The Constitution provides that the President “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” The framers expected the Senate to play a major role in the treaty-making process. In fact, most drafts at the Constitutional Convention gave the Senate the power to make treaties, and it was not until 10 days before the convention adjourned that the President was given the major role in negotiating treaties.
The Constitution's requirement of consent by the Senate reflected cocerns that treaties reached by the national government might injue the interests of some of the states. In 1786 the Congress under the Articles of Confederation had approved the Jay-Gardoqui Treaty, which conceded American navigation rights on the Mississippi River to Spain. Westerners had seen this treaty as sacrificing their interests in favor of those of new England merchants.
Does the Senate['s advice come only when the Presidnet submits a treaty draft to the Senate? Or can the Senate advise the Pesident while he is negotiating the treaty? The language of the Constitution does not divide treaty making into separate states for negotiation and Senate consent. Rather, the President “makes” the treaty with the advice and consent of the Senate, which seems to imply a role for the Senate in the negotiations.
George Washington set the early precedents. While negotiating an Indian treaty, he suggested that “the business maypossibly be referred to their [the Senate's] deliberation in their legislative chamber.” Washington met with the Senate on August 22, 1789, to obtain its advice. The senators decided they would not commit themselves to any treaty draft that Washington had to return two days late in order to obtain their consent, but the experience of consultation soured him. He never again consulted in advance with the Senate in person. When he negotiated the Jay Treaty with Great Britain, he consulted with Senate leaders in writing and submittd the full treaty to the Senate only after it was completed.
Since Washington's time, practices have varied. Until 1815 it was the custom for Presidents to send a speical message to Congress before starting negotiations and again when treaty drafts had been concluded. Since then, some Presidents have consulted informally with congressional leaders before negotiations, as President Chester Arthur did in 1884 on a treaty with the independent inslands of Hawaii. Many have given extensive briefings to senators while negotiations were in progress, as Secretary of State Dean Acheson did with key senators about the North Atlantic Treaty Organization treaty of 1949. One senator, Walter George, actually wrote part of the treaty for the administration.
The composition of the negotiating team may help the President secure Senae consent. President Harry Truman used a Republican, John Foster Dulles, as his chief negotiator for the treaty with Japan at the end of World War II to give it bipartisan support. For arms control negotiations some Presidents hav given senators an informal “veto'” over members of their negotiating teams or allowed senators to send staff members to negotiating sessions as observers. Since 1962 members of Congress have been adviser on trade agreement negitiations, and President Jimmy Carter named 26 senators as “official advisers” to his arms negotiating team at Geneva in 1977 and 1978.
Sometimes, Presidents have even put members of Congress in their negotiating delegations, as William McKinley did when he included three senators in his Treaty of Paris delegation in 1900.
President Woodrow Wilson did not favor this kind of collaboration: he argued that Presidents should negotiate treaties by themselves and then submit them to the Senate. When he negotiated the Treaty of Versailles in 1919, he did not include a single member of the Senate in his delegation, nor did he provide Congress with any information about negotiations. The Senate defeated the treaty. Jimmy Carter almost committed the same error, failing to include senators on his negotiating team or provide them with briefings when he negotiated the Panama Canal Treaty in 1977. To save the treaty in 1979, Carter agreed to amendments negotiated by several senators with the panamanian government.
The tow-thirds provison by which the Senate gives its formal consent has been interpreted since 1953 to mean two-thirds of a quorum (the minimum number of members necessary to transact business). The Senate may amend the treaty before giving its consent, in which case the new language must be accepted by the other nation. The Senate has also altered treaties by means of reservations, which indicate a substantial change in the interpretation of treaty provisions (the new document is sent to the other nation but does not require its consent) and understandings, which clarify relatively minor aspects of the treaty's implementation.
Sometimes the Senate has amended treaties so severely that it caused the other nation to reject the agreement. In 1824, when the United States signed a treaty with Great Britain to suppress the international slave trade, pro-slavery senators so severely amended the treaty that the British rejected the agreement. At other times, nations have accepted Senate amendments as the price necessary for Senate approval. The Supreme Court upheld the Senate's right to amend a treaty, in the 1869 case of Haver v. Yaker, when the Court ruled that “a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. If so, before it becomes a law, the Senate… must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it.”
After the Senate consents to a treaty, the President may ratify it by signifying to the other nation that it is in effect, or he may withold ratification if he decides not to implement it. He may withhold ratification because circumstances have changed, because he objects to amendments, or because he foresees problems with the other nation's adherence to it.
Between 1789 and 1989 the Senate approved some 1,500 treaties, or about 90 percent of the total it received. It rejected only 20 treaties by formal vote, including a treaty to annex Texas in 1844 and Wilson's Treaty of Versailles in 1919. The other unratified treaties were either withdrawn by the President or never acted upon by the committees. Although most treaties since World War II have been adopted, the Senate has sometimes blocked or amended important Presidential initiatives. These include the heavily amended panama Canal Treaties of 1879 and the Strategic Arms Limitation Agreements with the Soviet Union that Jimmy Carter withdrew from the Senate after the Soviet invasion of Afghanistan in 1979.
Proposals have been made to lower the approval requirement to three-fifths or an absolute majority of senatos present. Another idea is to prevent any amendments or reservations by senators. Such changes would require a consitutonal amendment, and the Senate is unlikely to agree to limitatons onits treaty powers.
Treaty obligations can be terminated in a variety of ways. Congress may pass a law inconsistent with the terms of the treaty, an dthe courts will enforce the law at the expense of the treaty. Congress can pass a joint resolution that directs the President to abrogate, or nullify, a treaty. Or the President can request a Senate resolution consenting to abrogation of a treaty. Finally, the President can abrogate a treaty unilaterally, witout obtaining the consent of Congress or the Senate, as Jimmy Carter did in 1978 iwth the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan).
See also Advice and consent; Executive agreements
Sources
- Louis Fisher, Constitutional Conflicts between Congress and the President (Princeton, N.J.: Princeton University Press, 1985).
- Robert C. Byrd, “Treaties,” in The Senate, 1789–1789: Address on the History of the United States Senate,
vol. 2 (Washington, D.C.: Government Printing Office. 1991)
