Also known as: treaty power · treaty-making power · treaty-making powers · treaty clause · treaty authority
Written by attorneys — see sources below.
The constitutional authority of the President to negotiate treaties subject to Senate advice and consent together with the power to conclude executive agreements. This authority permits the United States to enter binding international commitments but remains subordinate to the Constitution. Agreements made under the treaty power therefore cannot authorize government action that violates specific constitutional protections.
Tamara Tan, a U.S. journalist, learned that a binational tribunal created under a cybersecurity executive agreement had directed her cloud provider to release all account data without a warrant. She sued in federal district court to block compliance. The court held that the agreement could not supply authority for the disclosure because the treaty power does not permit the government to bypass Fourth Amendment requirements that would otherwise apply.
Triumph Manufacturing imported machinery parts and challenged a customs ruling that imposed higher duties under a recent trade agreement. The company argued that the agreement altered statutory classification rules in a manner inconsistent with congressional delegation limits. The court examined whether the executive agreement remained within the bounds of authority delegated by statute.
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 caseTrevor Tate, a state wildlife officer, sought to enforce a state hunting limit against a federal regulation adopted to implement a treaty protecting migratory birds. The state claimed the treaty invaded traditional state authority over wildlife. The court upheld the federal regulation because the treaty power permitted Congress to enact legislation that would otherwise exceed its enumerated powers.
The State of Missouri brought a bill in equity against a United States game warden seeking to prevent enforcement of the Migratory Bird Treaty Act of July 3, 1918, and regulations made by the Secretary of Agriculture. Missouri asserted that the statute unconstitutionally interfered with rights reserved to the States by the Tenth Amendment and invaded the state's sovereign rights as shown in its statutes. The state also claimed a pecuniary interest as owner of the wild birds within its borders. A treaty between the United States and Great Britain was proclaimed on December 8, 1916. The treaty noted that migratory birds traversing the United States and Canada were valuable but in danger of extermination and provided for close seasons and other protections while committing the parties to necessary measures through their legislatures. Congress enacted the Migratory Bird Treaty Act on July 3, 1918, to implement the treaty. The act banned the killing, capturing, or selling of covered migratory birds except as allowed by Secretary of Agriculture regulations, which were issued on July 31 and October 25, 1918. The district court granted a motion to dismiss the bill, holding the act constitutional, and Missouri appealed to the Supreme Court.
Talon Security imported goods subject to duties set by presidential proclamation under a reciprocal trade agreement. The importer argued that the proclamation exceeded the scope of authority granted by Congress. The court reviewed whether the agreement and proclamation together stayed within the statutory delegation of tariff authority.
Duties were assessed and collected under the rates in the Tariff Act of October 1, 1890, on woollen dress goods, woollen wearing apparel, and silk embroideries imported by Marshall Field & Co., on silk and cotton laces imported by Boyd, Sutton & Co., and on colored cotton cloths imported by Herman, Sternbach & Co. The importers each protested the assessments on the ground that the act was not a law of the United States. Appeals were taken to the Board of General Appraisers under the Customs Administrative Act of June 10, 1890, which affirmed the collectors' decisions in each case. The Circuit Courts of the United States in the respective districts affirmed the board's judgments, after which the cases were brought to the Supreme Court for review. The original enrolled act, designated H.R. 9416 on its face, was received at the Department of State on October 1, 1890. It bore the signatures of Thomas B. Reed as Speaker of the House of Representatives and Levi P. Morton as Vice-President and President of the Senate, together with the endorsement "Approved October 1st, 1890. BENJ. HARRISON" and a certificate by Clerk Edw. McPherson that the act originated in the House. The Secretary of State furnished a correct copy to the Congressional Printer, and the act appeared in the published volume of statutes. The importers alleged that the enrolled act omitted a section that had been part of the bill as finally passed. That omitted section, numbered 30, provided for a drawback or rebate on original factory packages of smoking and manufactured tobacco and snuff held by manufacturers or dealers at the time the tax reduction took effect, required claims to be presented within sixty days, authorized payment in stamps, set a five-dollar minimum, and appropriated funds for the rebates. The importers contended that congressional journals, committee reports, conference reports, and other documents printed by authority of Congress demonstrated the omission. The act contained additional provisions that formed part of the importers' challenges. Section 3 authorized the President, on and after January 1, 1892, to suspend by proclamation the free introduction of sugars, molasses, coffee, tea, and hides from any producing country that imposed duties or exactions on United States agricultural or other products deemed reciprocally unequal and unreasonable, and to impose specified duties during the suspension. Paragraph 231 of Schedule E directed that, from July 1, 1891, until July 1, 1905, bounties of two cents per pound on sugar testing not less than ninety degrees and one and three-fourths cents per pound on sugar testing between eighty and ninety degrees be paid from the Treasury to producers of qualifying domestic sugar, subject to rules prescribed by the Commissioner of Internal Revenue.
Theresa Tucker, a consular officer removed by the President, claimed that a statute requiring Senate consent for removal limited executive power. The government responded that the treaty power and foreign affairs authority supported unrestricted removal. The court addressed the relationship between statutory limits and the President's authority over officers engaged in foreign relations.
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 caseThomas Thompson, a nonresident hunter, challenged a state statute imposing higher fees on nonresidents for elk tags issued under a wildlife management compact with Canada. He argued the compact could not authorize discrimination that violated privileges and immunities principles. The court considered whether the treaty-based compact altered the state's authority to regulate access to its natural resources.
In 1975 and 1976 Montana required a resident to pay nine dollars for an elk license and four dollars for a tag. A nonresident had to buy a combination license for two hundred twenty-five dollars plus a tag for one hundred fifty-one dollars. This produced totals of thirteen dollars for residents and three hundred seventy-six dollars for nonresidents. Appellants included Lester Baldwin, a Montana resident and licensed outfitter whose customers were mostly nonresidents. Nonresidents Carlson, Huseby, Lee, and Moris from Minnesota traveled to Montana each year to hunt elk and had purchased the higher-priced nonresident licenses in prior seasons. Montana maintained more than four hundred outfitters. The State had a force of seventy game wardens. Each warden covered roughly two thousand one hundred square miles. The State spent more than twenty-six million dollars on wildlife management between 1966 and 1976, of which approximately thirteen million dollars came from license fees. The State determined annual elk harvest numbers from census data and winter-range availability. It issued seventeen thousand resident and twelve hundred nonresident licenses in 1975. Elk were concentrated in the mountainous western third of the State and depended on private ranch lands for winter forage. Nonresident big-game licenses rose five hundred thirty percent from 1960 to 1970 while resident licenses rose sixty-seven percent. Nonresidents constituted about thirteen percent of all hunters in the 1974-1975 season. In 1975 the five appellants filed suit in the United States District Court for the District of Montana against the Fish and Game Commission, its director, and its five commissioners. They sought declaratory and injunctive relief plus partial reimbursement of fees already paid. A three-judge district court, with one judge dissenting in part, upheld the statutes. The Supreme Court noted probable jurisdiction in 1977.
No. Treaties and executive agreements occupy a high place in the hierarchy of federal law but remain subordinate to the Constitution. They cannot confer authority to conduct searches or seizures without warrants or probable cause when such action would violate the Fourth Amendment if undertaken under a statute. A binational tribunal order issued under a cybersecurity agreement therefore remains subject to ordinary constitutional constraints on data production.
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…
…that the establishment of such tribunals was among the most important subjects for treaty stipulations. . . . ..... "The treaty-making power
…of migratory game birds in a way that frustrates a valid treaty of the United States entered into pursuant to the Art. II, § 2,
…C. J., and Stewart and Stevens, JJ., concurring in judgment) (finding in similar fact strong reason for Judiciary not to decide treaty power question). The Executive and Legislative Branches frequently work out disagreements through ongoing contacts and relationships, involving, for example, budget authorizations, confirmation…
…(the five numbers contributed by Chief Justice Jay related to the danger from foreign force and influence, and to the treaty-making power) should not and cannot be disregarded. The Constitution prohibits any direct tax, unless in proportion to numbers as ascertained by the census; and, in the light of the circumstances to…
No. A non-self-executing treaty creates no enforceable rights in domestic courts or state agencies until Congress passes implementing legislation. The President cannot use a memorandum or other directive to require state agencies to apply the treaty's terms. State agencies therefore have no obligation to enforce labor protections contained in such a pact.
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No. Treaties and executive agreements cannot authorize trials that violate otherwise applicable constitutional protections such as the right to a jury. An agreement establishing a special court that tries civilians without juries remains subject to Fifth and Sixth Amendment limits. The government cannot evade those protections by structuring proceedings under an international accord or by holding them overseas.
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No. An executive agreement cannot deprive a party of the right to a jury trial in a traditional civil action by mandating resolution before an international board that eliminates jury procedures. The agreement remains subordinate to constitutional guarantees even when it supplies coverage that domestic insurers have withdrawn. Consent to policy terms does not convert an involuntary override into a valid waiver.
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