Annotation 10 - Article II

  Clause 2. Treaties and Appointment of Officers

  THE TREATY-MAKING POWER

  President and Senate

The plan which 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.'' 255 Not until September 7, ten days before the Convention's final adjournment, was the President made a participant in these powers. 256 The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, al though Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of senatorial counsel. 257 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 counsellors 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.'' 258  

  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. 259 ''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. 260 The Senate must, moreover, content itself with such information as the President chooses to furnish it. 261 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. 262 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. 263 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. 264  

  Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: ''A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

''In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.'' 265 To the same effect, but more accurate, is Justice Miller's language for the Court a half century later, in the Head Money Cases: ''A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. . . . But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.'' 266  

  Origin of the Conception .--How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress. 267 The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress' promises was dependent on the state legislatures. 268 Particularly with regard to provisions of the Treaty of Peace of 1783, 269 in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists, 270 the promises were not only ignored but were deliberately flouted by many legislatures. 271 Upon repeated British protests, John Jay, the Secretary for Foreign Affairs, suggested to Congress that it request state legislatures to repeal all legislation repugnant to the Treaty of Peace and to authorize their courts to carry the treaty into effect. 272 Although seven States did comply to some extent, the impotency of Congress to effectuate its treaty guarantees was obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation. 273  

  Treaties and the States .--As it so happened, the first case in which the Supreme Court dealt with the question of the effect of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Commonwealth's paper money, which was depreciating rapidly, was to be legal cur rency for the payment of debts and to confound creditors who would not accept the currency provided that Virginia citizens could pay into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that the auditor would give the debtor a certificate of payment which would discharge the debtor of all future obligations to the creditor. 274 The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton 275 the Court struck down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: ''A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the constitution of a State . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States shall be superior to the Constitution and laws of any individual State; and their will alone is to decide.'' 276  

In Hopkirk v. Bell, 277 the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate. 278 Such a case was Hauenstein v. Lynham, 279 in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same, and to export the proceeds of the sale. 280  

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed. 281 But in Oyama v. California, 282 a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of the Fourteenth Amendment, a view which has since received the endorsement of the California Supreme Court by a narrow majority. 283 Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation. 284  

  Treaties and Congress .--In the Convention, a proposal to require the adoption of treaties through enactment of a law before they should be binding was rejected. 285 But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the ef fects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the ''law of the land'' or whether there are some types of treaty provisions which only a subsequent act of Congress can put into effect? The language quoted above 286 from Foster v. Neilson 287 early established that not all treaties are self-executing, for as Marshall there said, a treaty is ''to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.'' 288  

Leaving aside the question when a treaty is and is not self- executing, 289 the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection with the Jay Treaty, 290 certain provisions of which required appropriations to carry them into effect. In view of the third clause of Article I, Sec. 9, which says that ''no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . .'', it seems to have been universally conceded that Congress must be applied to if the treaty provisions were to be executed. 291 A bill was introduced into the House to appropriate the needed funds and its supporters, within and without Congress, offered the contention that inasmuch as the treaty was now the law of the land the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Gallatin contended that the House had complete discretion whether or not to carry into effect treaty provisions. 292 At the conclusion of the debate, the House voted not only the money but a resolution offered by Madison stating that it did not claim any agency in the treaty-making process, ''but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.'' 293 This early precedent with regard to appropriations has apparently been uniformly adhered to. 294  

Similarly, with regard to treaties which modify and change commercial tariff arrangements, the practice has been that the House always insisted on and the Senate acquiesced in legislation to carry into effect the provisions of such treaties. 295 The earliest congressional dispute came over an 1815 Convention with Great Britain, 296 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation as the convention might require for effectuation. The Senate and some members of the House were of the view that no implementing legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did not discriminate against United States goods; the House majority felt otherwise and compromise legislation was finally enacted acceptable to both points of view. 297 But subsequent cases have seen legislation enacted, 298 the Senate once refused ratification of a treaty, which purported to reduce statutorily-determined duties, 299 and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity of some form of congressional implementation.

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by the Secretary of State, it is said, in summary of the practice and reasoning from the text of the Constitution, that the limitation on the treaty power which necessitate legislative implementation may ''be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . .'' 300 The same thought has been expressed in Congress 301 and by commentators. 302 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the courts.

  Congressional Repeal of Treaties .--It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress' constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: ''Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.'' 303  

  Treaties Versus Prior Acts of Congress .--The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. Chief Justice Marshall early asserted that the converse would be true as well, 304 that a treaty which is self-executing is the law of the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta. 305 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: ''In fact, however, there have been few (the writer is not certain that there has been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject.'' 306  

The one instance that may be an exception 307 is Cook v. United States. 308 There, a divided Court held that a 1924 treaty with Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were within the distance from the coast that could be traversed in one hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of the Tariff Act of 1922 309 for Coast Guard officers to inspect and seize any vessel within four leagues--12 miles--of the coast under like circumstances. The difficulty with the case is that the Tariff Act provision had been reenacted in 1930, 310 so that a simple application of the rule of the later governing should have caused a different result. It may be suspected that the low estate to which Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more than slightly influential in the Court's decision.

  When Is a Treaty Self-Executing .--Several references have been made above to a distinction between treaties as self-executing and as merely executory. But what is it about a treaty that makes it the law of the land and which gives a private citizen the right to rely on it in a court of law? As early as 1801, the Supreme Court took notice of a treaty and finding it applicable to the situation before gave judgment for the petitioner based on it. 311 In Foster v. Neilson, 312 Chief Justice Marshall explained that a treaty is to be regarded in courts ''as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.'' It appears thus that the Court has had in mind two characteristics of treaties which keep them from being self-executing. First, ''when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.'' 313 In other words, the treaty itself may by its terms require implementation, as by an express stipulation for legislative execution. 314  

Second, the nature of the stipulation may require legislative execution. That is, with regard to the issue discussed above, whether the delegated powers of Congress imposes any limitation on the treaty power, it may be that a treaty provision will be incapable of execution without legislative action. As one authority says: ''Practically this distinction depends upon whether or not the courts and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities. . . .

''Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered. . . .

''On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc.'' 315 It may well be that these two characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them. 316  

  Treaties and the Necessary and Proper Clause .--What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress' enumerated powers, then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation. 317 Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements and such legislation has been upheld. 318  

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect. 319 And Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty. 320 Referring to such legislation, the Court has said: ''The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with foreign power.'' 321 In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress' enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; the only question that can be raised as to such measures will be whether they are ''necessary and proper'' measures for the carrying of the treaty in question into operation.

The foremost example of this interpretation is Missouri v. Holland. 322 There, the United States and Great Britain had entered into a treaty for the protection of migratory birds, 323 and Congress had enacted legislation pursuant to the treaty to effectuate it. 324 The State objected that such regulation was reserved to the States by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty. 325 Noting that treaties ''are declared the supreme law of the land,'' Justice Holmes for the Court said: ''If the treaty is valid there can be no dispute about the validity of the statute under Article I, Sec. 8, as a necessary and proper means to execute the powers of the Government.'' 326 ''It is obvious,'' he continued, ''that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.'' 327 Since the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was one ''necessary and proper'' to effectuate the treaty.

  Constitutional Limitations on the Treaty Power

A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ''are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.'' 328 As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed the Court has numerous times so stated. 329 It does not appear that the Court has ever held a treaty unconstitutional, 330 although there are examples in which decision was seemingly based on a reading compelled by constitutional considerations. 331 In fact, there would be little argument with regard to the general point were it not for certain dicta in Justice Holmes' opinion in Missouri v. Holland. 332 ''Acts of Congress,'' he said, ''are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.'' Although he immediately followed this passage with a cautionary ''[w]e do not mean to imply that there are no qualifications to the treaty-making power . . . ,'' 333 the Justice's language and the holding by which it appeared that the reserved rights of the States could be invaded through the treaty power led in the 1950s to an abortive effort to amend the Constitution to restrict the treaty power. 334  

Controversy over the Holmes language apparently led Justice Black in Reid v. Covert 335 to deny that the difference in language of the supremacy clause with regard to statutes and with regard to treaties was relevant to the status of treaties as inferior to the Constitution. ''There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.'' 336  

Establishment of the general principle, however, is but the beginning; there is no readily agreed-upon standard for determining what the limitations are. The most persistently urged proposition in limitation has been that the treaty power must not invade the reserved powers of the States. In view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed. 337 Nevertheless, the issue, in the context of Congress' power under the necessary and proper clause to effectuate a treaty dealing with a subject arguably within the domain of the States, was presented as recently as 1920, when the Court upheld a treaty and implementing statute providing for the protection of migratory birds. 338 ''The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.'' 339 The gist of the holding followed. ''Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed.'' 340  

The doctrine which seems deducible from this case and others is ''that in all that properly relates to matters of international rights and obligations, whether these rights and obligations rest upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses all the powers of a constitutionally centralized sovereign State; and, therefore, that when the necessity from the international standpoint arises the treaty power may be exercised, even though thereby the rights ordinarily reserved to the States are invaded.'' 341 It is not, in other words, the treaty power which enlarges either the federal power or the congressional power but the international character of the interest concerned which might be acted upon.

Dicta in some of the cases lend support to the argument that the treaty power is limited by the delegation of powers among the branches of the National Government 342 and especially by the delegated powers of Congress, although it is not clear what the limitation means. If it is meant that no international agreement could be constitutionally entered into by the United States within the sphere of such powers, the practice from the beginning has been to the contrary; 343 if it is meant that treaty provisions dealing with matters delegated to Congress must, in order to become the law of the land, receive the assent of Congress through implementing legislation, it states not a limitation on the power of making treaties as international conventions but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them.

It has also been suggested that the prohibitions against governmental action contained in the Constitution, the Bill of Rights particularly, limit the exercise of the treaty power. No doubt this is true, though again there are no cases which so hold. 344  

One other limitation of sorts may be contained in the language of certain court decisions which seem to say that only matters of ''international concern'' may be the subject of treaty negotiations. 345 While this may appear to be a limitation, it does not take account of the elasticity of the concept of ''international concern'' by which the subject matter of treaties has constantly expanded over the years. 346 At best, any attempted resolution of the issue of limitations must be an uneasy one. 347  

In brief, the fact that all the foreign relations power is vested in the National Government and that no formal restriction is imposed on the treaty-making power in the international context 348 leaves little room for the notion of a limited treaty-making power with regard to the reserved rights of the States or in regard to the choice of matters concerning which the Federal Government may treat with other nations; protected individual rights appear to be sheltered by specific constitutional guarantees from the domestic effects of treaties, and the separation of powers at the federal level may require legislative action to give municipal effect to international agreements.

Footnotes

[Footnote 255] 2 M. Farrand, op. cit., n.4, 183.

[Footnote 256] Id., 538-539.

[Footnote 257] No. 64 (J. Cooke ed., 1961), 435-436.

[Footnote 258] 31 Annals of Congress 106 (1818).

[Footnote 259] 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, op. cit., n.44, 207-217.

[Footnote 260] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

[Footnote 261] E. Corwin, op. cit., n.44, 428-429.

[Footnote 262] 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 (1987), Sec. 314 (hereinafter Restatement, Foreign Relations). See Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).

[Footnote 263] Cf. Art. I, Sec. 5, cl. 1; see also Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276, 283 -284 (1919).

[Footnote 264] For instance, see S. Crandall, Treaties, Their Making and Enforcement (Washington: 2d ed. 1916), 53; CRS Study, op. cit., n.264, 109-120.

[Footnote 265] Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). See The Federalist, No. 75 (J. Cooke ed., 1961), 504-505.

[Footnote 266]   112 U.S. 580, 598 (1884). For treaty provisions operative as ''law of the land'' (self-executing), see S. Crandall, op. cit., n.264, 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an ''executory'' character, see id., 162-163, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op. cit., n.262, 41-68; Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 111-115.

[Footnote 267] See infra, Art. VI, parag. 2 (the supremacy clause).

[Footnote 268] S. Crandall, op. cit., n.264, ch. 3.

[Footnote 269] Id., 30-32. For the text of the Treaty, see 1 W. Malloy (ed.), Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776- 1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586.

[Footnote 270] Id., 588.

[Footnote 271] R. Morris, John Jay, the Nation, and the Court (Boston: 1967), 73-84.

[Footnote 272] S. Crandall, op. cit., n.264, 36-40.

[Footnote 273] The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, op. cit., n.4, 47, 54, and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id., 245, 316, 2 id., 27- 29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present supremacy clause; the draft omitted the authorization of force from the clause, id., 183, but in another clause the legislative branch was authorized to call out the militia to, inter alia, ''enforce treaties''. Id., 182. The two words were struck subsequently ''as being superfluous'' in view of the supremacy clause. Id., 389-390.

[Footnote 274] 9 W. Hening, Statutes of Virginia (Richmond: 1821), 377- 380.

[Footnote 275]   3 U.S. (3 Dall.) 199 (1796).

[Footnote 276] Id., 236-237 (emphasis by Court).

[Footnote 277]   7 U.S. (3 Cr.) 454 (1806).

[Footnote 278] See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489 -490 (1880).

[Footnote 279]   100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197 -198 (1961), the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United States and Yugoslavia were parties, and an Agreement of 1948 between these two nations, coupled with continued American observance of an 1881 treaty granting reciprocal rights of inheritance to Yugoslavian and American nations, were held to preclude Oregon from denying Yugoslavian aliens their treaty rights because of a fear that Yugoslavian currency laws implementing such Agreements prevented American nationals from withdrawing the proceeds from the sale of property inherited in the latter country.

[Footnote 280] See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a non-resident alien wife of a person killed within the State, the right to sue for wrongful death. Such right was afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen's Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926).

[Footnote 281] Terrace v. Thompson, 263 U.S. 197 (1923).

[Footnote 282]   332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon.

[Footnote 283] This occurred in the much advertised case of Sei Fujii v. State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, ''we are satisfied . . . were not intended to supersede domestic legislation.'' That is, the Charter provisions were not self-executing. Restatement, Foreign Relations, op. cit., n.262, Sec. 701, Reporters' Note 5, pp. 155-156.

[Footnote 284] Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961).

[Footnote 285] 2 M. Farrand, op. cit., n.4, 392-394.

[Footnote 286] Supra, text at n.265.

[Footnote 287]   27 U.S. (2 Pet.) 253, 314 (1829).

[Footnote 288] Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ''When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. . . . If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.''; S. Crandall, op. cit., n.264, chs. 11-15.

[Footnote 289] See infra, text at nn.312-316.

[Footnote 290] 8 Stat. 116 (1794).

[Footnote 291] The story is told in numerous sources. E.g., S. Crandall, op. cit., n.264, 165-171. For Washington's message refusing to submit papers relating to the treaty to the House, see J. Richardson, op. cit., n.42, 123.

[Footnote 292] Debate in the House ran for more than a month. It was excerpted from the Annals and separately published as Debates in the House of Representatives of the United States, During the First Session of the Fourth Congress upon the Constitutional Powers of the House with Respect to Treaties (Philadelphia: 1796). A source of much valuable information on the views of the Framers and those who came after them on the treaty power, the debates are analyzed in detail in E. Byrd, Treaties and Executive Agreements in the United States (The Hague: 1960), 35-59.

[Footnote 293] 5 Annals of Congress 771, 782 (1796). A resolution similar in language was adopted by the House in 1871. Cong. Globe, 42d Congress, 1st sess. (1871), 835.

[Footnote 294] S. Crandall, op. cit., n.264, 171-182; 1 W. Willoughby, The Constitutional Law of the United States (New York: 2d ed. 1929), 549- 552; but see Restatement, Foreign Relations, op. cit., n.262, Sec. 111, Reporters' Note 7, p. 57. See also H. Rept. 4177, 49th Congress, 2d sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

[Footnote 295] S. Crandall, op. cit., n.264, 183-199.

[Footnote 296] 8 Stat. 228 (1815).

[Footnote 297] 3 Stat. 255 (1816). See S. Crandall, op. cit., n.264, 184- 188.

[Footnote 298] Id., 188-195; 1 W. Willoughby, op. cit., n.294, 555-560.

[Footnote 299] S. Crandall, op. cit., n.264, 189-190.

[Footnote 300] Anderson, The Extent and Limitations of the Treaty-Making Power, 1 Amer. J. Int. L. 636, 641 (1907).

[Footnote 301] At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self-executing and others not. 29 Annals of Congress 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained ''stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory. . . .'' Id., 1019. Much the same language was included in a later report. H. Rept. No. 37, 40th Congress, 2d sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C.Cir.), cert. den., 436 U.S. 907 (1978).

[Footnote 302] T. Cooley, General Principles of Constitutional Law (New York: 3d ed. 1898, 175; Q. Wright, The Control of American Foreign Relations (New York: 1922), 353-356.

[Footnote 303] Head Money Cases, 112 U.S. 580, 598 -599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721 (1893). ''Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.'' La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 73 U.S. (6 Wall.) 160, 165 -166 (1868), wherein it is stated obiter that ''Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before. . . .''

[Footnote 304] Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 -315 (1829). In a later case, it was determined in a different situation that by its terms the treaty in issue, which had been assumed to be executory in the earlier case, was self-executing. United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

[Footnote 305] E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220 -221 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320 -321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).

[Footnote 306] 1 W. Willoughby, op. cit., n.294, 555.

[Footnote 307] Other cases, which are cited in some sources, appear distinguishable. United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801), applied a treaty entered into subsequent to enactment of a statute abrogating all treaties then in effect between the United States and France, so that it is inaccurate to refer to the treaty as superseding a prior statute. In United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which the tribe ceded certain territory, later included in a State, provided that a federal law restricting the sale of liquor on the reservation would continue in effect in the territory ceded; the Court found the stipulation an appropriate subject for settlement by treaty and the provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).

[Footnote 308]   288 U.S. 102 (1933).

[Footnote 309] 42 Stat. 858, 979, Sec. 581.

[Footnote 310] 46 Stat. 590, 747, Sec. 581.

[Footnote 311] United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801).

[Footnote 312]   27 U.S. (2 Pet.) 253, 314 -315 (1829).

[Footnote 313] Ibid.

[Footnote 314] Generally, the qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to the former, it has always apparently been the practice to insert in treaties affecting the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress. 1 W. Willoughby, op. cit., n.294, 558. Perhaps of the same nature was a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article V of the Webster- Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by the two States and payment to them of compensation. S. Crandall, op. cit., n.264, 222-224.

[Footnote 315] Q. Wright, op. cit., n.302, 207-208. See also L. Henkin, Foreign Affairs and the Constitution (Mineola, N.Y.: 1972), 156-162.

[Footnote 316] Thus, compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 - 315 (1829), with Cook v. United States, 288 U.S. 102, 118 -119 (1933).

[Footnote 317] Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614.

[Footnote 318] See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083-4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12 , 64, 75 (1957).

[Footnote 319] 18 U.S.C. Sec. Sec. 3181-3195.

[Footnote 320] Baldwin v. Franks, 120 U.S. 678, 683 (1887).

[Footnote 321] Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), in the following words: ''Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.'' Id., 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power ''to carry into effect rights expressly given and duties expressly enjoined'' by the Constitution. Id., 618-619. However, the treaty-making power is neither a right nor a duty, but one of the powers ''vested by this Constitution in the Government of the United States.'' Art. I, Sec. 8, cl. 18.

[Footnote 322]   252 U.S. 416 (1920).

[Footnote 323] 39 Stat. 1702 (1916).

[Footnote 324] 40 Stat. 755 (1918).

[Footnote 325] United States v. Shauver, 214 F. 154 (E.D.Ark. 1914); United States v. McCullagh, 221 F. 288 (D.Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress' power under the commerce clause would be deemed more than adequate but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918).

[Footnote 326] Missouri v. Holland, 252 U.S. 416, 432 (1920).

[Footnote 327] Id., 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903).

[Footnote 328] Whitney v. Robertson, 124 U.S. 190, 194 (1888).

[Footnote 329] ''The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.'' Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). ''It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.'' The Cherokee Tobacco, 11 Wall. (78 U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).

[Footnote 330] 1 W. Willoughby, op. cit., n.294, 561; L. Henkin, op. cit., n.315, 137. In Power Authority of New York v. FPC, 247 F. 2d 538 (2d Cir. 1957), a reservation attached by the Senate to a 1950 treaty with Canada was held invalid. The court observed that the reservation was properly not a part of the treaty but that if it were it would still be void as an attempt to circumvent constitutional procedures for enacting amendments to existing federal laws. The Supreme Court vacated the judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement with Canada was held void as conflicting with existing legislation. The Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296 (1955).

[Footnote 331] Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).

[Footnote 332]   252 U.S. 416 (1920).

[Footnote 333] Id., 433. Subsequently, he also observed: ''The treaty in question does not contravene any prohibitory words to be found in the Constitution.'' Ibid.

[Footnote 334] The attempt, the so-called ''Bricker Amendment,'' was aimed at the expansion into reserved state powers through treaties as well as at executive agreements. The key provision read: ''A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.'' S.J. Res. 43, 82d Congress, 1st sess. (1953), Sec. 2. See also S.J. Res. 1, 84th Congress, 1st sess. (1955), Sec. 2. Extensive hearings developed the issues thoroughly but not always clearly. Hearings on S.J. Res. 130, Before a Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d sess. (1952). Hearings on S.J. Res. 1 & 43, Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st sess. (1953); Hearings on S.J. Res. 1, Before a Subcommittee of the Senate Judiciary Committee, 84th Congress, 1st sess. (1955). See L. Henkin, op. cit., n.315, 383- 385.

[Footnote 335]   354 U.S. 1 (1957) (plurality opinion).

[Footnote 336] Id., 16-17. For discussions of the issue, see American Law Institute, op. cit., n.262, Sec. 302; Nowak & Rotunda, A Comment on the Creation and Resolution of a ''Non-Problem:'' Dames & Moore v. Regan, the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. Rev. 1129 (1982); L. Henkin, op. cit., n.315, 137-156.

[Footnote 337] Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cr.) 603 (1813); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259 (1817); Hauenstein v. Lynham, 100 U.S. 483 (1880). Jefferson, in his list of exceptions to the treaty power, thought the Constitution ''must have meant to except out of these the rights reserved to the States, for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.'' Jefferson's Manual of Parliamentary Practice, Sec. 594, reprinted in The Rules and Manual of the House of Representatives, H. Doc. 102-405, 102d Congress, 2d sess. (1993), 298-299. But this view has always been the minority one. Q. Wright, op. cit., n.302, 92 n.97. The nearest the Court ever came to supporting this argument appears to be Frederickson v. Louisiana, 64 U.S. (23 How.) 445, 448 (1860).

[Footnote 338] Missouri v. Holland, 252 U.S. 416 (1920).

[Footnote 339] Id., 433.

[Footnote 340] Id., 435.

[Footnote 341] 1 W. Willoughby, op. cit., n.294, 569. And see L. Henkin, op. cit., n.315, 143-148; Restatement, Foreign Relations, op. cit., 262, Sec. 302, Comment d, & Reporters' Note 3, pp. 154-157.

[Footnote 342] E.g., Geofroy v. Riggs, 133 U.S. 258, 266 -267 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). Jefferson listed as an exception from the treaty power ''those subjects of legislation in which [the Constitution] gave a participation to the House of Representatives'' although he admitted ''that it would leave very little matter for the treaty power to work on.'' Jefferson's Manual, op. cit., n.337, 299.

[Footnote 343] Q. Wright, op. cit., n.302, 101-103. See also, L. Henkin, op. cit., n.315, 148-151.

[Footnote 344] Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v. Riggs, 133 U.S. 258, 267 (1890).

[Footnote 345] ''[I]t must be assumed that the framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty. . . .'' Holden v. Joy 84 U.S. (17 Wall.) 211, 243 (1872). With the exceptions noted, ''it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.'' Geofroy v. Riggs, 133 U.S. 258, 267 (1890). ''The treatymaking power of the United States . . . does extend to all proper subjects of negotiation between our government and other nations.'' Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).

[Footnote 346] Cf. L. Henkin, op. cit., n.315, 151-156.

[Footnote 347] Other reservations which have been expressed may be briefly noted. It has been contended that the territory of a State could not be ceded without such State's consent. Geofroy v. Riggs, 133 U.S. 258, 267 (1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541 (1885). Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see S. Crandall, op. cit., n.264, 220-229; 1 W. Willoughby, op. cit., 294, 572-576.

[Footnote 348] Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); Holmes v. Jenison, 39 U.S. (14 Pet.) 540, 575 -576 (1840).


 

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