Treaty Clause

Concluding that various clauses in the Constitution–including the Treaty Clause–provide textual support for the idea that the President may enter international agreements in certain circumstances but contending that the text is largely silent on which circumstances allow such agreements.

Examining the relationship between treaty withdrawal and war powers through an originalist lens and concluding that the Constitution supports a role for Congress in treaty withdrawal.

Arguing that an examination of the development of American treaty termination practices illustrates how historical practice can inform modern understanding of constitutional matters.

Exploring the historical foundations and doctrinal developments of the Origination Clause and the Treaty Clause and concluding that tax treaties are constitutionally problematic.

Suggesting that the text of the Treaty Clause, evidence of original intent, and evolving practice all permit the Senate to give its advice and consent to a treaty in advance of a treaty’s negotiation.

Positing that the Constitution’s text and structure–particularly the Supremacy Clause–support a default rule of self-execution for treaties, making them directly enforceable in the courts.

Arguing that the Bush Administration’s claim that the President has the power to terminate and suspend treaties has no support in the text or structure of the Constitution.

Arguing that the original public understanding of the Treaty Clause was that the clause merely confirmed, clarified, and qualified the President’s power to make treaties, but that it did not grant a new treaty-making power to the President.

Arguing that the Constitution’s text supplies a robust four-part framework for foreign affairs powers and that this framework comports with foreign affairs powers practice before, during, and after the Constitution’s ratification.

Critiquing Bruce Ackerman’s “constitutional moments” approach and Laurence Tribe’s textualist approach to foreign relations law and proposing a “constitutional increments” model in which constitutional history and practice form the basis for constitutional interpretation of the treaty power.

Examining the writings of leading early American thinkers and concluding that the Constitution gives the President central responsibility for the foreign policy of the United States.

Arguing that the Framers intended treaties to be self-executing upon ratification.

Concluding that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress.

Concluding that the original constitutional design allows the President to undertake international obligations through minor “nontreaty” agreements, but that the President does not have the sole authority to bind the United States to significant international obligations.

Offering a textual and structural analysis of the Treaty Clause that supports the idea that the clause is indeterminate.

Examining the origins of the phrase “advice and consent” in the Treaty Clause and concluding that the Framers intended the Senate to have the power to suggest diplomatic instructions or broad negotiating goals to the President and that the President would have the power to ignore the Senate’s suggestions.

Arguing that the Constitution contains clear textual and structural constraints on treatymaking and constitutional amendment.

Arguing that “constitutional moments” have transformed the meaning of the Treaty Clause and legitimized the congressional-executive agreement in treaty-making and that such an understanding is appropriate because the constitutional text can plausibly be construed to support such a theory.