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 He of Departments.
The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, although Jay, writing in The Federalistforesaw that the initiative must often be seized by the President without benefit of senatorial counsel. Cooke ed. 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.
For the details see E. Corwin, supraat Curtiss-Wright Corp.
The Senate must, moreover, content itself with such information as the President chooses to furnish it. 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.
See Fourteen Diamond Rings v. United States, U. Kansas, U. Conversely, the President may, if dissatisfied with amendments Can congress make treaties 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.
CrandallTreaties, Their Making and Enforcement 53 2d ed. Treaty commitments of the United States are of two kinds. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is infra-territorial; 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.
Advice & consent
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. Neilson, 27 U. See The Federalist No.
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.
TexasS. Crandall, supraat,, The meaning of treaties, as of statutes, is determined by the courts. OregonU. Madison, 5 U. In Sanchez-Llamastwo foreign nationals were arrested in the United States, and, in violation of Article 36 of the Vienna Convention on Consular Relations, their nations' consuls were not notified that they had been detained by authorities in a foreign country the U.
The foreign nationals were convicted in Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in challenging Can congress make treaties convictions. The Court did not decide whether Article 36 grants rights that may be invoked by individuals in a judicial proceeding four justices would have held that it did grant such rights. The reason that the Court did not decide whether Article 36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the two cases before it were not entitled to relief on their claims.
Oregon, U. Greene, U. Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected. As in the case of the foreign nationals in Sanchez-LlamasMedellin's nation's consul had not been notified that he had been detained in the United States.
The majority opinion in Medellin was written by Chief Justice Roberts. VI, cl. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. On August 5,the U. Supreme Court denied Medellin a stay of execution, Medellin v. 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. The clause was a direct result of one of the major weaknesses of the Articles of Confederation.
CrandallTreaties, Their Making and Enforcement ch. Particularly with regard to provisions of the Treaty of Peace of20 Footnote Id. Malloy ed. Upon repeated British protests, John Jay, Can congress make treaties 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. Crandall, supraat 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.
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. 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. HeningStatutes of Virginia — 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 26 Footnote 3 U. If the constitution of a state. 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. In Hopkirk v. Bell28 Footnote 7 U.
In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate. Lynham, U. An example is Hauenstein v.
Lynham30 Footnote U. In Kolovrat v. Riggs, U. Kidd, U. Johnson, U. 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, U. 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.
Skip to main content - keyboard accessible
Liberato v. Royer, U. Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute that excluded aliens ineligible for American citizenship from owning real estate was upheld in on the ground that the treaty in question did not secure the rights claimed. Thompson, U. But, in Oyama v. California33 Footnote U. See also Takahashi v. For the latter proposition, Hines v. Davidowitz, U. State38 Cal. 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.
Article ii, section 2: treaty power and appointments
The Charter provisions invoked in this connection [Arts. Meantime, California was informed that the rights of German nationals, under the Treaty of December 8,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. Allen, U. See also Kolovrat v. In the Convention, a proposal to require the adoption of treaties through enactment of a law before they should be binding was rejected.
Treaties as law of the land
But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the effects of statutes, in connection with the treaty power. Neilson 38 Footnote 27 U.
Robertson, U. 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. Crandall, suprachs. The matter arose initially in in connection with the Jay Treaty, 41 Footnote 8 Stat. Richardson, supraat