Legal question for attorneys only, please.

From my understanding, from reading, the constitution provides authority of law to ratified treaties.
As such, the constitution is superior in authority to a treaty, correct?
As an example, if a treaty were ratified that abridged or even eliminated a right outlined in the constitution, the constitution would permit it, that part of the treaty would be void (the remainder, up to the legal issues regarding separability of the remainder, etc), correct?
Such as a ratified treaty gets ratified, congress missing a provision in it removing freedom to seek redress with one’s government, the first amendment providing for such, the constitution would stand and the treaty would fail, in that portion, upon court challenge (if it got through, as that is redress).

Thanks in advance.

The constitution is the supreme law of the land. It trumps everything, including treaties. IIRC, treaties are essentially equal in power to federal statutes.

“The treaty is … a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).

Thanks! I thought article 6 was pretty clear. :slight_smile:
But, thanks for the case law as well.

No part of the Constitution is clear without case law. :slight_smile:

Yes, the U.S. Constitution trumps treaties, Federal statutes, state constitutions, state laws, local ordinances, and all other sources of American law. Several military servicemembers argued in the Clinton years that U.S. participation in U.N. peacekeeping efforts meant that a treaty was being used to abrogate the Constitution, IIRC, but they got nowhere in court.

So, in the case of military action, such as the current UN directed and NATO executed (with NATO having a mandated military participation clause in their governing treaties, which were ratified by the US congress), which holds authority? The treaty or an ACT of congress, such as the War Powers Act?
If congress cuts funding for said participation, they’ve abrogated the treaty. As I recall, to rescind the treaty would require the same majority required to ratify it.
Or am I mistaken?

The President, as commander-in-chief of the U.S. military under the Constitution, still retains authority as to when and where to commit troops. The U.S. may choose to abrogate or opt out of a treaty, or it may (although this is certainly a last resort) violate the treaty before it does something that would otherwise be unconstitutional. Some treaties permit the President, as the de facto chief diplomat of the U.S., to unilaterally announce an abrogation or withdrawal, as President Bush did in 2001 with several such treaties, including the ABM Treaty.

My cut and pasted answer from a previous thread: Can treaties over-rule the U.S. Constitution?

In State of Missouri v. Holland, 252 U.S. 416 (1920), Missouri challenged the Migratory Bird Treaty Act of 1918, which prohibited the cathcing killing, or selling of certain birds that migrated between the U.S. and Canada, on the grounds that it was an unconstitutional interference with rights reserved to the States by the Tenth Amendment. The Court disagreed, and some particularly strong wording in Justice Holmes opinion freaked some people out:

This seemed to be saying that Congress could do an end run around the Constitution by use of the Treaty Power, so long as they found a cooperative foreign sovereign. The prospect had the States so concerned they attempted to pass the “Bricker Amendment” to the Constitution to limit Congress’ power to act under the Treaty Power. The Court in Reid v. Covert more or less put the controversy to rest, and said Holland merely stood for the proposition that the Tenth Amendment is not a bar to Congress’ use of the Treaty Power.

Reid dealt with two civilian women living overseas who were courtmartialed by military tribunals for criminal offenses. This would ordinarily be an unconstitutional violation of due process, but the government argued they were able to do so under treaties entered into with foreign powers. The Court disagreed. Justice Black stated about the Supremacy and Treaty Clauses:

So while Congress can act in some ways they ordinarily couldn’t that may intrude on State soveregnty under the Treaty Power, it cannot violate the Constution.

Broadly speaking, whatever Congress votes for military funding has the same force of law as a treaty that has been ratified, and if there is a conflict, whichever is more recent is likely to be considered controlling. That congressional vote could take different forms, too. It could include an amount expressly designated to fund the action in Libya; or it could contain a provision expressly forbidding the military to expend funds on any action in Libya; or it could say, “here’s a pile of money to carry out the military’s mission” (which may or may not include Libya). Also, even an express refusal to fund the action in Libya would not necessarily be found to abrogate the entire NATO treaty.

More specifically, I don’t think NATO has asserted that participation in Libya is mandated by the treaty (indeed, many NATO nations are not doing so). I have also seen arguments floated that the current activities by certain NATO nations in Libya is not “military action,” legally speaking, but rather are more properly considered a humanitarian intervention of some sort. I don’t know enough law in this area to know whether there’s any validity to those arguments or how seriously any of the actual nations involved might be weighing them.

I disagree – this is an issue in contention that may have no factual answer at this point. On one hand, there are examples of the appropriation of funds being viewed as an authorization for ongoing military action, principally the very late stages of the Vietnam War. On the other hand, the War Powers Resolution clearly states that authorization for military action may not be inferred from the appropriation of funds.

To the extent that there may be conflicts in the law, the test of which law applies to a certain situation also includes the specific trumping the general, along with the later in time rule. So, even if there were a treaty obligation to participate in a NATO action against Libya (which there is not), a refusal of Congress to fund the operation would not result in the the complete US withdrawal from the North Atlantic Treaty.

See the above comment. There is no requirement under the UN Charter nor the North Atlantic Treaty for the US to participate in the missions against Libya. Even if there were, a refusal by Congress to fund such an operation would not necessarily result in our complete withdrawal from the UN or NATO.

Incidentally, it’s the War Powers Act, passed by Congress over President Nixon’s veto. I don’t know why even Wiki has it wrong:

I’m afraid they don’t have it wrong.

The question seems to be answered with regard to the US but I can tell you about the UK, where this is a big area of controversy at the moment: in the UK we have an “unwritten” constitution, one of the foundations of which is that our law-making body, Parliament - the equivalent of the US Congress - is supreme. It can make any law it wants and unmake any law it wants by simple majority: if Parliament passed a bill tomorrow ordering the killing of all first-born sons, traditionally they have the right to do that, and the courts not only can’t interfere but are bound to enforce that law. As such if Parliament passes a law which conflicts with one of the UK’s international treaties, the relevant portion of that treaty is taken to have been impliedly overruled.

But everything seems to have changed since we entered the EU: our Parliament signed the European Communities Act 1972, making us subject to European law, and the position now seems to be that our Parliament cannot impliedly repeal European law; to do so it would have to expressly repeal the Act itself. A lot of people disagree or aren’t happy about that. It’s quite a big issue in the academic legal world over here.

I just don’t get that. Resolutions aren’t typically presented to the President and need no signature from him. This passed both houses, was vetoed by the President, and then passed both houses again by a supermajority. It looks, sounds and quacks like an Act of Congress.

Joint resolutions are presented to the President for signature. Joint resolutions are typically used for declarations of war, short-term appropriations acts, and various other measures that are usually limited in scope that have the force of law.

You may be thinking of a concurrent resolution, which is never presented to the President for signature, and may never have the force of law.

It is a valid act of Congress. But it’s not an Act of Congress.

It’s a Joint resolution. Those require the House/Senate approval and President’s signature or, if vetoed, approved by a House/Senate super-majority over the President’s veto. A concurrent resolution however (what you’re likely thinking of), only requires House/Senate approval and is not sent to the President. It is therefore non-binding law (cannot be enforced). Joint resolutions are binding law.

The WPR was a joint resolution. Further, it calls itself the War Powers Resolution, however, it’s exactly the same as an Act (legislation that starts as a bill, not a resolution - there is no legal difference between an Act/Joint Resolution). Lots of people, Presidents, scholars, media, everyone, call it the “War Powers Act” and that’s a perfectly acceptable name to call it.

But why a joint resolution and not an bill/Act? I don’t know. Some war stuff usually goes the joint resolution route, maybe it’s symbolic. I’d be interested in the answer, if there actually is one.

Article Six is pretty clear. But Article Two is pretty clear too. Making treaties is not an implied power. It’s very clearly granted to the government by the Constitution: “(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.”

Pravnik mentioned the case of Missouri and the ducks. Congress had enacted laws that restricted the hunting of ducks. Missouri and other states challenged these laws, saying there was nothing in the Constitution which gave Congress the power to regulate hunting ducks. The courts agreed and declared these federal hunting laws unconstitutional.

Then the United States and Canada negotiated a treaty concerning duck hunting and the treaty was enacted by Congress, along with a law to enforce it. Missouri challenged this new law, saying “I thought we settled this issue. Congress doesn’t have the power to regulate duck hunting.”

But surprisingly, the Supreme Court ruled against Missouri. The decision was that while Congress didn’t have the power to directly regulate duck hunting, it did have the power to negotiate a treaty - including a treaty that regulated duck hunting.

This is a controversial decision because it seems to imply that the federal government can do things via treaty that it would otherwise not be able to do. There are limits - Pravnik also mentioned Reid v. Covert, which says that a treaty cannot violate a directly enumerated Constitutional right.

Thanks for the explanation on joint resolutions. Never knew that before.

The implication of a bill being submitted to be made into a law is that you’re proposing a permanent and ongoing change. A resolution is seen more as addressing a transitory situation - something like a war or a budget issue.

I have studied, a bit, the system in the UK. Mostly, to more easily converse with British subjects that I associated with whist abroad.
That said, I seem to recall a bit about Royal Assent, where the monarch could veto or approve a proposed law that was passed by parliament.
Our chief difference was, where a 2/3 majority could overrule a presidential veto, there is no counterpart in the UK.
In short, neither the House of Lords nor the House of Commons or both, could overrule the sovereign monarch.

I’ll say, while our legal systems originated at a common point, there HAS been substantial divergence over the spare couple of centuries of separation.
Indeed, I’ve even heard that under US common law, trial by combat was never outlawed by the legislature, hence, devolving to the states to outlaw.
Of course, our federal/state/county/community system rather confounds the average citizen of the UK, as such levels are not so sharply defined.