Also known as: treaty making power · treatymaking power · treaty-making powers · treaty power · power to make treaties
Written by attorneys · grounded in primary & secondary sources — see 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.
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Tristan 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.
Tiana 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.
Trevor 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.
Tamara 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.
No. 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…