The Treaty Power and the Necessary and Proper Clause

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

As an initial matter, this position seems strange. After all, a basic purpose of the Constitution was to allow for enforcement of US treaties throughout the country. If Congress could not carry into execution the treaty, then the main enforcement method would be to place the obligations into the treaty itself (which, if it is self executing, is the law of the land), but many provisions for enforcement, such as criminal penalties,are not typically placed into treaties.

One reason why one might read Congress’s authority narrowly is if one was concerned about the federalism implications of such authority. But if the Treaty Power is already confined to matters involving intercourse with foreign nations, one need not worry about Congress exercising unlimited authority. Instead, Congress would be restricted to enforcing treaties involving intercourse with foreign nations. And a check on expansive treaties would be that they required two thirds of the Senate to ratify – a Senate that was initially elected by the State legislatures and therefore was particularly representative of state interests.

The main argument for concluding that Congress does not have the power to enforce treaties is textual. From Justice Scalia’s concurrence:

Start with the phrase “to make Treaties.” A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of “two thirds of the Senators present.” That is true of self-executing and non-self-executing treaties alike; the Constitution does not distinguish between the two. So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate “to make” a Treaty cannot possibly mean to “enter into a compact with a foreign nation and then give that compact domesticlegal effect.” . . . Upon the President’s agreement and the Senate’s ratification, a treaty—no matter what kind—has been made and is not susceptible of any more making.

How might Congress have helped “carr[y]” the power to make the treaty—here, the Chemical Weapons Conven­tion—“into Execution”? In any number of ways. It could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for abevy of spies to monitor the treaty-related deliberations of other potential signatories.

Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture.

My sense of this textual interpretation is that it shows at best that the language is ambiguous. It is possible that Congress’s power to carry into execution the President’s (and Senate’s) Treaty Power was limited to negotiating the treaty and other related matters. But it is also possible it meant to enforce the actual treaty. It seems permissible to speak of carrying the power to make a treaty into execution by enforcing that treaty. This interpretation gains force from the fact that in England, the King made a treaty and the Parliament passed legislation enforcing it. This was certainly one model that the Framers might have been following.

Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says

    “Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.”

    Under such an interpretation there is nothing that the executive and Senate may not reach / alter including the B.O.R. Consider the UN’s attempts to limit gun ownership. What if the Executive decides to enter into such an agreement and the Senate approves? what then? This is not fanciful – already prominent Dems have suggested such a thing and we have certain Black Robes arguing that we need to consider the laws and constitutions of other countries.
    So I ask again, what then???

  2. Daniel Artz says

    I’ll admit that I was highly skeptical of Scalia’s parsing of the Treaty Power with the Necessary and Proper Clause when I first read his Opinion in Bond. But, after further thought, I am convinced that Scalia got it exactly right. Limiting the power of Congress to enforce Treaties to those powers expressly granted to Congress under Article I, Section 8 of the Constitution is not an unreasonable constraint. After all, Congress already has power under Article I to “provide for the common defense and general welfare of the United States” and to “regulate commerce with foreign nations”. Those two powers alone seem to be more than adequate to enable Congress to enforce the vast majority of Treaties which the President might legitimately seek to enter into. It seems beyond question that treaties for mutual defense, military assistance, peace treaties ending armed conflict, even treaties dealing with international laws of war, such as the Geneva Convention or the Chemical Weapons Treaty, all fit well within the context of “the common defense,” and thus appropriate subjects for both a treaty and Congressional exercise of power. Similarly, treaties dealing with tariffs, free trade agreements, agreements governing the resolution of international trade disputes, the enforcement of foreign judgments, the law of the sea with respect to commercial transport, the treatment of foreign nationals when in the U.S. (e.g., the Vienna Convention as to access to foreign consulates), even matters such as the regulation of migratory waterfowl, and a host of other matters, all fit quite comfortably within Congress’s power to regulate trade with foreign nations. So, if you think it is essential that Congress must have independent authority under the Necessary and Proper Clause to enact legislation to enforce treaties, please describe a treaty obligation which you believe is BOTH: (1) an appropriate subject for a treaty under the Treaty Power; and (2) beyond the power of Congress to legislate under the other provisions of Article I, Section 8. I can’t think of any. If such a treaty were to be approved where Congress lacked the authority to enforce it under its Section 8 powers (separate and apart from the Necessary and Proper Clause), that might well be reason to doubt whether it was an appropriate subject matter for a treaty.

    • gabe says

      OK, so will someone answer my question?

      what are the limits to the Treaty Power and consequently Congress’s ability to enact enabling legislation.
      Let us suppose for the moment that the Un prevails in its “gun restriction” efforts or that, heaven forbid, Islamists compel us to adopt some variant of Sharia Law, may congress, indeed, may the Executive legitimately enter into an accord / treaty that would limit 1st or 2nd Amendment rights?

  3. Daniel Artz says

    One of the benefits of Scalia’s construction of the Treaty Power and the Necessary and Proper Clause is that the answer to your question would be very clear cut; since Congress has no power under Article I, Section 8 to adopt legislation regulating the domestic ownership of guns (or rather, it wouldn’t have, but for the unwarranted expansion of the Commerce Clause), or to establish a state religion, it would have no power to enact legislation to enforce either treaty, without having to rely upon either the First or Second Amendment. But, if you assume that the Necessary and Proper Clause provides an independent authority for Congress to enforce treaties, you are faced with a conflict in the Constitution; Congress’s power to enforce a treaty vs. First and Second Amendment limits on its authority to establish a religion or infringe the right to bear arms. While I would certainly hope that rights granted under the BOR would trump Congressional power to enforce treaties, or that the Supremacy Clause would be construed such that treaties requiring any violation of explicit Constitutional rights would not be deemed to be made “pursuant to” the Constitution, I am not certain of either outcome.

    • gabe says


      Thx! it is as I feared – and that fear was reinforced by Pro Rappaport’s conclusions in his 2 essays.

    • Daniel Artz says

      A treaty purporting to outlaw capital punishment would also raise significant federalism issues. Even assuming that Congress could pass a law to enforce such a treaty, I doubt very much whether it would be enforceable against any of the States.

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