Article II, Section 2, 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 Courts of Law, or in the Heads of Departments.
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. 1 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 the Court has numerous times so stated. 2 It does not appear that the Court has ever held a treaty unconstitutional, 3 although there are cases in which the decision seemed to be compelled by constitutional considerations. 4 In fact, there would be little argument with regard to the general point were it not for dicta in Justice Holmes’ opinion in Missouri v. Holland. 5
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 . . . , 6 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. 7
Controversy over Holmes' language apparently led Justice Black in Reid v. Covert 8 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. 9
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. 10 Nevertheless, the issue, in the context of Congress’s power under the Necessary and Proper Clause to effectuate a treaty dealing with a subject arguably within the domain of the states, was presented as recently as 1920, when the Court upheld a treaty and implementing statute providing for the protection of migratory birds. 11
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. 12 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. 13
The doctrine that seems to follow 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. 14 It is not, in other words, the treaty power that enlarges either the federal power or the congressional power, but the international character of the interest concerned that might be acted upon.
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 15 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 the contrary; 16 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.
It has also been suggested that the prohibitions against governmental action contained in the Constitution, and the Bill of Rights in particular, limit the exercise of the treaty power. No doubt this is true, though again there are no cases which so hold. 17
One other limitation of sorts may be contained in the language of certain court decisions that seem to say that only matters of
international concern may be the subject of treaty negotiations. 18 Although 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. 19 At best, any attempted resolution of the issue of limitations must be an uneasy one. 20
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 21 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.