The Necessary and Proper Treaty Clause

The Treaty Clause of the federal Constitution declares 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.” The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. From the standpoint of original meaning, Jefferson was right.

In this article, we defend a Jeffersonian conception of the Treaty Clause. The Treaty Clause grants no power to the President that he or she does not otherwise possess by virtue of the “executive Power” vested by the first sentence of Article II (though it does grant power to the Senate). Moreover, the Treaty Clause is subject to substantial, albeit subtle, constitutional limitations on its exercise: analogously to the so-called Necessary and Proper Clause, treaties can only be used to carry into effect other federal powers through necessary (reasonably tailored) and proper (proportionate and rights-regarding) means. The crux of our argument is structural. The Treaty Clause is located in Article II. All of the powers granted to the President in Article II stem from the Vesting Clause of that Article. The subsequent provisions in Article II such as the Treaty Clause, notwithstanding their occasional grammatical formulations as seeming grants of power, merely clarify, qualify, and/or limit that basic power grant. Once the Treaty Clause is understood as a clarification and qualification on an otherwise-granted “executive Power,” its implementational character follows directly. Executive power by its nature is generally implementational and therefore can only effectuate other federal powers, even without textual specification to that effect. Similarly, executive power is by its nature subject to the principle of reasonableness, which requires exercises of delegated implementational power to be measured, proportionate, and rights-regarding, even without textual specification. The nature of the treaty power as an aspect of the Article II executive power serves as an implicit “necessary and proper” limitation on the exercise of the power. We defend this position through textual, structural, consequentialist, and epistemological arguments.