The Treaty Making Power

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.


President and Senate

The plan that 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.”298 Not until September 7, ten days before the Convention’s final adjournment, was the President made a participant in these powers.299 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 Federalist, foresaw that the initiative must often be seized by the President without benefit of senatorial counsel.300 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 counselors 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.”301

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.302 “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 1936.303 The Senate must, moreover, content itself with such information as the President chooses to furnish it.304 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.305 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 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.306 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.307

298 2 M. Farrand, The Records Of The Federal Convention Of 1787 183 (rev. ed. 1937).

299 Id. at 538–39.

300 No. 64 (J. Cooke ed., 1961), 435–436.

301 31 Annals Of Congress 106 (1818).

302 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, supra, at 207–217.

303 United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936).

304 E. Corwin, supra, at 428–429.

305 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 § 314 (hereinafter Restatement, Foreign Relations) (1987). See Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).

306 Cf. Art. I, § 5, cl. 1; see also Missouri Pacific Ry. v. Kansas, 248 U.S. 276, 283–84 (1919).

307 For instance, see S. Crandall, Treaties, Their Making And Enforcement 53 (2d ed. 1916); CRS Study, supra, 109–120.

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