My question is, may ratification of a United Nations treaty, overturn a US law? How about US constitutional law? Years ago I remember hearing that by ratifying some UN treaty gun ownership would be overruled. I dismissed it as bullshit.
Recently, I got to wondering just how much power a properly ratified treaty would have. I did some googling and haven’t been pleased with the results. I get mostly less than reliable sites.
Little help here.
Thanks
Treaties signed by the US are US law, and can overturn other US laws just like any other law can.
So if there was an appeal it could be declared unconstitutional just like any other law then?
The provisions of a treaty must be consistent with the Constitution, like federal laws. As the Supreme Court succinctly put it
But there are things a treaty can do that a federal law can’t do. In particular, a treaty can be used to expand the scope of federal power into areas that would otherwise be reserved to state jurisdiction by the Tenth Amendment. Because of the supremacy clause, a federal law passed to enforce the terms of a treaty may be constitutional even if the subject matter is outside Congress’s enumerated powers. The famous example here is the Migratory Bird Treaty Act case.
There is also the complicating issue of what is and is not a treaty. A lot of things we think of as treaties are actually not treaties according to the Constitution, though they probably are treaties from the viewpoint of international law.
Properly, a treaty needs to be signed by the president and ratified by 2/3 of the Senate. But a lot of “treaties” take the form of executive agreements or executive-congressional agreements.
An executive agreement basically consists of the president promising a foreign power to do something within the power of the executive branch alone and then issuing an executive order to do it. An executive-congressional agreement involves the president promising a foreign power to have Congress pass an ordinary law to do something.
As a domestic matter, these kinds of agreements have features of both treaties and ordinary legislation, but unlike a real treaty they can not be used to expand the scope of federal power.
Thanks friedo, that is kind of what I was looking for. I am going to have to reread a bit and may have to ask more questions.
A law is a law. I find this to be a very simple question to answer.
The idea that a “UN treaty” could be used to overrule the Constitution is stupid. If Congress could simply negate the Constitution by passing a simple law, which is what a treaty is (sometimes; sometimes it has less force than a law) then they’d do it literally all the time. There would no longer be a Bill of Rights; you could pass any law by simply tacking it on to some minor international agreement of otherwise little significance.
Not quite. Treaties ratified by the US are US law. If the Senate doesnt ratify they are not binding.
IIRC, the “This UN treaty will ban all guns!” crowd were basing their claim on Article 6, Section 2:
If you squint a bit and read fast, you can interpret the bolded section to mean that a treaty becomes the Supreme Law of the Land, overruling even the rest of the constitution. As friedo pointed out, that’s now how the SC has interpreted it.
Well, a law isn’t necessarily a law. There are different kinds of law. The Constitution is a law. Federal statutes are laws. Executive orders are law. Regulations are law. Binding court decisions are law. Treaties are law.
But all of these things exist in concert with one another and at different “levels” of applicability and with the potential for conflict with one another. We’ve already seen that there are some important differences between ordinary statutes and ratified treaties with regard to how they are interpreted within the constitutional framework. It’s not enough to say “a law is a law” while ignoring the subtle but important mechanisms by which all the various sources of law interact.
Even that is a bit murky. Consider an executive-congressional agreement which is implemented by a statute saying “the United States will henceforth pay the Republic of Turduckistan $30 annually in exchange for a shipment of six crates of Dr. Pepper.”
Is it binding? Suppose those rowdy Turduckistanis don’t get their check in time, so they sue United States in US federal court. The court would find that the laws of the United States require the government to pay them $30 and would order them to do so. So the agreement is binding in the sense that Congress can bind the United States. Of course, they could repeal the law later, when they get sick of Dr. Pepper. Withdrawing from a ratified treaty may be more difficult.
Precisely what other countries may or may not consider binding is also not entirely clear.
There is also the issue that some treaties are self-executing (that is, once the treaty is approved by the Senate and ratified, it becomes binding law) and other treaties are non-self-executing (the provisions of the treaty require additional legislation to be enacted in order to implement the terms of the treaty).
It is also not generally understood that governments often consider “understandings” during the course of negotiations and ratification that clarify how a country will interpret or implement various provisions of treaties. For example, if the Arms Trade Treaty came before the Senate, the Senate’s resolution of approval could include an understanding that article whatever shall not be construed to mean a particular thing, and the US will not recognize that such article compels a certain interpretation. (I don’t know the details of the treaty offhand, so I am speaking in generalities.)
Exactly. When signing a treaty, a state can make reservations about particular portions or articles of the treaty that unilaterally interpret certain words or phrases to mean one thing or the other or otherwise object and declare that the signing/ratifying state reserves its right to limit its adherence to or not comply with a certain article or passage. Other states can object to certain reservations, but in reality there isn’t much they can do, particularly if there is no mechanism in a given treaty to challenge other ratifying states’ lack of enforcement.
What a terrible sentence. No wonder there is so much controversy over legal decisions.
What’s wrong with it?
Since the Arms Trade Treaty
(a) recognises as a basic principle of “Non-intervention in matters which are essentially within the domestic jurisdiction of any State”
(b) only commits member states to have control mechanisms on the* export* of weapons
it has no effect at all on whether or not a member state chooses to let its own citizens hold weapons of their own. Unless of course some lunatic thinks your Second Amendment entitles them to sell guns to all and sundry around the world?
From a practical perspective, so long as the U.S. remains a permanent member of the U.N. Security Council, international law is moot. We can veto any type of UN enforcement action against us, and effectively, can do whatever we want.
Is it (Congress or and other branch of the Government) which is free from the restraints of the Constitution, or is it (agreement with a foreign nation)?
The sentence is referring to power which would be free from the restraints of the Constitution. The Court ruled that a treaty could not confer such a power.
Altho that does make the USA safe vs Security Council actions, this is not what the Op is talking about. Not to mention there is also the World Court, etc.
Right. The sentence would be more understandably written as:
No agreement with a foreign nation can confer on the Congress, or on any other branch of Government, power which is free from the restraints of the Constitution.
No agreement with a foreign nation can confer power which is free from the restraints of the Constitution, on the Congress or on any other branch of Government.
Well… for sure someone out there does believe that indeed you should be able to trade guns all and sundry around the world, because, *FREEDOM!!!11!!1
*
But more commonly with issues like these, the “lunatic” as you describe them is someone who is convinced that that any instance of the US recognizing or participating in ANY body of law or policy other than the explicit text of the US Constitution or the Common Law is a foot-in-the-door/camel’s-nose-under-the-tent part of the plot to undermine those two and submit us to an International Order.
Just a correction, the case cited above, Reid v. Covert, 354 U.S. 1 (1957) pertained the an Executive Agreement,* not *a ratified treaty.
AFAIK, the SCOTUS has never held a treaty to be unconstitutional. The case which some people cough Ted Cruz cough claim is authority for that is Medellín v. Texas, 552 U.S. 491 (2008), the decision was based upon the text of the treaty itself (the specific treaty did not grant standing to individuals).
I would hazard a guess, in an actual case where a treaty’s constitutionality is challenged, the SCOTUS would go out of its way to ensure a harmonious interpretation.