Also known as: treaty powers · treaty-making power · treaty clause
Written by attorneys · grounded in primary & secondary sources — see below
The President's constitutional authority to make treaties with the advice and consent of two-thirds of the Senators present. A valid treaty has the force of federal statute as supreme law of the land and preempts inconsistent state law, yet remains subordinate to the Constitution.
President Carson signs an executive agreement allowing foreign officers to conduct suspicionless searches on domestic trains in State X. The agreement purports to waive all constitutional protections for passengers. A commuter searched without cause sues, and the court holds the waiver ineffective because the agreement cannot authorize violations of the Fifth Amendment.
A treaty with Canada protects migratory birds. Montana enacts a statute giving residents preferred access to elk hunting. A nonresident hunter challenges the preference, and the court upholds federal preemption under the treaty power even though the state claims authority over local wildlife.
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Congress passes a statute requiring the State Department to list Jerusalem as part of Israel on passports. The President refuses to enforce the provision, citing foreign-affairs authority. A citizen born in Jerusalem sues, and the court must decide whether the treaty power and executive authority render the dispute nonjusticiable.
A treaty protects migratory birds. Congress enacts a statute regulating hunting on private land within a state. A state challenges the law as exceeding enumerated powers, yet the court sustains the statute because the treaty power supplies independent authority to implement the international obligation.
The President negotiates a trade agreement with a foreign nation. The Senate refuses to give its advice and consent. A domestic importer seeks to enforce the agreement in court, but the court holds that the treaty power requires Senate concurrence before the agreement can bind the United States.
A treaty creates an international claims commission. The President issues an order directing federal courts to stay all related domestic suits. A claimant challenges the stay, and the court examines whether the President may unilaterally modify the treaty's dispute-resolution mechanism through executive action alone.
No. Treaties and executive agreements rank below the Constitution. They cannot authorize government action that violates individual rights or basic structural principles such as federalism.
Supporting sources
A treaty requires the advice and consent of two-thirds of the Senators present. An executive agreement rests on the President's foreign-affairs or commander-in-chief powers or on prior statutory authority and does not need Senate ratification.
Supporting sources
Yes. When a treaty addresses a matter of international concern, Congress may enact implementing legislation that reaches subjects it could not otherwise regulate under its Article I powers alone.
No. An accord cannot strip U.S. persons of constitutional protections for conduct occurring entirely within the United States. Any clause purporting to do so is ineffective.
Supporting sources
…Congress, or in the President and Senate. The power to declare war, to lay taxes, to coin money, is vested in Congress; and the treaty-making power in the president and Senate. The Postmaster General has the power to dismiss his deputies. Is that a sovereign power or has he any? "Inherent power! That is a new principle to enlarge the…