into effect

rights expressly given and duties expressly enjoined'' by the

Constitution. Id., 618-619. However, the treaty-making power is neither

a right nor a duty, but one of the powers ``vested by this Constitution

in the Government of the United States.'' Art. I, Sec. 8, cl. 18.

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The foremost example of this interpretation is Missouri v.

Holland.\322\ There, the United States and Great Britain had entered

into a treaty for the protection of migratory birds,\323\ and Congress

had enacted legislation pursuant to the treaty to effectuate it.\324\

The State objected that such regulation was reserved to the States by

the Tenth Amendment and that the statute infringed on this reservation,

pointing to lower court decisions voiding an earlier act not based on a

treaty.\325\ Noting that treaties ``are declared the supreme law of the

land,'' Justice Holmes for the Court said: ``If the treaty is valid

there can be no dispute about the validity of the statute under Article

I, Sec. 8, as a necessary and proper means to execute the powers of the

Government.''\326\ ``It is obvious,'' he continued, ``that there may be

matters of the sharpest exigency for the national well being that an act

of Congress could not deal with but that a treaty followed by such an

act could, and it is not lightly to be assumed that, in matters

requiring national action, `a power which must belong to and somewhere

reside in every civilized government' is not to be found.''\327\ Since

the treaty and thus the statute dealt with a matter of national and

international concern, the treaty was proper and the statute was one

``necessary and proper'' to effectuate the treaty.

 

\322\252 U.S. 416 (1920).

\323\39 Stat. 1702 (1916).

\324\40 Stat. 755 (1918).

\325\United States v. Shauver, 214 F. 154 (E.D.Ark. 1914);

United States v. McCullagh, 221 F. 288 (D.Kan. 1915). The Court did not

purport to decide whether those cases were correctly decided. Missouri

v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that

Congress' power under the commerce clause would be deemed more than

adequate but at that time a majority of the Court had a very restrictive

view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251

(1918).

\326\Missouri v. Holland, 252 U.S. 416, 432 (1920).

\327\Id., 433. The internal quotation is from Andrews v.

Andrews, 188 U.S. 14, 33 (1903).

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Constitutional Limitations on the Treaty Power

 

A question growing out of the discussion above is whether the

treaty power is bounded by constitutional limitations. By the supremacy

clause, both statutes and treaties ``are declared . . . to be the

supreme law of the land, and no superior efficacy is given to either

over the other.''\328\ As statutes may be held void because they

contravene the Constitution, it should follow that treaties may be held

void, the Constitution being superior to both. And indeed

 

[[Page 483]]

the Court has numerous times so stated.\329\ It does not appear that the

Court has ever held a treaty unconstitutional,\330\ although there are

examples in which decision was seemingly based on a reading compelled by

constitutional considerations.\331\ In fact, there would be little

argument with regard to the general point were it not for certain dicta

in Justice Holmes' opinion in Missouri v. Holland.\332\ ``Acts of

Congress,'' he said, ``are the supreme law of the land only when made in

pursuance of the Constitution, while treaties are declared to be so when

made under the authority of the United States. It is open to question

whether the authority of the United States means more than the formal

acts prescribed to make the convention.'' Although he immediately

followed this passage with a cautionary ``[w]e do not mean to imply that

there are no qualifications to the treaty-making power . . . ,''\333\

the Justice's language and the holding by which it appeared that the

reserved rights of the States could be invaded through the treaty power

led in the 1950s to an abortive effort to amend the Constitution to

restrict the treaty power.\334\

 

\328\Whitney v. Robertson, 124 U.S. 190, 194 (1888).

\329\``The treaty is . . . a law made by the proper authority,

and the courts of justice have no right to annul or disregard any of its

provisions, unless they violate the Constitution of the United States.''

Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853). ``It need hardly be

said that a treaty cannot change the Constitution or be held valid if it

be in violation of that instrument.'' The Cherokee Tobacco, 11 Wall. (78

U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267

(1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura

v. City of Seattle, 265 U.S. 332, 341 (1924).

\330\1 W. Willoughby, op. cit., n.294, 561; L. Henkin, op. cit.,

n.315, 137. In Power Authority of New York v. FPC, 247 F. 2d 538 (2d

Cir. 1957), a reservation attached by the Senate to a 1950 treaty with

Canada was held invalid. The court observed that the reservation was

properly not a part of the treaty but that if it were it would still be

void as an attempt to circumvent constitutional procedures for enacting

amendments to existing federal laws. The Supreme Court vacated the

judgment on mootness grounds. 355 U.S. 64 (1957). In United States v.

Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement

with Canada was held void as conflicting with existing legislation. The

Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296

(1955).

\331\Cf. City of New Orleans v. United States, 10 Pet. (35 U.S.)

662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).

\332\252 U.S. 416 (1920).

\333\Id., 433. Subsequently, he also observed: ``The treaty in

question does not contravene any prohibitory words to be found in the

Constitution.'' Ibid.

\334\The attempt, the so-called ``Bricker Amendment,'' was aimed

at the expansion into reserved state powers through treaties as well as

at executive agreements. The key provision read: ``A treaty shall become

effective as internal law in the United States only through legislation

which would be valid in the absence of treaty.'' S.J. Res. 43, 82d

Congress, 1st sess. (1953), Sec. 2. See also S.J. Res. 1, 84th Congress,

1st sess. (1955), Sec. 2. Extensive hearings developed the issues

thoroughly but not always clearly. Hearings on S.J. Res. 130, Before a

Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d sess.

(1952). Hearings on S.J. Res. 1 & 43, Before a Subcommittee of the

Senate Judiciary Committee, 83d Congress, 1st sess. (1953); Hearings on

S.J. Res. 1, Before a Subcommittee of the Senate Judiciary Committee,

84th Congress, 1st sess. (1955). See L. Henkin, op. cit., n.315, 383-

385.

 

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[[Page 484]]

 

Controversy over the Holmes language apparently led Justice

Black in Reid v. Covert\335\ to deny that the difference in language of

the supremacy clause with regard to statutes and with regard to treaties

was relevant to the status of treaties as inferior to the Constitution.

``There is nothing in this language which intimates that treaties do not

have to comply with the provisions of the Constitution. Nor is there

anything in the debates which accompanied the drafting and ratification

of the Constitution which even suggests such a result. These debates as

well as the history that surrounds the adoption of the treaty provision

in Article VI make it clear that the reason treaties were not limited to

those made in `pursuance' of the Constitution was so that agreements

made by the United States under the Articles of Confederation, including

the important treaties which concluded the Revolutionary War, would

remain in effect. It would be manifestly contrary to the objectives of

those who created the Constitution, as well as those who were

responsible for the Bill of Rights--let alone alien to our entire

constitutional history and tradition--to construe Article VI as

permitting the United States to exercise power under an international

agreement without observing constitutional prohibitions. In effect, such

construction would permit amendment of that document in a manner not

sanctioned by Article V.''\336\

 

\335\354 U.S. 1 (1957) (plurality opinion).

\336\Id., 16-17. For discussions of the issue, see American Law

Institute, op. cit., n.262, Sec. 302; Nowak & Rotunda, A Comment on the

Creation and Resolution of a ``Non-Problem:'' Dames & Moore v. Regan,

the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. Rev.

1129 (1982); L. Henkin, op. cit., n.315, 137-156.

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Establishment of the general principle, however, is but the

beginning; there is no readily agreed-upon standard for determining what

the limitations are. The most persistently urged proposition in

limitation has been that the treaty power must not invade the reserved

powers of the States. In view of the sweeping language of the supremacy

clause, it is hardly surprising that this argument has not

prevailed.\337\ Nevertheless, the issue, in the context of Congress'

power under the necessary and proper clause to effectuate a treaty

dealing with a subject arguably within the domain of the

 

[[Page 485]]

States, was presented as recently as 1920, when the Court upheld a

treaty and implementing statute providing for the protection of

migratory birds.\338\ ``The treaty in question does not contravene any

prohibitory words to be found in the Constitution. The only question is

whether it is forbidden by some invisible radiation from the general

terms of the Tenth Amendment.''\339\ The gist of the holding followed.

``Here a national interest of very nearly the first magnitude is

involved. It can be protected only by national action in concert with

that of another power. The subject-matter is only transitorily within

the State and has no permanent habitat therein. But for the treaty and

the statute there soon might be no birds for any powers to deal with. We

see nothing in the Constitution that compels the Government to sit by

while a food supply is cut off and the protectors of our forests and our

crops are destroyed.''\340\

 

\337\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Fairfax's

Devisee v. Hunter's Lessee, 7 Cr. (11 U.S.) 603 (1813); Chirac v.

Chirac, 2 Wheat. (15 U.S.) 259 (1817); Hauenstein v. Lynham, 100 U.S.

483 (1880). Jefferson, in his list of exceptions to the treaty power,

thought the Constitution ``must have meant to except out of these the

rights reserved to the States, for surely the President and Senate

cannot do by treaty what the whole Government is interdicted from doing

in any way.'' Jefferson's Manual of Parliamentary Practice, Sec. 594,

reprinted in The Rules and Manual of the House of Representatives, H.

Doc. 102-405, 102d Congress, 2d sess. (1993), 298-299. But this view has

always been the minority one. Q. Wright, op. cit., n.302, 92 n.97. The

nearest the Court ever came to supporting this argument appears to be

Frederickson v. Louisiana, 23 How. (64 U.S.) 445, 448 (1860).

\338\Missouri v. Holland, 252 U.S. 416 (1920).

\339\Id., 433.

\340\Id., 435.

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The doctrine which seems deducible from this case and others is

``that in all that properly relates to matters of international rights

and obligations, whether these rights and obligations rest upon the

general principles of international law or have been conventionally

created by specific treaties, the United States possesses all the powers

of a constitutionally centralized sovereign State; and, therefore, that

when the necessity from the international standpoint arises the treaty

power may be exercised, even though thereby the rights ordinarily

reserved to the States are invaded.''\341\ It is not, in other words,

the treaty power which enlarges either the federal power or the

congressional power but the international character of the interest

concerned which might be acted upon.

 

\341\1 W. Willoughby, op. cit., n.294, 569. And see L. Henkin,

op. cit., n.315, 143-148; Restatement, Foreign Relations, op. cit., 262,

Sec. 302, Comment d, & Reporters' Note 3, pp. 154-157.

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Dicta in some of the cases lend support to the argument that the

treaty power is limited by the delegation of powers among the branches

of the National Government\342\ and especially by the delegated powers

of Congress, although it is not clear what the limitation means. If it

is meant that no international agreement could be constitutionally

entered into by the United States within the sphere of such powers, the

practice from the beginning has been to

 

[[Page 486]]

the contrary;\343\ if it is meant that treaty provisions dealing with

matters delegated to Congress must, in order to become the law of the

land, receive the assent of Congress through implementing legislation,

it states not a limitation on the power of making treaties as

international conventions but rather a necessary procedure before

certain conventions are cognizable by the courts in the enforcement of

rights under them.

 

\342\E.g., Geofroy v. Riggs, 133 U.S. 258, 266-267 (1890);

Holden v. Joy, 17 Wall. (84 U.S.) 211, 243 (1872). Jefferson listed as

an exception from the treaty power ``those subjects of legislation in

which [the Constitution] gave a participation to the House of

Representatives'' although he admitted ``that it would leave very little

matter for the treaty power to work on.'' Jefferson's Manual, op. cit.,

n.337, 299.

\343\Q. Wright, op. cit., n.302, 101-103. See also, L. Henkin,

op. cit., n.315, 148-151.

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It has also been suggested that the prohibitions against

governmental action contained in the Constitution, the Bill of Rights

particularly, limit the exercise of the treaty power. No doubt this is

true, though again there are no cases which so hold.\344\

 

\344\Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v.

Riggs, 133 U.S. 258, 267 (1890).

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One other limitation of sorts may be contained in the language

of certain court decisions which seem to say that only matters of

``international concern'' may be the subject of treaty

negotiations.\345\ While this may appear to be a limitation, it does not

take account of the elasticity of the concept of ``international

concern'' by which the subject matter of treaties has constantly

expanded over the years.\346\ At best, any attempted resolution of the

issue of limitations must be an uneasy one.\347\

 

\345\``[I]t must be assumed that the framers of the Constitution

intended that [the treaty power] should extend to all those objects

which in the intercourse of nations had usually been regarded as the

proper subjects of negotiation and treaty. . . .'' Holden v. Joy 17

Wall. (84 U.S.) 211, 243 (1872). With the exceptions noted, ``it 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.'' Geofroy v. Riggs, 133 U.S. 258, 267 (1890). ``The

treatymaking power of the United States . . . does extend to all proper

subjects of negotiation between our government and other nations.''

Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).

\346\Cf. L. Henkin, op. cit., n.315, 151-156.

\347\Other reservations which have been expressed may be briefly

noted. It has been contended that the territory of a State could not be

ceded without such State's consent. Geofroy v. Riggs, 133 U.S. 258, 267

(1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541 (1885).

Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see

S. Crandall, op. cit., n.264, 220-229; 1 W. Willoughby, op. cit., 294,

572-576.

A further contention is that while foreign territory can be

annexed to the United States by the treaty power, it could not be

incorporated with the United States except with the consent of Congress.

Downes v. Bidwell, 182 U.S. 244, 310-344 (1901) (four Justices

dissenting). This argument appears to be a variation of the one in

regard to the correct procedure to give domestic effect to treaties.

Another argument grew out the XII Hague Convention of 1907,

proposing an International Prize Court with appellate jurisdiction from

national courts in prize cases. President Taft objected that no treaty

could transfer to a tribunal not known to the Constitution any part of

the judicial power of the United States and a compromise was arranged.

Q. Wright, op. cit., n.302, 117-118; H. Rept. No. 1569, 68th Congress,

2d sess. (1925).

 

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[[Page 487]]

 

In brief, the fact that all the foreign relations power is

vested in the National Government and that no formal restriction is

imposed on the treaty-making power in the international context\348\

leaves little room for the notion of a limited treaty-making power with

regard to the reserved rights of the States or in regard to the choice

of matters concerning which the Federal Government may treat with other

nations; protected individual rights appear to be sheltered by specific

constitutional guarantees from the domestic effects of treaties, and the

separation of powers at the federal level may require legislative action

to give municipal effect to international agreements.

 

\348\Cf. United States v. Curtiss-Wright Export Corp., 299 U.S.

304, 318 (1936); Holmes v. Jenison, 14 Pet. (39 U.S.) 540, 575-576

(1840).

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Interpretation and Termination of Treaties as International

Compacts

 

The repeal by Congress of the ``self-executing'' clauses of a

treaty as ``law of the land'' does not of itself terminate the treaty as

an international contract, although it may very well provoke the other

party to the treaty to do so. Hence, the questions arise where the

Constitution lodges this power and where it lodges the power to

interpret the contractual provisions of treaties. The first case of

outright abrogation of a treaty by the United States occurred in 1798,

when Congress by the Act of July 7 of that year, pronounced the United

States freed and exonerated from the stipulations of the Treaties of

1778 with France.\349\ This act was followed two days later by one

authorizing limited hostilities against the same country; in the case of

Bas v. Tingy,\350\ the Supreme Court treated the act of abrogation as

simply one of a bundle of acts declaring ``public war'' upon the French

Republic.

 

\349\1 Stat. 578 (1798).

\350\4 Dall. (4 U. S.) 37 (1800). See also Gray v. United

States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of

this situation.

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Termination of Treaties by Notice.--Typically, a treaty provides

for its termination by notice of one of the parties, usually after a

prescribed time from the date of notice. Of course, treaties may also be

terminated by agreement of the parties, or by breach by one of the

parties, or by some other means. But it is in the instance of

termination by notice that the issue has frequently been raised: where

in the Government of the United States does the Constitution lodge the

power to unmake treaties?\351\ Reasonable

 

[[Page 488]]

arguments may be made locating the power in the President alone, in the

President-and-Senate, or in the Congress. Presidents generally have

asserted the foreign relations power reposed in them under Article II

and the inherent powers argument made in Curtiss-Wright. Because the

Constitution requires the consent of the Senate for making a treaty, one

can logically argue that its consent is as well required for terminating

it. Finally, because treaties are, like statutes, the supreme law of the

land, it may well be argued that, again like statutes, they may be

undone only through law-making by the entire Congress; additionally,

since Congress may be required to implement treaties and may displace

them through legislation, this argument is reenforced.

 

\351\The matter was most extensively canvassed in the debate

with respect to President Carter's termination of the Mutual Defense

Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the

various views argued in Treaty Termination, Hearings before the Senate

Committee on Foreign Relations, 96th Congress, 1st sess. (1979). On the

issue generally, see Restatement, Foreign Relations, op. cit., n.262,

Sec. 339; CRS Study, 158-167; L. Henkin, op. cit., n.315, 167-171;

Bestor, Respective Roles of Senate and President in the Making and

Abrogation of Treaties--The Original Intent of the Framers of the

Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger,

The President's Unilateral Termination of the Taiwan Treaty, 75 Nw. U.

L. Rev. 577 (1980).

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Definitive resolution of this argument appears remotely

possible. Historical practice provides support for all three arguments,

and the judicial branch seems unlikely to essay any answer.

 

While abrogation of the French treaty, mentioned above, is

apparently the only example of termination by Congress through a public

law, many instances may be cited of congressional actions mandating

terminations by notice of the President or changing the legal

environment so that the President is required to terminate. The initial

precedent in the instance of termination by notice pursuant to

congressional action appears to have occurred in 1846,\352\ when by

joint resolution Congress authorized the President at his discretion to

notify the British government of the abrogation of the Convention of

August 6, 1827, relative to the joint occupation of the Oregon

Territory. As the President himself had requested the resolution, the

episode is often cited to support the theory that international

conventions to which the United States is a party, even those terminable

on notice, are terminable only through action of Congress.\353\

Subsequently, Congress has often passed resolutions denouncing treaties

or treaty provisions, which by their own terms were terminable on

notice, and Presidents have usually, though not invariably, carried out

such resolutions.\354\ By the La Follette-

 

[[Page 489]]

Furuseth Seaman's Act,\355\ President Wilson was directed, ``within

ninety days after the passage of the act, to give notice to foreign

governments that so much of any treaties as might be in conflict with

the provisions of the act would terminate on the expiration of the

periods of notice provided for in such treaties,'' and the required

notice was given.\356\ When, however, by section 34 of the Jones

Merchant Marine Act of 1920, the same President was authorized and

directed within ninety days to give notice to the other parties to

certain treaties, with which the Act was not in conflict but which might

restrict Congress in the future from enacting discriminatory tonnage

duties, President Wilson refused to comply, asserting that he ``did not

deem the direction contained in section 34 . . . an exercise of any

constitutional power possessed by Congress.''\357\ The same attitude

toward section 34 was continued by Presidents Harding and Coolidge.\358\

 

\352\Compare the different views of the 1846 action in Treaty

Termination, Hearings before the Senate Committee on Foreign Relations,

96th Congress, 1st sess. (1979), 160-162 (memorandum of Hon. Herbert

Hansell, Legal Advisor, Department of State), and in Taiwan, Hearings

before the Senate Committee on Foreign Relations, 96th Congress, 1st

sess. (1979), 300 (memorandum of Senator Goldwater).

\353\S. Crandall, op. cit., n.264, 458-459.

\354\Id., 459-462; Q. Wright, op. cit., n.302, 258.

\355\38 Stat. 1164 (1915).

\356\S. Crandall, op. cit., n.264, 460. See Van der Weyde v.

Ocean Transp. Co., 297 U. S. 114 (1936).

\357\41 Stat. 1007. See Reeves, The Jones Act and the

Denunciation of Treaties, 15 Am. J. Int'l. L. 33 (1921). In 1879,

Congress passed a resolution requiring the President to abrogate a

treaty with China, but President Hayes vetoed it, partly on the ground

that Congress as an entity had no role to play in ending treaties, only

the President with the advice and consent of the Senate. 9 J.

Richardson, op. cit., n.42, 4466, 4470-4471. For the views of President

Taft on the matter in context, see W. Taft, The Presidency, Its Duties,

Its Powers, Its Opportunities and Its Limitations (New York: 1916), 112-

113.

\358\Since this time, very few instances appear in which

Congress has requested or directed termination by notice, but they have

resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination

of most-favored-nation provisions with certain Communist countries in

commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of

treaty rights of extraterritoriality in Morroco). The most recent

example appears to be Sec. 313 of the Anti-Apartheid Act of 1986, which

required the Secretary of State to terminate immediately, in accordance

with its terms, the tax treaty and protocol with South Africa that had

been concluded on Decemberr 13, 1946. P. L. 99-440, 100 Stat. 3515, 22

U.S.C. Sec. 5063.

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Very few precedents exist in which the President terminated a

treaty after obtaining the approval of the Senate alone. The first

occurred in 1854-1855, when President Pierce requested and received

Senate approval to terminate a treaty with Denmark.\359\ When the

validity of this action was questioned in the Senate, the Committee on

Foreign Relations reported that the procedure was correct, that prior

full-Congress actions were incorrect, and that the right to terminate

resides in the treaty-making authorities, the President and the

Senate.\360\

 

\359\5 J. Richardson, op. cit., n.42, 279, 334.

\360\S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7. The

other instance was President Wilson's request, which the Senate

endorsed, for termination of the International Sanitary Convention of

1903. See 61 Cong. Rec. 1793-1794 (1921). See CRS Study, op. cit.,

n.262, 161-162.

 

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[[Page 490]]

 

Examples of treaty terminations in which the President acted

alone are much disputed with respect both to facts and to the underlying

legal circumstances.\361\ Apparently, President Lincoln was the first to

give notice of termination in the absence of prior congressional

authorization or direction, and Congress shortly thereafter by joint

resolution ratified his action.\362\ The first such action by the

President, with no such subsequent congressional action, appears to be

that of President McKinley in 1899, in terminating an 1850 treaty with

Switzerland, but the action may be explainable as the treaty being

inconsistent with a subsequently enacted law.\363\ Other such

renunciations by the President acting on his own have been similarly

explained, and similarly the explanations have been controverted. While

the Department of State, in setting forth legal justification for

President Carter's notice of termination of the treaty with Taiwan,

cited many examples of the President acting alone, many of these are

ambiguous and may be explained away by, i.e., conflicts with later

statutes, changed circumstances, or the like.\364\

 

\361\Compare, e.g., Treaty Termination, Hearings before the

Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979),

156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department

of State), with Taiwan, Hearings before the Senate Committee on Foreign

Relations, 96th Congress, 1st sess. (1979), 300-307 (memorandum of

Senator Goldwater). See CRS Study, op. cit., n.262, 164-166.

\362\13 Stat. 568 (1865).

\363\The treaty, see 11 C. Bevans, Treaties and Other

International Agreements of the United States of America (Washington:

1970), 894, was probably at odds with the Tariff Act of 1897. 30 Stat.

151.

\364\Compare the views expressed in the Hansell and Goldwater

memoranda, op. cit., n.361. For expressions of views preceding the

immediate controversy, see, e.g., Riesenfeld, The Power of Congress and

the President in International Relations, 25 Calif. L. Rev. 643, 658-665

(1937); Nelson, The Termination of Treaties and Executive Agreements by

the United States, 42 Minn. L. Rev. 879 (1958).

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No such ambiguity accompanied President Carter's action on the

Taiwan treaty,\365\ and a somewhat lengthy Senate debate was provoked.

In the end, the Senate on a preliminary vote approved a ``sense of the

Senate'' resolution claiming for itself a consenting role in the

termination of treaties, but no final vote was ever taken and the Senate

thus did not place itself in conflict with the President.\366\ However,

several Members of Congress went to court to contest the termination,

apparently the first time a judicial resolu

 

[[Page 491]]

tion of the question had been sought. A divided Court of Appeals, on the

merits, held that presidential action was sufficient by itself to

terminate treaties, but the Supreme Court, no majority agreeing on a

common ground, vacated that decision and instructed the trial court to

dismiss the suit.\367\ While no opinion of the Court bars future

litigation, it appears that the political question doctrine or some

other rule of judicial restraint will leave such disputes to the

contending forces of the political branches.\368\

 

\365\Note that the President terminated the treaty in the face

of an expression of the sense of Congress that prior consultation

between President and Congress should occur. 92 Stat. 730, 746 (1978).

\366\Originally, S. Res. 15 had disapproved presidential action

alone, but it was amended and reported by the Foreign Relations

Committee to recognize at least 14 bases of presidential termination. S.

Rept. No. 119, 96th Congress, 1st sess. (1979). In turn, this resolution

was amended to state the described sense of the Senate view, but the

matter was never brought to final action. See 125 Cong. Rec. 13672,

13696, 13711, 15209, 15859 (1979).

\367\Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc),

vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case

nonjusticiable because of the political question doctrine, id., 1002,

but one other Justice in the majority and one in dissent rejected this

analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The

remaining three Justices were silent on the doctrine.

\368\Cf. Baker v. Carr, 369 U.S. 186, 211-213, 217 (1962).

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Determination Whether a Treaty Has Lapsed.--At the same time,

there is clear judicial recognition that the President may without

consulting Congress validly determine the question whether specific

treaty provisions have lapsed. The following passage from Justice

Lurton's opinion in Charlton v. Kelly\369\ is pertinent: ``If the

attitude of Italy was, as contended, a violation of the obligation of

the treaty, which, in international law, would have justified the United

States in denouncing the treaty as no longer obligatory, it did not

automatically have that effect. If the United States elected not to

declare its abrogation, or come to a rupture, the treaty would remain in

force. It was only voidable, not void; and if the United States should

prefer, it might waive any breach which in its judgment had occurred and

conform to its own obligation as if there had been no such breach. . . .

That the political branch of the Government recognizes the treaty

obligation as still existing is evidenced by its action in this case.

. . . The executive department having thus elected to waive any right to

free itself from the obligation to deliver up its own citizens, it is

the plain duty of this court to recognize the obligation to surrender

the appellant as one imposed by the treaty as the supreme law of the

land as affording authority for the warrant of extradition.''\370\ So

also it is primarily for the political departments to determine whether

certain provisions of a treaty have survived a war in which the other

contracting state ceased to exist as a member of the international

community.\371\

 

\369\229 U.S. 447 (1913).

\370\Id., 473-476.

\371\Clark v. Allen, 331 U.S. 503 (1947).

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Status of a Treaty a Political Question.--At any rate, it is

clear that many questions which arise concerning a treaty are of a

political nature and will not be decided by the courts. In the

 

[[Page 492]]

words of Justice Curtis in Taylor v. Morton:\372\ It is not ``a judicial

question, whether a treaty with a foreign sovereign has been violated by

him; whether the consideration of a particular stipulation in a treaty,

has been voluntarily withdrawn by one party, so that it is no longer

obligatory on the other; whether the views and acts of a foreign

sovereign, manifested through his representative have given just

occasion to the political departments of our government to withhold the

execution of a promise contained in a treaty, or to act in direct

contravention of such promise. . . . These powers have not been confided

by the people to the judiciary, which has no suitable means to exercise

them; but to the executive and the legislative departments of our

government. The y belong to diplomacy and legislation, and not to the

administration of existing laws and it necessarily follows that if they

are denied to Congress and the Executive, in the exercise of their

legislative power, they can be found nowhere, in our system of

government.'' Chief Justice Marshall's language in Foster v.

Neilson\373\ is to the same effect.

 

\372\23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).

\373\2 Pet. (27 U.S.) 253, 309 (1829). Baker v. Carr, 369 U.S.

186 (1962), qualifies this certainty considerably, and Goldwater v.

Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin,

op. cit., n.315, 208-216; Restatement, Foreign Relations, op. cit.,

n.262, Sec. 326.

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Indian Treaties

 

In the early cases of Cherokee Nation v. Georgia,\374\ and

Worcester v. Georgia,\375\ the Court, speaking by Chief Justice

Marshall, held, first, that the Cherokee Nation was not a sovereign

state within the meaning of that clause of the Constitution which

extends the judicial power of the United States to controversies

``between a State or the citizens thereof and foreign states, citizens

or subjects.'' Second, it held: ``The Constitution, by declaring

treaties already made, as well as those to be made, to be the supreme

law of the land, had adopted and sanctioned the previous treaties with

the Indian nations, and consequently admits their rank among those

powers who are capable of making treaties. The words `treaty' and

`nation' are words of our own language, selected in our diplomatic and

legislative proceedings, by ourselves, having each a definite and well

understood meaning. We have applied them to Indians, as we have applied

them to the other nations of the earth. They are applied to all in the

same sense.''\376\

 

\374\5 Pet. (30 U.S.) 1 (1831).

\375\6 Pet. (31 U.S.) 515 (1832).

\376\Id., 558.

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Later cases established that the power to make treaties with the

Indian tribes was coextensive with the power to make treaties

 

[[Page 493]]

with foreign nations,\377\ that the States were incompetent to interfere

with rights created by such treaties,\378\ that as long as the United

States recognized the national character of a tribe, its members were

under the protection of treaties and of the laws of Congress and their

property immune from taxation by a State,\379\ that a stipulation in an

Indian treaty that laws forbidding the introduction, of liquors into

Indian territory was operative without legislation, and binding on the

courts although the territory was within an organized county of a

State,\380\ and that an act of Congress contrary to a prior Indian

treaty repealed it.\381\

 

\377\Holden v. Joy, 17 Wall. (84 U.S.) 211, 242 (1872); United

States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick

v. United States, 208 U.S. 340, 355-356 (1908).

\378\The New York Indians, 5 Wall. (72 U.S.) 761 (1867).

\379\The Kansas Indians, 5 Wall. (72 U.S.) 737, 757 (1867).

\380\United States v. Forty-Three Gallons of Whiskey, 93 U.S.

188, 196 (1876).

\381\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871). See

also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169

U.S. 264, 270 (1898).

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Present Status of Indian Treaties.--Today, the subject of Indian

treaties is a closed account in the constitutional law ledger. By a

rider inserted in the Indian Appropriation Act of March 3, 1871, it was

provided ``That hereafter no 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: Provided, further, that nothing herein contained

shall be construed to invalidate or impair the obligation of any treaty

heretofore lawfully made and ratified with any such Indian nation or

tribe.''\382\ Subsequently, the power of Congress to withdraw or modify

tribal rights previously granted by treaty has been invariably upheld.

Thus the admission of Wyoming as a State was found to abrogate, pro

tanto, a treaty guaranteeing certain Indians the right to hunt on

unoccupied lands of the United States so long as game may be found

thereon and to bring hunting by the Indians within the police power of

the State.\383\ Similarly, statutes modifying rights of members in

tribal lands,\384\ granting a right of way for a railroad through lands

ceded by treaty to an Indian tribe,\385\ or extending the application of

revenue laws respecting liquor and tobacco over Indian territories,

despite an earlier treaty exemption,\386\ have been sustained.

 

\382\16 Stat. 566; Rev. Stat. Sec. 2079, now contained in 25

U.S.C. Sec. 71.

\383\Ward v. Race Horse, 163 U.S. 504 (1896).

\384\Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

\385\Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641

(1890).

\386\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871).

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When, on the other hand, definite property rights have been

conferred upon individual Native Americans, whether by treaty or under

an act of Congress, they are protected by the Constitution

 

[[Page 494]]

to the same extent and in the same way as the private rights of other

residents or citizens of the United States. Hence it was held that

certain Indian allottees under an agreement according to which, in part

consideration of their relinquishment of all their claim to tribal

property, they were to receive in severalty allotments of lands which

were to be nontaxable for a specified period, acquired vested rights of

exemption from State taxation which were protected by the Fifth

Amendment against abrogation by Congress.\387\

 

\387\Choate v. Trapp, 224 U.S. 665, 677-678 (1912); Jones v.

Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987)

(section of law providing for escheat to tribe of fractionated interests

in land representing less than 2% of a tract's total acreage violates

Fifth Amendment's taking clause by completely abrogating rights of

intestacy and devise).

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A regular staple of each Term's docket of the Court is one or

two cases calling for an interpretation of the rights of Native

Americans under some treaty arrangement vis-a-vis the Federal Government

or the States. Thus, though no treaties have been negotiated for decades

and none presumably ever will again, litigation concerning old treaties

seemingly will go on.

 

INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

 

The capacity of the United States to enter into agreements with

other nations is not exhausted in the treaty-making power. The

Constitution recognizes a distinction between ``treaties'' and

``agreements'' or ``compacts'' but does not indicate what the difference

is.\388\ The differences, which once may have been clearer, have been

seriously blurred in practice within recent decades. Once a stepchild in

the family in which treaties were the preferred offspring, the executive

agreement has surpassed in number and perhaps in international influence

the treaty formally signed, submitted for ratification to the Senate,

and proclaimed upon ratification.

 

\388\Compare Article II, Sec. 2, cl. 2, and Article VI, cl. 2,

with Article I, 10, cls. 1 and 3. Cf. Holmes v. Jennison, 14 Pet. (39

U.S.) 540, 570-572 (1840). And note the discussion in Weinberger v.

Rossi, 456 U.S. 25, 28-32 (1982).

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During the first half-century of its independence, the United

States was party to sixty treaties but to only twenty-seven published

executive agreements. By the beginning of World War II, there had been

concluded approximately 800 treaties and 1,200 executive agreements. In

the period 1940-1989, the Nation entered into 759 treaties and into

13,016 published executive agreements. Cumulatively, in 1989, the United

states was a party to 890 treaties and 5,117 executive agreements. To

phrase it comparatively, in the first 50 years of its history, the

United States concluded twice

 

[[Page 495]]

as many treaties as executive agreements. In the 50-year period from

1839 to 1889, a few more executive agreements than treaties were entered

into. From 1889 to 1939, almost twice as many executive agreements as

treaties were concluded. In the period since 1939, executive agreements

have comprised more than 90% of the international agreements

concluded.\389\

 

\389\CRS Study, op. cit., n.262, xxxiv-xxxv, 13-16. Not all such

agreements, of course, are published, either because of national-

security/secrecy considerations or because the subject matter is

trivial. In a 1953 hearing exchange, Secretary of State Dulles estimated

that about 10,000 executive agreements had been entered into in

connection with the NATO treaty. ``Every time we open a new privy, we

have to have an executive agreement.'' Hearing on S.J. Res. 1 and S.J.

Res. 43, Before a Subcommittee of the Senate Judiciary Committee, 83d

Congress, 1st sess. (1953), 877.

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One must, of course, interpret the raw figures carefully. Only a

very small minority of all the executive agreements entered into were

based solely on the powers of the President as Commander-in-Chief and

organ of foreign relations; the remainder were authorized in advance by

Congress by statute or by treaty provisions ratified by the Senate.\390\

Thus, consideration of the constitutional significance of executive

agreements must begin with a differentiation among the kinds of

agreements which are classed under this single heading.\391\

 

\390\One authority concluded that of the executive agreements

entered into between 1938 and 1957, only 5.9 percent were based

exclusively on the President's constitutional authority. McLaughlin, The

Scope of the Treaty Power in the United States--II, 43 Minn. L. Rev.

651, 721 (1959). Another, somewhat overlapping study found that in the

period 1946-1972, 88.3% of executive agreements were based at least in

part on statutory authority; 6.2% were based on treaties, and 5.5% were

based solely on executive authority. International Agreements: An

Analysis of Executive Regulations and Practices, A Study Prepared for

the Senate Committee on Foreign Relations by the Congressional Research

Service, 95th Cong., 1st sess. (Comm. Print) (1977), 22.

\391\``[T]he distinction between so-called `executive

agreements' and `treaties' is purely a constitutional one and has no

international significance.'' Harvard Research in International Law,

Draft Convention on the Law of Treaties, 29 Amer. J. Int. L. 697 (Supp.)

(1935). See E. Byrd, op. cit., n.292, 148-151. Many scholars have

aggressively promoted the use of executive agreements, in contrast to

treaties, as a means of enhancing the role of the United States,

especially the role of the President, in the international system. See

McDougal & Lans, Treaties and Congressional-Executive or Presidential

Agreements: Interchangeable Instruments of National Policy (Pts. I &

II), 54 Yale L. J. 181, 534 (1945).

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Executive Agreements by Authorization of Congress

 

Congress early authorized the entry into negotiation and

agreement of officers of the executive branch with foreign governments,

authorizing the borrowing of money from foreign countries\392\ and

appropriating money to pay off the government of Al

 

[[Page 496]]

giers to prevent pirate attacks on United States shipping.\393\ Perhaps

the first formal authorization in advance of an executive agreement was

enactment of a statute that permitted the Postmaster General to ``make

arrangements with the Postmasters in any foreign country for the

reciprocal receipt and delivery of letters and packets, through the post

offices.''\394\ Congress has also approved, usually by resolution, other

executive agreements, such as the annexing of Texas and Hawaii and the

acquisition of Samoa.\395\ A prolific source of executive agreements has

been the authorization of reciprocal arrangements between the United

States and other countries for the securing of protection for patents,

copyrights, and trademarks.\396\

 

\392\1 Stat. 138 (1790). See E. Byrd, op. cit., n.292, 53 n.146.

\393\W. McClure, International Executive Agreements (New York:

1941), 41.

\394\Id., 38-40. The statute was 1 Stat. 232, 239, 26 (1792).

\395\Id., 62-70.

\396\Id., 78-81; S. Crandall, op. cit., n.264, 127-131; see CRS

Study, op. cit., n.262, 52-55.

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Reciprocal Trade Agreements.--But the most copious source of

executive agreements has been legislation which provided authority for

the entering into of reciprocal trade agreements with other

nations.\397\ Such agreements in the form of treaties providing for the

reciprocal reduction of duties subject to implementation by Congress

were frequently entered into,\398\ but beginning with the Tariff Act of

1890\399\ Congress began to insert provisions authorizing the Executive

to bargain over reciprocity with no necessity of subsequent legislative

action. The authority was widened in successive acts.\400\ Then, in the

Reciprocal Trade Agreements Act of 1934,\401\ Congress authorized the

President to enter into agreements with other nations for reductions of

tariffs and other impediments to international trade and to put the

reductions into effect through proclamation.\402\

 

\397\Id., 121-127; W. McClure, op. cit., n.393, 83-92, 173-189.

\398\Id., 8, 59-60.

\399\Sec. 3, 26 Stat. 567, 612.

\400\Tariff Act of 1897, Sec. 3, 30 Stat. 15, 203; Tariff Act of

1909, 36 Stat. 11, 82.

\401\48 Stat. 943, Sec. 350(a), 19 U.S.C. Sec. Sec. 1351-1354.

\402\See the continued expansion of the authority. Trade

Expansion Act of 1962, 76 Stat. 872, Sec. 201, 19 U.S.C. Sec. 1821;

Trade Act of 1974, 88 Stat. 1982, as amended, 19 U.S.C. Sec. Sec. 2111,

2115, 2131(b), 2435. Congress has, with respect to the authorization to

the President to negotiate multilateral trade agreements under the

auspices of GATT, constrained itself in considering implementing

legislation, creating a ``fast-track'' procedure under which legislation

is brought up under a tight timetable and without the possibility of

amendment. 19 U.S.C. Sec. Sec. 2191-2194.

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The Constitutionality of Trade Agreements.--In Field v.

Clark,\403\ this type of legislation was sustained against the objection

that it attempted an unconstitutional delegation ``of both legis

 

[[Page 497]]

lative and treaty-making powers.'' The Court met the first objection

with an extensive review of similar legislation from the inauguration of

government under the Constitution. The second objection it met with a

curt rejection: ``What has been said is equally applicable to the

objection that the third section of the act invests the President with

treaty-making power. The Court is of opinion that the third section of

the act of October 1, 1890, is not liable to the objection that it

transfers legislative and treaty-making power to the President.''\404\

Although two Justices disagreed, the question has never been revived.

However, in B. Altman & Co. v. United States,\405\ decided twenty years

later, a collateral question was passed upon. This was whether an act of

Congress which gave the federal circuit courts of appeal jurisdiction of

cases in which ``the validity or construction of any treaty . . . was

drawn in question'' embraced a case involving a trade agreement which

had been made under the sanction of Tariff Act of 1897. Said the Court:

``While it may be true that this commercial agreement, made under

authority of the Tariff Act of 1897, Sec. 3, was not a treaty possessing

the dignity of one requiring ratification by the Senate of the United

States, it was an international compact, negotiated between the

representatives of two sovereign nations and made in the name and on

behalf of the contracting countries, and dealing with important

commercial relations between the two countries, and was proclaimed by

the President. If not technically a treaty requiring ratification,

nevertheless, it was a compact authorized by the Congress of the United

States, negotiated and proclaimed under the authority of its President.

We think such a compact is a treaty under the Circuit Court of Appeals

Act, and, where its construction is directly involved, as it is here,

there is a right of review by direct appeal to this court.''\406\

 

\403\143 U.S. 649 (1892).

\404\Id., 694. See also Dames & Moore v. Regan, 453 U.S. 654

(1981), in which the Court sustained a series of implementing actions by

the President pursuant to executive agreements with Iran in order to

settle the hostage crisis. The Court found that Congress had delegated

to the President certain economic powers underlying the agreements and

that his suspension of claims powers had been implicitly ratified over

time by Congress' failure to set aside the asserted power. Also see

Weinberger v. Rossi, 456 U.S. 25, 29-30 n. 6 (1982).

\405\224 U.S. 583 (1912).

\406\Id., 601.

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The Lend-Lease Act.--The most extensive delegation of authority

ever made by Congress to the President to enter into executive

agreements occurred within the field of the cognate powers of the two

departments, the field of foreign relations, and took place at a time

when war appeared to be in the offing and was in fact only a few months

away. The legislation referred to is the Lend-

 

[[Page 498]]

Lease Act of March 11, 1941,\407\ by which the President was empowered

for something over two years--and subsequently for additional periods

whenever he deemed it in the interest of the national defense to do so--

to authorize ``the Secretary of War, the Secretary of the Navy, or the

head of any other department or agency of the Government,'' to

manufacture in the government arsenals, factories, and shipyards, or

``otherwise procure,'' to the extent that available funds made possible,

``defense articles''--later amended to include foodstuffs and industrial

products--and ``sell, transfer title to, exchange, lease, lend, or

otherwise dispose of,'' the same to the ``government of any country

whose defense the President deems vital to the defense of the United

States,'' and on any terms that he ``deems satisfactory.'' Under this

authorization the United States entered into Mutual Aid Agreements

whereby the Government furnished its allies in World War II forty

billions of dollars worth of munitions of war and other supplies.

 

\407\55 Stat. 31.

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International Organizations.--Overlapping of the treaty-making

power through congressional-executive cooperation in international

agreements is also demonstrated by the use of resolutions approving the

United States joining of international organizations\408\ and

participating in international conventions.\409\

 

\408\E.g., 48 Stat. 1182 (1934), authorizing the President to

accept membership for the United States in the International Labor

Organization.

\409\See E. Corwin, op. cit., n.44, 216.

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Executive Agreements Authorized by Treaties

 

Arbitration Agreements.--In 1904-1905, Secretary of State John

Hay negotiated a series of treaties providing for the general

arbitration of international disputes. Article II of the treaty with

Great Britain, for example, provided as follows: ``In each individual

case the High Contracting Parties, before appealing to the Permanent

Court of Arbitration, shall conclude a special Agreement defining

clearly the matter in dispute and the scope of the powers of the

Arbitrators, and fixing the periods for the formation of the Arbitral

Tribunal and the several stages of the procedure.''\410\ The Senate

approved the British treaty by the constitutional majority having,

however, first amended it by substituting the word ``treaty'' for

``agreement.'' President Theodore Roosevelt, characterizing the

``ratification'' as equivalent to rejection, sent the treaties to repose

in the archives. ``As a matter of historical practice,'' Dr. McClure

comments, ``the compromis under which disputes have been arbitrated

include both treaties and executive agreements in goodly

 

[[Page 499]]

numbers,''\411\ a statement supported by both Willoughby and Moore.\412\

 

\410\W. McClure, op. cit., n.393, 13-14.

\411\Id., 14.

\412\1 W. Willoughby, op. cit., n.294, 543.

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Agreements Under the United Nations Charter.--Article 43 of the

United Nations Charter provides: ``1. All Members of the United Nations,

in order to contribute to the maintenance of international peace and

security, undertake to make available to the Security Council, on its

call and in accordance with a special agreement or agreements, armed

forces, assistance, and facilities, including rights of passage,

necessary for the purpose of maintaining international peace and

security. 2. Such agreement or agreements shall govern the numbers and

types of forces, their degree of readiness and general location, and the

nature of the facilities and assistance to be provided. 3. The agreement

or agreements shall be negotiated as soon as possible on the initiative

of the S