Article 2, Section 2, Clause 2 — Historical Background On Treaty Making Power

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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.

Jurists, courts, and legal analysts have long viewed a country’s capacity to enter into international pacts as an essential element of national sovereignty.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn1art2 " See, e.g., Emer De Vattel, The Law of Nations, or Principles of the Law of Nations, Applied to the Conduct and Affairs of Nations and Sovereigns 67 (Liberty Fund ed., 2008) (originally published 1758) (defining “what is meant by a nation or state” and including the ability to be “susceptible of obligations and rights” ). See also (U.K., Fr., Italy, Japan v. Germany), Judgment, 1923 P.C.I.J. (ser. A) No. 1, at 25 (Aug. 17) ( “[T]he right of entering into international engagements is an attribute of State sovereignty.” ); Anne Peters, Treaty-Making Power, in 10 The Max Planck Encyclopedia of Public International Law 57 (Rudiger Wolfrum ed., 2012) ( “Treaty-making power is often considered as a corollary, or as a fundamental attribute, of the international legal personality understood as the ability to have rights and obligations under international law.” ); Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 13 (1963) (describing the “capacity to enter into international relations with other states” as one of the traditional criteria necessary for independent statehood). ") Under the British system of treaty-making, the power to conclude and ratify treaties falls within the prerogative of the Crown.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn2art2 " See James Crawford, Brownlie’s Principles of Public International Law 63 (8th ed. 2012). See also 1 William Blackstone, Commentaries on the Laws of England 257 (Lippincott ed., 1859) ( “It is also the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes.” ). In modern usage, “the Crown” generally refers to the Executive Branch of the British government rather than an individual monarch. See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 75 & n.290 (1979) [hereinafter Bestor, Respective Roles]. ") After the United States achieved its independence from Great Britain, the treaty-making power was transferred to the newly established Congress under the Articles of Confederation.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn3art2 " Articles of Confederation of 1781 art. IX, para. 1. ") But the United States soon faced practical difficulties in attempting to negotiate treaties through a large legislative body.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn4art2 " See Bestor, Respective Roles, supra note 2, at 49–72. ") And even when the national government was able to conclude treaties, the new nation often found itself unable to perform its treaty obligations without the cooperation of the state governments.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn5art2 " See . ")

By the time of the Constitutional Convention, the delegates had largely come to agree that the national government required a stronger power to enforce treaties throughout the United States, but there were many differences of opinion as to where the newly enhanced treaty power should reside.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn6art2 " See, e.g., 2 The Records of the Federal Convention of 1787 297, 392–93, 495, 498–99, 438, 540–41, 538–50, 638 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (debate over treaty-making power during the Constitutional Convention); 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 263–65 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (discussion of treaty-making power during the South Carolina ratifying convention); id. at 306 (statements concerning the treaty-making power by Alexander Hamilton to the New York ratifying convention); 2 Documentary History of the Ratification of the Constitution 563 (Merrill Jensen et al., eds.) (arguments concerning the Treaty Clause to the Pennsylvania ratifying convention). ") In August 1787, the Committee of Detail proposed an early draft of the Constitution that would have provided the Senate alone with the power to make treaties.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn7art2 " See 2 Farrand’s Records, supra note 6, at 176, 183. ") But the delegates raised widespread objections to the provision.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn8art2 " Id. at 393 ( “Mr. [Edmund] Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject[.]” ). See also Bestor, Respective Roles, supra note 2, at 93–96 (discussing objections to the Senate the exclusive treaty-making authority). ") Some delegates proposed that treaty-making include a role for the President or be granted to the President exclusively.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn9art2 " For example, John Mercer of Maryland argued that the “Senate ought not to have the power of treaties” at all, contending that the power should reside in the Executive alone. 2 Farrand’s Records, supra note 6, at 297. And James Madison argued that “the President should be an agent in Treaties” because “the Senate represented the States alone” rather than the federal government. Id. at 392–93. ") Others argued that both chambers of Congress should be included in the process.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn10art2 " See id. at 538 (motion by James Wilson of Pennsylvania to require the advice and consent of both chambers of Congress before conclusion of a treaty). ") Ultimately, the delegates decided that the Executive Branch was best equipped to act with the confidentiality and efficiency necessary for treaty negotiations.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn11art2 " See id. at 499 (proposal by the Committee of Postponed Parts to allow presidential participation in treaty-making). See also The Federalist No. 75 (Alexander Hamilton) (explaining the rationale for the “union of the Executive with the Senate” in treaty-making); The Federalist No. 64 (John Jay) ( “[W]e see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from [the Senate’s] talents, information, integrity, and deliberate investigations, on the one hand, and from [the President’s] secrecy and despatch on the other.” ). ") In the Federalist No. 64, John Jay expanded on this rationale, arguing that individuals with useful information in treaty negotiations would “rely on the secrecy of the President, but . . . would not confide in that of the Senate, and still less in that of a large popular Assembly.” [12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn12art2 " The Federalist No. 64 (John Jay). ")

While the delegates to the Constitutional Convention concluded that the President should play a role in treaty-making, they also decided that no single component of the government should have the power to bind the United States to a treaty.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn13art2 " See, e.g., 2 Debates in the Several State Conventions, supra note 6, at 507 (statement of James Wilson) ( “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.” ). ") Because of treaties’ dual nature as tools of foreign policy and part of the law of the land, the Federalist Papers describe treaty-making as a “peculiar” combination of two functions that did not fit neatly into the founding era understanding of separation of powers.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn14art2 " See The Federalist No. 75 (Alexander Hamilton) ( “[T]he particular nature of the power of making treaties indicates a peculiar propriety in that union” of the Executive with the Senate in making treaties.). ") In the Federalist Papers, Alexander Hamilton and John Jay argued that treaty-making contains elements of executive power because it involves diplomacy and the management of foreign relations.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn15art2 " Id. ( “The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions[.] . . . [T]he ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation[.]” ); The Federalist No. 64 (John Jay) (discussing the benefits of authorizing the President to negotiate treaties). ") Hamilton and Jay also believed treaty-making invokes the legislative power because treaties can have the force of domestic law.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn16art2 " See The Federalist No. 75 (Alexander Hamilton) ( “[T]he vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” ). ") As Hamilton summarized in the Federalist No. 75, the power to make treaties belongs “neither to the legislative nor to the executive.” [17](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn17art2 " Id. ") For that reason, the delegates to the Constitutional Convention saw fit to divide this dual natured power between dual branches.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-treaty-making-power#fn18art2 " Id. See also supra notes 6, 8. ")

The delegates chose to include the Senate in the treaty-making process rather than the House of Representatives because they believed the H