U.S. Treaty Practice and The Constitution:Limitations on Executive Authority

Abstract

Even though an unequivocal preference for “joint possession” of authority between the Executive and Legislative branches is reflected in the United States’ founding documents, treaty-making functions remain a constitutionally convoluted domain. Though United States v. Belmont solidified judicial validation of non-treaty international agreements, the “political question” doctrine in Goldwater v. Carter has only expanded the Executive branch’s authority over the arena. Despite the overturning of the Chevron doctrine in Loper Bright, judicial restraint in foreign affairs has left the Executive Branch’s authority largely unchecked, particularly in treaty-making. Congressional acquiescence in this regard has exacerbated the situation further. Present pragmatic political realities have made the two-thirds majority threshold required for Article II treaties virtually unattainable, which explains Congressional inaction. However, the National Defense Authorization Act of 2024 has set a modern-day precedent of unified Congressional action in reclaiming institutional authority.

This paper analyzes the interactions of American constitutional morality with international law, particularly the United States’ selective embrace of customary international law, assessing the resulting implications for the enforceability of treaty related frameworks and obligations among sovereign states.