Ascertained in a Different Way: The Treaty Power at the Crossroads of Contract, Compact, and Constitution

Abstract

The Constitution's Treaty Power is a facially unlimited grant of power to the President and Sentate that, like ordinary legislation, can have the force of internal law. The potential abuse of the Treaty Power as a legislative tool and the limits, if any, that the Constitution imposes thereon have animated debates since the Federal Convention of 1787. The Rehnquist Court's revival of limitations on the Commerce Clause make the Treaty Power a potentially attractive alternative legislative tool. This raises the question: to what extent can the President and Senate constitutionally accomplish by treaty what the President and Congress cannot accomplish by ordinary legislation?

This article attempts to describe the constitutional limits on lawmaking by treaty by arguing that the limits of the Treaty Power are, in the words of Justice Holmes, ascertained in a different way from those of ordinary legislation. Specifically, this article argues that the Constitution regards the Treaty Power as a contractual power, not as a legislative power. Because the Treaty Power is a legislative means to contractual ends, not a contractual means to a legislative ends, the limits on the Power are ascertained not by reference to treaty subject matter, but to good faith bargaining between contracting parties.

Keywords: Treaty Power, Compact Clause, Constitution