Preface - Treaties

Treaties made pursuant to the Constitution are the supreme law of the land on an equal footing with federal legislation. When Congress passes legislation implementing a treaty on the internal, domestic level, [such as the Endangered Species Act, Migratory Bird Act, etc.,] such legislation or any portion of the treaty has no superior status to other federal legislation and is naturally constrained by the limits of Congress' constitutionally delegated powers. Both implementing legislation and treaty provisons may be superceded by subsequent modifying or annulling federal legislation. The duty of the Courts "is to construe and give effect to the latest expression of the sovereign will."

Neither the executive, nor Congress, can enlarge their own specific charter of delegation of authority from the sovereign people through agreement with external "third parties." The Executive has only political power over the administration of its various departments. The authority of the departments themselves is delegated by Congress and, consequently,  restrained by the charter of delegation to Congress from the sovereign people.

As was said by Alexander Hamilton:

"[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

In implementing a treaty, Congress cannot abrogate the structural separation of authority under constitutional principles of dual sovereignty and assume either reserved State powers or powers reserved to the people. Under the principles of dual sovereignty, Congress may not impose legislation upon the States, although  it may recommend implementing legislation to the States. Federal legislation must act directly upon individuals in accordance with the limits of  its delegated constitutional powers. The Courts will nullify State legislation that is contrary to "self-executing" treaty provisions or construe such legislation in harmony with a treaty.

Under the original Constitution, Senators were elected by the State Legislatures, bringing the States directly into the Treaty making process through Constitutional provisions for "advice and consent" and concurrence (ratification) by the 2/3 of the Senate. The provision for election of Senators was altered by Constitutional Amendment XVII in 1913 to reflect the "popular" vote of the people of the State. This has the potential for individualistic implementation of treaty provisions by the States when the authority falls within the sphere of their "reserved powers" and not within federal authority.   

During the past century, particularly as pertains to environmental treaties, the Court appears to have detoured from these principals to uphold federal legislation in derrogation of the reserved State police powers on the basis of entirely separate federal "treaty powers" as an authority for federal implementing legislation necessitated by "national interest."  

In 1803, the Court stated in Marbury v. Madison, one of the first landmark cases of the Supreme Court:

"All laws which are repugnant to the Constitution are null and void."

As stated by Justice McLean in Mayor, Aldermen and Inhabitants of New Orleans v. U.S., 35 U.S. 662 (1836):

"The government of the United States, as was well observed in the argument, is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power."

..."It is very clear, that as the treaty cannot give this power to the federal government, we must look for it in the constitution; and that the same power must authorize a similar exercise of jurisdiction over every other quay in the United States. A statement of the case is a sufficient refutation of the argument."

As stated by Justice Daniel in the License Cases, 46 U.S. 504 (1847):

"Laws of the United States, in order to be binding, must be within the legitimate powers vested by the constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no 'authority of the United States,' save what is derived mediately or immediately, and regularly and legitimately, from the constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State...."

As stated by Justice Field in De Geofroy v. Riggs, 133 U.S. 258 (1890):

"...That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation, and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries, the residence of citizens of one country within the territory of the other naturally follows; and the removal of their disability from alienage to hold, transfer, and inherit property, in such cases, tends to promote amicable relations. Such removal has been, within the present century, the frequent subject of treaty arrangement. The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Railroad Co. v. Lowe, 114 U.S. 525, 541, 5 S. Sup. Ct. Rep. 995. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 J.S. 483; 8 Ops. Atty. Gen. 417; People v. Gerke, 5 Cal. 381.

Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936):

"It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted."

In 1956, the U.S. Supreme Court in Reid v. Covert observed that the Court has "regularly and uniformly recognized the supremacy of the Constitution [U.S.] over a treaty."