Article 2, Section 2, Clause 2 — Scope Of 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.

The Articles of Confederation limited the scope of the treaty power by carving out two acts that the United States could not take in a treaty: limiting the states’ power to impose “imposts on duties on foreigners” and “prohibiting the exportation or importation of any species of goods or commodities whatsoever[.]” [1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn1art2 " Articles of Confederation of 1781, art. IX, para. 1. ") The Constitution’s Treaty Clause, by contrast, contains no such restrictions.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn2art2 " See U.S. Const. art II, § 2, cl. 2. ") During the Constitutional Convention and the ratification debates, some delegates expressed concern that the treaty power was too broad and subject to abuse.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn3art2 " See, e.g., 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 509 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (George Mason arguing for more stringent limits on the treaty power, stating “[t]he President and Senate can make any treaty whatsoever. We wish . . . to guard, this power[.]” ); id. at 504 (Patrick Henry calling the treaty power so broad as to be “dangerous and destructive.” ); 2 The Records of the Federal Convention of 1787, at 393 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (statement of James Wilson) ( “Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.” ). ") But James Madison and others defended the structure of the treaty power, arguing that it was not possible to enumerate all circumstances in which the government could misuse the treaty power,[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn4art2 " See, e.g., 3 Debates in the Several State Conventions, supra note 3, at 514–15 (James Madison arguing that an attempt to “enumerate all the cases” in which treaty power should be restrained “might, and probably would be defective” ); id. at 504 (statement of Edmund Randolph: “It is said there is no limitation of treaties. I defy the wisdom . . . to show how they ought to be limited.” ). ") and that other checks and balances would provide appropriate limitations.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn5art2 " See, e.g., id. at 516 (James Madison arguing that impeachment, criminal convictions, and regular elections in the Senate were checks on abuse of the treaty power.). ") In the end, the Framers did not include express limitations in the Treaty Clause on the types of subjects that may be addressed in a treaty.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn6art2 " See U.S. Const. art. II, § 2, cl. 2. See also Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), reprinted in 20 Papers of Alexander Hamilton 6 (Harold C. Syrett ed., 1974) ( “A power ‘to make treaties,’ granted in these indefinite terms, extends to all kinds of treaties and with all the latitude which such a power under any form of Government can possess.” ). ")

Despite the absence of subject matter limitations in the Treaty Clause’s text, there have been suggestions since the founding era that the treaty-making power is implicitly limited to matters that traditionally have been the subject of intercourse between sovereign nations.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn7art2 " See, e.g., 2 Debates in the Several State Conventions, supra note 3, at 378 (statement of James Madison: “The object of treaties is the regulation of intercourse with foreign nations, and is external.” ); Thomas Jefferson, A Manual of Parliamentary Practice 310 (Samuel Harrison Smith ed., 1801) ( “[T]he Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot otherwise be regulated.” ). ") The status and scope of such a limitation, however, remains unclear. In several cases from the turn of the nineteenth century, the Supreme Court stated that the treaty power is not limited to a set of enumerated subjects in the way that Congress’s legislative powers are so constrained.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn8art2 " See infra note 10. ") Yet, in those same cases, the Court suggested that the treaty power might only extend to topics that “properly pertain” to foreign relations[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn9art2 " See Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) ( “There can be no question as to the power of the government of the United States to make the treaty with Persia or the Consular Convention with Italy. The treatymaking power is broad enough to cover all subjects that properly pertain to our foreign relations[.]” ). ") or are the “proper subjects” [10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn10art2 " See Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) ( “The treaty-making power of the United States is not limited by any express provision of the Constitution, and, . . . it does extend to all proper subjects of negotiation between our government and other nations.” ); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872) ( “[T]he [treaty] power is given, in general terms, without any description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty.” ). See also De Geofroy v. Riggs, 133 U.S. 258, 267 (1890) ( “[I]t 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.” ); Ross v. McIntyre, 140 U.S. 453, 463 (1891) ( “The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments.” ); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840) (Taney, C.J.) ( “The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty.” ) (affirmed by equally divided court). ") of negotiations between the United States and foreign nations.

Some jurists and commentators assert that the only proper subjects for treaties under the Constitution are “matters of international concern.” [11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn11art2 " The “international concern” requirement is most often associated with remarks by Charles Evans Hughes shortly before Hughes became Chief Justice of the Supreme Court, and after he served as an Associate Justice and as Secretary of State. See Statement of Charles Evans Hughes, 1929 Am. Soc. Int’l. L. Proc. 194, 194–96 (1929). See also infra notes 12–14, 20. ") Under this view, treaties must relate to “external concerns,” as distinguished from “purely internal” subjects.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn12art2 " See, e.g., Power Auth. of N.Y. v. Fed. Power Comm’n, 247 F.2d 538, 542–43 (D.C. Cir.1957) ( “No court has ever said . . . that the treaty power can be exercised without limit to affect matters which are of purely domestic concern and do not pertain to our relations with other nations.” ), vacated as moot, 355 U.S. 64, 78 (1957) (per curiam); Hughes, supra note 11, at 194 ( “[The treaty power] is not a power intended to be exercised . . . with respect to matters that have no relation to international concerns.” ); Treaties and Executive Agreements: Hearing on S.J. Res. 1 Before the Subcomm. of the S. Comm. on the Judiciary, 84th Cong. 183 (1955) (statement of John Foster Dulles, Sec’y of State) (stating that a treaty cannot regulate issues that “do not essentially affect the actions of nations in relation to international affairs, but are purely internal” ). ") In 2014, three Supreme Court Justices joined a concurring opinion arguing that the treaty power “can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs.” [13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn13art2 " See Bond v. United States, 572 U.S. 844, 884 (2014) (Thomas, J., concurring in the judgment joined by Scalia & Alito, JJ.). ") But the Court has not ruled on the issue, and there is no consensus on whether the Constitution contains such a limitation.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn14art2 " For example, the authors of the Restatement of Foreign Relations Law changed their view of the “international concern” requirement in each iteration of the Restatement. See Restatement (Second) of Foreign Relations Law § 117(1) (1965) ( “The United States has the power under the Constitution to make an international agreement if . . . the matter is of international concern[.]” ); Restatement (Third) of Foreign Relations § 302 cmt. c (1987) ( “Contrary to what was once suggested, the Constitution does not require that an international agreement deal only with ‘matters of international concern.’” ); Restatement (Fourth) of Foreign Relations Law § 312 reporters’ n.8 (2018) [hereinafter Fourth Restatement] ( “Unlike in the prior two Restatements, this Section does not take a position on whether there is some sort of subject-matter limitation on the treaty power. . . . The Reporters for the present Restatement concluded that the issue had not been sufficiently addressed in judicial decisions and other relevant legal materials to warrant taking a definitive position.” ). ") Nor has the Supreme Court defined what, if any, matters are insufficiently international in nature to be an improper subject for a treaty.

To the extent there once was a common understanding of the line between internal and external matters, changes in international treaty practice have complicated this distinction.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/scope-of-treaty-making-power#fn15art2 " Some scholars have argued that the divide between internal and external affairs was not well-defined even in the Founding era. See, e.g., David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit o