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The power to make and the power to implement treaties

November 5, 2013 by Oona A. Hathaway


Oona A. Hathaway from Yale Law filed a brief in the Bond v. United States case, and she shares with us how the Framers viewed treaty powers – a central issue now in front of the Supreme Court. This post draws on the amicus brief filed on behalf of the Yale Law School Center for Global Legal Challenges.

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesOne of the central issues in the Bond case is whether the power to make treaties necessarily implies the power to implement them.  Consider this argument in Mrs. Bond’s reply brief:

“The government’s defense of its broad view of [the Chemical Weapons Implementation Act] thus must stand or fall on its remarkable contention that Congress need not abide by the federalist structure of our Constitution when it legislates to implement a valid non-self-executing treaty. Rather than reconcile that startling proposition with the Constitution or precedent, the government principally defends an entirely different one — that federalism principles impose no limits on the power to make treaties. While that proposition is highly debatable, it is of little consequence here. This case is not about the scope of the power to make treaties; petitioner concedes that the Convention is a valid treaty. This case is about the scope of Congress’ power to implement treaties, specifically, non-self-executing treaties. “

But can the power to make and the power to implement treaties really be distinguished so easily?  To see why not, it is important to remember the context within which the Framers were writing.  At the time the Framers gathered to draft the Constitution, the federal government, operating under the Articles of Confederation, was unable to secure state compliance with treaty obligations—even those as essential to the nation’s security as the 1783 Treaty of Paris, which brought an end to the war with Great Britain. This failure placed the very existence of the new nation at risk. Indeed, in retaliation for the United States’ failure to comply, Britain refused to evacuate strategically important forts in the northern frontier, effectively threatening renewal of hostilities.

The Articles thus put the entire nation at risk by permitting individual states to cause breaches of the country’s treaty obligations. As Alexander Hamilton explained:

“The treaties of the United States, under the present Constitution [of the Confederation], are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed.” -- The Federalist No. 22 (Alexander Hamilton).

The Framers agreed that what the country needed was an effective federal treaty power: that is, the power both to make and to carry out treaty obligations. Without such a power, individual States would always be able to undermine the entire nation’s foreign relations and, thereby, its security. As Hamilton put it, “[T]he peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.” The Federalist No. 80 (Alexander Hamilton).

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James Madison made the point even more forcefully at the Philadelphia Convention, asking of a proposal: “Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars?”  He reminded the Convention’s delegates that individual States had violated treaties before:

“The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed.  A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing confederacy does (not) sufficiently provide against this evil.” - The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., 1911).

The Framers considered it essential that the federal government be able to live up to not just some, but all its valid treaty commitments. Of course, they generally expected treaties to be self-executing. They therefore never expressly discussed how best to implement and enforce non-self-executing treaties. But the Constitution’s text, structure, and history all make clear that the Framers intended the federal government to have power to effectuate all its valid treaty commitments.

First: text. The Necessary and Proper Clause gives Congress the power to make all laws necessary for carrying into execution all other powers vested by the Constitution—the Treaty Power included. And the Treaty Power grants the President and the Senate the power to make all treaties on behalf of the United States, whether those treaties are self-executing or not.

Second: structure. It would be strange indeed if the President and two-thirds of the Senate could accomplish by self-executing treaty what the President and two-thirds of the Senate plus both Houses of Congress and the President acting a second time could not. Mrs. Bond is correct, of course, that the Senate may ratify a valid non-self executing treaty with the understanding that there will be no federal legislation to carry that treaty into effect. In such cases, however, the Senate is fully capable of making those intentions and expectations clear by modifying the United States’ treaty obligations. It would not, moreover, vote to approve federal legislation contravening that intention.

Third: history. Non-self-executing treaties bind their signatories as a matter of international law just as strongly as their self-executing counterparts. It stands to reason, then, that the Framers would have viewed compliance with non-self-executing treaties as equally essential to the nation’s security.

It is true that there are some treaties that are beyond the federal government’s power to implement, but that is because they are beyond the federal government’s power to make.  A treaty may not contravene the Constitution, and may not cause what the plurality in Reid v. Covert referred to as a “change in the character of the government.” This is, as the Reid plurality concluded, fully consistent with the Holland Court’s “careful” analysis holding that the Migratory Birds Treaty was “not inconsistent with any specific provision of the Constitution.” After all, a treaty that violates affirmative prohibitions found in the Constitution is not a valid treaty. (For example, a treaty provision that granted a title of nobility would be an invalid treaty commitment.)

Mrs. Bond’s argument that the federal government had the power to make the Chemical Weapons Convention but not to implement it thus flies in the face of the clear text, structure, and history of the Constitution.

Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School.

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