By Vanessa Guillermety
Over the past couple months we have studied a number of cases dealing with treaties. This area seems to be at the heart of the interplay of Congress, the Executive and the States. The division of authority in the international agreement process provided by the Constitution seems particular relevant when considering the “requirements for effective foreign policy.” See John F. Murphy. “Treaties and International Agreements Other Than Treaties: Constitutional Allocation of Power and Responsibility Among the President, the House of Representatives, and the Senate” Kansas Law Review (lead article). Reprinted in Appendix L, Commission on the Organization of the Government for the Conduct of Foreign Policy. (1975); http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239.
The Court has been quite willing to enter the dispute when it deals with the rights, if any, a State has in deciding what a particular treaty stands for or when a particular State enacts a law in contradiction to a treaty as evidenced by Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816) and Missouri v. Holland, 252 U.S 416 (1920). But to the extent of a controversy as to the division of power given to the Executive vis-à-vis Congress to make agreements or treaties should the Court provide some flexibility as to the constitutionality of those actions, allowing the President to make executive agreements although such power is not expressly provided to the Executive in the Constitution? Should the Court simply let the two branches battle it out?
Article I, § 10, cl. 1 denies treaty-making power to the states; Article II, §2, cl. 2 provides the president with the power to make treaties with the “advice and consent of the Senate” and two-thirds of the senators present concur; Article III, § 2, cl. 1 provides the judiciary with jurisdiction over treaties; Article VI, cl. 2. Provides that the Constitution and the laws of the United States as well as all treaties made under the Authority of the United States are the “supreme law of the land”.
There is no expressly given right to the President as to executive agreements or international agreements without the approval of the Senate. Yet, these agreements are made on a daily basis. See Murphy; http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239. Support for their validity is found in the tacit consent of Congress. Dames & Moore v. Regan provides support for this trend or procedure. The Court there relied on the implied congressional approval when it upheld President Regan power to take certain actions in obtaining the release of American hostages from Iran. Dames & Moore v. Regan, 453 U.S. 654 (1981). The controversy there, however, dealt with how the actions of the President affected the interests of an American company abroad. Justice Jackson’s three categories in Youngstown Sheet & Tube Co. v. Sawyer suggest that the President’s actions may be fall within his constitutionally allocated powers depending on whether he acts pursuant to an express authorization, or absence of a congressional grant. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). But his actions may not be constitutionally justified if the President acts in contradiction to the express or implied will of Congress. Id. The decision in Youngstown, however, was made in reference to the President’s power to make laws and dealt with the domestic realm in which Congress arguably has more power. The decision in Dames & Moore suggests Congress through its inertia can provide support for the President’s actions, but what happens when the President makes an agreement in contradiction to Congress’s wishes in the area of international agreements?
The Court has never decided a case between Congress and the Executive, or it has never ruled on “whether an executive agreement can be made against the wishes of Congress.” (more…)