Treaty Power

July 10, 2014

In June 2014, the United States Supreme Court in Bond v. United States had occasion to deal with the treaty power in the Constitution but refused to make a ruling which would have prevented an unreasonable expansion of federal power.

What is the treaty power?  Under Article I, §8, cl. 18, Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof”.  One such other power appears in Article II, §2, cl. 2, which states, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur”.  Read together, the two clauses empower Congress to pass laws “necessary and proper for carrying into Execution...[the] Power to make Treaties”.

A plain reading of the Constitution allows Congress to pass laws necessary and proper to help the President “make treaties”.  Once the treaty is made, Congress has no further power to execute the treaty.  However, some scholars, but by no means all, take the position that, if the treaty requires congressional action to execute the provisions thereof, Congress has the power to adopt those provisions.  This means, in effect, that to implement provisions required by a treaty, Congress has a general police power over the American people unrestrained by the limited powers granted by Article I.  This argument is made even if the implementing provisions deal mostly with domestic matters.

It is clear from cases that the treaty-making power applies only to matters of international intercourse.  The treaty power provides no support for using treaties to regulate purely domestic affairs.  A common refrain from the many cases of the Supreme Court on the subject is that the treaty power “extends to all proper subjects of negotiation with foreign governments” and, by implication, does not extend to domestic matters.  Any effort to extend the treaty power to domestic matters, unless they involve legitimate international concern, should be prohibited.  I agree with Justice Thomas who said:

In an appropriate case, I would draw a line that respects the original understanding of the Treaty Power.  I acknowledge that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.  But this Court has long recognized that the Treaty Power is limited, and hypothetical difficulties in line-drawing are no reason to ignore a constitutional limit on federal power.


For the foregoing reasons, I believe it also appropriate to propose an amendment to restrict the treaty power of Congress to enable the making of treaties but requiring that treaties be limited to international matters and be self-executing.


John Cogswell, Founder and Manager