Treaty-Making Power Of Congress – Guest Essayist: Tony Williams

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In the early republic, the founding generation took the treaty-making provisions of the Constitution seriously even as they sought to define the parameters of those constitutional powers. As the first president, George Washington, in particular, tried to set the right constitutional precedents and observe the proper balance of powers with relation to the legislative branch. Although the battles over the treaty-making authority could be highly contentious, the fights took place within a constitutional framework and helped establish the principles of American foreign policy.

The treaty-making power was derived in part from the experiences of the successes and failures of the Continental Congress during the war and the Articles of Confederation. Upon declaring independence, the Americans sent commissioners to various nations and achieved its most notable success with military and commercial treaties with France in 1778. At the end of the war, the peace commissioners secured a 1783 treaty with Great Britain recognizing American independence. The precedent was set for treaties negotiated by a few individuals subject to approval by the people’s representatives in Congress. In the wake of the war, however, several states challenged national authority and sought to make their own treaties due to state sovereignty.

The treaty-making power was additionally derived from the principles of the American founding and incorporated into the Constitution.  In Article I, section 10, the Constitution banned states from making treaties because it was a power of national sovereignty. In the executive power of Article II, section 2, the Constitution authorized the president to make treaties: “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.”  This provided for the energy and dispatch in the executive branch to make treaties, subject to the approval of a supermajority of representatives of the states in the deliberative and wise upper house less subject to popular passions. In addition to the principle of checks and balances, this supported federalism by allowing the states to have a say in approving or rejecting treaties.

If the constitutional boundaries of the treaty-making power were relatively clear-cut, they were anything but clear in the partisan squabbles of the new nation.  Washington was a scrupulous constitutionalist and tried to follow it to the letter when he brought instructions for a commission to make peace with the Creek Indians to the Senate personally in the summer of 1789.  When the Senate bickered over the details and sought to appoint a time-consuming committee to study the matter, Washington fumed, “This defeats every purpose of my coming here.” The discontented president stormed off and would later submit completed treaties to the Senate for their consideration after the fact.

After a great struggle in 1793 over whether the president or Congress could issue a proclamation of neutrality in the wars raging across Europe (settled in favor of the president, while Congress retained its power to declare war), the treaty-making power became the center of controversy over the Jay Treaty in 1795 and 1796.  John Jay negotiated a treaty with Great Britain to stop the impressment of American sailors and resolve several unsettled issues from the Revolutionary War.  While Jay wrangled as many concessions as he could on the latter, he failed on the former.

In the spring of 1795, Washington reluctantly submitted the treaty to the Senate and asked that it be considered in secret.  The Senate narrowly ratified the treaty by a vote of 20-10 only after an unpopular clause limiting American trade with the British West Indies was removed.  After Washington signed the treaty, the House tried to control the treaty and demanded Jay’s papers from the negotiations.  Washington refused and asserted executive privilege. The House then tried to block the treaty with its appropriations power, but then finally passed the money to implement the treaty in early 1796.

The Pinckney Treaty with Spain was also ratified during the Washington administration and gave the United States access to the Mississippi River and duty-free trade with New Orleans that was much less controversial.

President John Adams dispatched three negotiators to France when that country seized hundreds of American vessels, but foreign minister Talleyrand demanded substantial bribes and loans to the country.  Outraged Americans demanded war and after mobilizing for the Quasi-War in the late 1790s, Adams also tried for peace and his negotiating team secured the Convention of 1800 that settled the issues between the two countries and negated the 1778 alliance.

President Thomas Jefferson shared Washington’s constitutional scruples when deliberating over the purchase of the Louisiana Territory.  He was greatly concerned that the president did not have the constitutional authority to purchase land and considered asking for a constitutional amendment.  Finally, he instead reasonably found the authority under the treaty-making power, and the Senate quickly agreed and ratified the popular purchase that doubled the size of the United States.

In the new nation, the standard of diplomacy was generally the constitutional procedure of the executive signing formal treaties subject to Senate ratification by a two-thirds vote.  A century later, even President Woodrow Wilson submitted the highly controversial Treaty of Versailles to the Senate despite the fierce opposition he anticipated from “irreconcilable” Republicans, and it went down to predictable defeat.  In recent times, however, presidents have evaded partisan opposition and defeat by making agreements not subject to the same constitutional standard and have contributed to the “imperial presidency” by avoiding the checks and balances that mark constitutional government.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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