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.”332 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.333 It does not appear that the Court has ever held a treaty unconstitutional,334 although there are examples in which decision was seemingly based on a reading compelled by constitutional considerations.335 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.336 “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 . . . ,”337 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.338
332 Whitney v. Robertson, 124 U.S. 190, 194 (1888).
333 “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, 78 U.S. (11 Wall.), 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).
334 1 W. Willoughby, supra, at 561; L. Henkin, supra, at 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).
335 Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).
336 252 U.S. 416 (1920).
337 252 U.S. at 433. Subsequently, he also observed: “The treaty in question does not contravene any prohibitory words to be found in the Constitution.” Id.
338 The attempt, the so-called “Bricker Amendment,” was aimed at the expansion into reserved state powers through treaties as well as 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), § 2. See also S.J. Res. 1, 84th Congress, 1st Sess. (1955), § 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, supra, at 383-85.
Controversy over the Holmes language apparently led Justice Black in Reid v. Covert339 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.”340
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.341 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.342 “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.”343 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.”344
339 354 U.S. 1 (1957) (plurality opinion).
340 354 U.S. at 16-17. For discussions of the issue, see Restatement, Foreign Relations, § 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, supra, at 137-156.
341 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, § 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, supra, at 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).
342 Missouri v. Holland, 252 U.S. 416 (1920).
343 252 U.S. at 433.
344 252 U.S. at 435.
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.”345 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.
345 1 W. Willoughby, supra, at 569. And see L. Henkin, supra, at 143-148; Restatement, Foreign Relations, § 302, Comment d, & Reporters’ Note 3, pp. 154-157.
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 Government346 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;347 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.348
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.349 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.350 At best, any attempted resolution of the issue of limitations must be an uneasy one.351
346 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, supra, at 299.
347 Q. Wright, supra, at 101-103. See also, L. Henkin, supra, at 148-151.
348 Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v. Riggs, 133 U.S. 258, 267 (1890).
349 “[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).
350 Cf. L. Henkin, supra, at 151-56.
351 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, supra, at 220-229; 1 W. Willoughby, supra, at 572-576.
A further contention is that while foreign territory can be annexed to the United States by the treaty power, it could not be incorporated with the United States except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310-344 (1901) (four Justices dissenting). This argument appears to be a variation of the one in regard to the correct procedure to give domestic effect to treaties.
Another argument grew out the XII Hague Convention of 1907, proposing an International Prize Court with appellate jurisdiction from national courts in prize cases. President Taft objected that no treaty could transfer to a tribunal not known to the Constitution any part of the judicial power of the United States and a compromise was arranged. Q. Wright, supra, at 117-118; H. REP. NO. 1569, 68th Congress, 2d Sess. (1925).
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 context352 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.
352 Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-576 (1840).
Last modified: June 9, 2014