Also known as: treaty making power · treatymaking power · treaty-making powers · treaty power · power to make treaties
Written by attorneys — see sources below.
A constitutional authority vested in the President to negotiate international agreements that become the supreme law of the land upon receiving the advice and consent of two thirds of the Senators present. The power remains subordinate to the Constitution and cannot authorize governmental action that violates specific individual rights or alter basic structural principles such as federalism.
Thomas Thompson boards a commuter train operating entirely within one state. An executive agreement with a foreign coalition authorizes suspicionless searches of passengers and purports to waive all domestic constitutional protections within a security zone. When officers search Thompson without cause, he sues. The agreement supplies no defense because the treaty-making power cannot validate searches that violate the Fourth Amendment.
Theresa Tucker serves as a postmaster appointed under a statute requiring Senate consent for removal. The President removes her without Senate approval and cites a treaty with a foreign nation that purports to enlarge executive removal power over certain offices. Tucker sues for reinstatement. The treaty cannot confer removal authority that the Constitution withholds from the President acting alone.
Frank S. Myers was appointed postmaster at Portland, Oregon, of the first class on July 10, 1917, for a term of four years fixed by statute. On January 3, 1921, President Wilson directed his removal without the advice and consent of the Senate. Myers protested to the department that his removal was illegal and refused to surrender his office. He was, however, ousted and a successor appointed with the consent of the Senate. He brought suit in the Court of Claims for his salary from the date of his removal to the end of his term. The Court of Claims gave judgment against him. The case comes here on appeal. By act of Congress approved July 12, 1876, it was provided that postmasters of the first, second and third classes should be appointed and might be removed by the President by and with the advice and consent of the Senate. The term of the office was fixed at four years.
View caseTristan Thompson operates a steamboat line between two states under a federal license. A treaty with a neighboring country grants a foreign competitor exclusive navigation rights on the same waters. Thompson challenges the treaty's domestic effect. The treaty-making power cannot displace Congress's exclusive authority over interstate commerce or revive state-granted monopolies.
In 1798 the New York Legislature granted Robert R. Livingston and Robert Fulton the exclusive right for twenty years to navigate the waters within the jurisdiction of the state with boats moved by fire or steam, a privilege later renewed and extended in 1803 and 1807. The right was assigned first to John R. Livingston and then to Aaron Ogden, who thereby claimed authority to operate steamboats between Elizabethtown, New Jersey, and New York City. Thomas Gibbons, meanwhile, took possession of two steamboats, the Stoudinger and the Bellona, which he employed in the same waters while holding a license issued under the federal Act of February 18, 1793, for enrolling and licensing vessels to be employed in the coasting trade and fisheries. Gibbons filed a bill in the Court of Chancery of New York against Ogden seeking an injunction to restrain Ogden from navigating those waters with steamboats. The bill recited the state grants and the assignment to Ogden, alleged that Ogden was violating the exclusive privilege, and prayed for injunctive relief. Gibbons answered that his vessels were duly enrolled and licensed under the 1793 federal statute and insisted on his right to navigate between Elizabethtown and New York notwithstanding the state legislation. The Chancellor awarded the injunction and, after hearing, perpetuated it on the ground that the New York acts were valid. The Court for the Trial of Impeachments and Correction of Errors, the highest court of the state to which the cause could be carried, affirmed the decree. Gibbons then appealed to the Supreme Court of the United States.
View caseTiana Tan, a U.S. citizen born in Jerusalem, seeks a passport listing her birthplace as Israel. An executive agreement with a foreign government directs the State Department to list only the city name. Tan sues. The agreement cannot override the President's exclusive recognition power or force the executive branch to contradict its own foreign-policy determinations.
In 1948, President Truman formally recognized the State of Israel but did not recognize Israeli sovereignty over Jerusalem. Over the subsequent decades, the Executive Branch maintained a consistent policy that the status of Jerusalem should be decided through negotiations rather than unilaterally. The State Department's Foreign Affairs Manual directed that passports for citizens born in Jerusalem list only "Jerusalem" as the place of birth. In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, including section 214(d), which provided that for a United States citizen born in Jerusalem, the Secretary of State shall, upon request, record the place of birth as Israel on the passport. When signing the Act, President George W. Bush issued a statement asserting that the provision would impermissibly interfere with the President's constitutional authority if construed as mandatory. Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 to United States citizens. His mother requested that his passport list "Jerusalem, Israel" as the place of birth, but embassy officials followed State Department policy and listed only "Jerusalem." Zivotofsky's parents then brought suit on his behalf in the United States District Court for the District of Columbia to enforce section 214(d). The district court dismissed the case on political question and standing grounds. The Court of Appeals for the District of Columbia Circuit affirmed the political question determination after initially reversing on standing. The Supreme Court granted certiorari, vacated, and remanded for further proceedings. On remand, the Court of Appeals held the statute unconstitutional. The Supreme Court granted certiorari again.
View caseTrevor Tate imports goods subject to a statutory tariff schedule. An executive agreement with a foreign trading partner lowers the duties below the statutory rate without new legislation. Tate pays the lower rate and faces penalties. The agreement cannot alter tariff rates that Congress alone may set under its commerce and taxing powers.
J. W. Hampton, Jr., & Company imported barium dioxide into New York. The collector of customs assessed the importation at a dutiable rate of six cents per pound. This was two cents per pound more than that fixed by statute under a presidential proclamation issued pursuant to section 315 of the Tariff Act of September 21, 1922. The proclamation was issued by President Calvin Coolidge on May 19, 1924, after the United States Tariff Commission conducted an investigation into differences in costs of production between the United States and Germany, the principal competing country. The investigation included a public hearing at which interested parties could present evidence. The proclamation recited that the statutory duty did not equalize those cost differences and raised the rate on barium dioxide to six cents per pound, within the fifty-percent limit allowed by the statute. Hampton protested the assessment and appealed under section 514 of the Tariff Act. The United States Customs Court heard the case and a majority upheld the assessment. Hampton then appealed to the United States Court of Customs Appeals, which affirmed the Customs Court judgment on October 16, 1926. The Attorney General certified that the case warranted Supreme Court review. Hampton petitioned for certiorari on May 10, 1927, and the Supreme Court granted the writ.
View caseTamara Tan owns property in a city that diverts water in a manner harming her land. A treaty with a foreign nation purports to apply the Fifth Amendment Takings Clause against the city. Tan sues under the treaty. The treaty-making power cannot extend constitutional protections to state or local action that the Bill of Rights does not reach on its own terms.
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View caseNo. Treaties and executive agreements rank below the Constitution. They cannot authorize governmental action that violates individual rights or structural principles such as federalism. Courts must enforce the Constitution even when an agreement purports to waive its protections.
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No. Formal treaties require Senate advice and consent by a two-thirds vote, but the President may conclude executive agreements on other constitutional or statutory bases without that supermajority. The key distinction turns on whether the agreement functions as a treaty that alters domestic rights on its own force.
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No. The treaty power does not supply a general vehicle for overriding the Eleventh Amendment. Only Section 5 of the Fourteenth Amendment provides recognized authority for Congress to abrogate state immunity in the manner required by the Constitution.
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…to permit a commerce, unless in consequence of its having been prohibited by some previous statute. I speak not here of the treaty making power, for that is not exercised under the grant now under consideration. I confine my observation to laws properly so called. And even where freedom of commercial intercourse is made a subject…