The Treaty Power and American Federalism

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that “the federal power over external affairs [is] in origin and essential character different from that over internal affairs.” For a variety of reasons, however, the distinction between domestic and foreign affairs has been eroding in recent years, and this trend is likely to continue. As a result, there will be an increasing need to reexamine the differential treatment of federal foreign affairs powers. This Article reexamines one example of such differential treatment – the purported immunity of the treaty power from federalism limitations. The Constitution provides that 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.” Since the adoption of the Constitution, the President has exercised this power to commit the United States to hundreds of international obligations. The President also has committed the United States to thousands of additional obligations without going through the Article II process, by means of so-called “executive agreements.” The treaties entered into by the President are deemed by the Constitution to be part of the supreme law of the land, and the Supreme Court has construed this supremacy to extend to executive agreements as well. This means, among other things, that treaties and executive agreements preempt inconsistent state law. Because of the supremacy of treaty law over state law, the treaty power implicates important issues concerning this country’s federal system of government.