Article 2, Section 2, Clause 2 — Congressional Implementation Of Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

When a treaty provision requires implementing legislation or appropriation of funds to carry out the United States’ obligations, the task of providing that legislation falls to Congress.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn1art2 " See Medellín v. Texas, 552 U.S. 491, 525–26 (2008). See also (discussing Congress’s role in implementing non-self-executing treaties). ") In the early years of constitutional practice, debate arose over whether Congress was obligated—rather than simply empowered—to enact legislation implementing non-self-executing treaty provisions into domestic law.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn2art2 " Whereas Alexander Hamilton argued that the House of Representatives was obligated to appropriate funds for the Jay Treaty, James Madison, then a Member of the House, and others disagreed. Compare Enclosure to Letter from Alexander Hamilton to George Washington (Mar. 29, 1796), in 20 Papers of Alexander Hamilton 98 (Harold C. Syrett ed., 1974) ( “[T]he [H]ouse of [R]epresentatives have no moral power to refuse the execution of a treaty, which is not contrary to the [C]onstitution, because it pledges the public faith, and have no legal power to refuse its execution because it is a law—until at least it ceases to be a law by a regular act of revocation of the competent authority.” ), with 5 Annals of Cong. 493–94 (1796) (statement of Rep. Madison) ( “[T]his House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, . . . it would be the mere instrument of the will of another department, and would have no will of its own.” ); 5 Annals of Cong. 771 (1796) (proposed resolution of Rep. William Blount) ( “[W]hen 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.” ). ") But the issue has not been resolved in any definitive way.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn3art2 " See Louis Henkin, Foreign Affairs and the U.S. Constitution 205 (2d ed. 1996). ")

By contrast, the Supreme Court did address the scope of Congress’s power to enact legislation implementing a treaty in a 1920 case. In Missouri v. Holland,[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn4art2 " 252 U.S. 416 (1920). ") the Supreme Court considered a constitutional challenge to a federal statute that implemented a treaty prohibiting the killing, capturing, or selling of certain birds that traveled between the United States and Canada.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn5art2 " See Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918); Convention for the Protection of Migratory Birds art. VIII, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702. ") In the preceding decade, two federal district courts had held that similar statutes enacted prior to the treaty violated the Tenth Amendment because they infringed on the reserved powers of the states to control natural resources within their borders.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn6art2 " United States v. McCullagh, 221 F. 288, 295–96 (D. Kan. 1915); United States v. Shauver, 214 F. 154, 160 (E.D. Ark. 1914). ") But the Holland Court determined that, even if those district court decisions were correct, their reasoning no longer applied once the United States concluded a valid migratory bird treaty.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn7art2 " See Holland, 252 U.S. at 433. ") In an opinion authored by Justice Oliver Wendell Holmes, the Holland Court concluded that the federal government can use the treaty power to regulate matters that the Tenth Amendment otherwise might reserve to the states.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn8art2 " See id at 433–34 (concluding that the “treaty in question does not contravene any prohibitory words to be found in the Constitution” and is not “forbidden by some invisible radiation from the general terms of the Tenth Amendment” ). ") And if the treaty itself is constitutional, the Holland Court held, Congress has the power under the Necessary and Proper Clause[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn9art2 " See U.S. Const. art. I, § 8. See also (analyzing the Necessary and Proper Clause). ") to enact legislation implementing the treaty into domestic law of the United States without restraint by the Tenth Amendment .[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn10art2 " See Holland, 252 U.S. at 432 ( “If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” ). Accord Neely v. Henkel, 180 U.S. 109, 121 (1901) ( “The power of Congress to make all laws necessary and proper . . . 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 a foreign power.” ). ")

Some legal commentators and jurists have questioned aspects of the Justice Holmes’s reasoning in Holland.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn11art2 " See Bond v. United States, 572 U.S. 844, 873 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) (describing Holland's interpretation of the Necessary and Proper Clause as consisting of an “unreasoned and citation-less sentence” that is unsupported by the Constitution’s text or structure); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005) (arguing that Holland's interpretation of the Necessary and Proper Clause “is wrong and the case should be overruled” ). See also , at n.1 (discussing subsequent Supreme Court decisions responding to questions raised in Holland concerning the Supremacy Clause). In the 1950s, there was an effort, led by Senator John Bricker of Ohio, to limit the scope of the treaty power as described in Holland through a constitutional amendment. One version of the proposed amendment, which became known as the “Bricker Amendment,” would have provided that a “treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” See S. Comm. on the Judiciary, 83d Cong., Proposals to Amend the Treaty-Making Provisions of the Constitution: Views of Deans and Professors of Law 3 (Comm. Print 1953). No version of the Bricker Amendment was ever adopted. ") Some of Holland's critics contend that the decision gives the federal government too broad a power to legislate in areas reserved to the states, especially when coupled with twentieth century changes in international lawmaking that have expanded the types of issues addressed in treaties.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn12art2 " See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 433 (1998); Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 Mich. L. Rev. 98, 98–99 (2000); John C. Eastman, Will Mrs. Bond Topple Missouri v. Holland?, Cato Sup. Ct. Rev. 185, 202 (2010–2011). For discussion of changes in international treaty practice, see . ") Others argue that a combined reading of the Necessary and Proper Clause and the Treaty Clause only permits Congress to pass laws necessary to make treaties, not to implement them, as Justice Holmes reasoned.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn13art2 " See, e.g., Bond v. United States, 572 U.S. 844, 874–76 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) ( “[A] power to help the President make treaties is not a power to implement treaties already made.” ); Rosenkranz, supra note 11, at 1882 ( “The power granted to Congress is emphatically not the power to make laws for carrying into execution ‘the treaty power,’ let alone the power to make laws for carrying into execution ‘all treaties.’ Rather, on the face of the conjoined text, Congress has power ‘To make all Laws which shall be necessary and proper for carrying into Execution . . . [the] Power . . . to make Treaties.’” ) (alterations in original). ") Under this view, Congress could use the Necessary and Proper Clause to, for example, appropriate funds for U.S. diplomats to engage in overseas treaty negotiations, but Congress must rely on its other Article I powers to implement treaties that have been signed and ratified.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn14art2 " See Bond, 572 U.S. at 876 (Scalia, J., concurring in the judgment joined by Thomas, J.) ( “Once a treaty has been made, Congress’s power to do what is ‘necessary and proper’ to assist the making of treaties drops out of the picture. To legislate compliance with the United States’ treaty obligations, Congress must rely upon its independent (though quite robust) Article I, § 8, powers.” ); Rosenkranz, supra note 11, at 1882–85 (discussing the scope of legislation Congress could pass under a more restrictive view of the Necessary and Proper Clause and its relationship to the Treaty Clause). ") Other legal scholars respond to these critiques by contending that the power to make treaties is hollow without the power to implement them,[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/congressional-implementation-of-treaties#fn15art2 " See, e.g., Edward T. Swaine, Putting Missouri v. Holland on the Map, 73 Mo. L. Rev. 1007, 1012–18</spa