The separation of powers - Treaty and foreign affairs powers

Learning Outcomes

After reading this article, you will understand the constitutional allocation of treaty and foreign affairs powers between Congress and the President, the process for making treaties, the legal status of treaties and executive agreements, and the limits on federal and state authority in foreign affairs. You will be able to apply these principles to MBE-style questions and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the separation of powers as it relates to the conduct of foreign affairs and the making of treaties. Focus your revision on:

  • The President’s power to negotiate and enter into treaties and executive agreements.
  • The Senate’s role in treaty ratification.
  • The legal status of treaties and executive agreements in relation to federal and state law.
  • Congressional checks on the President’s foreign affairs powers.
  • The limits on state involvement in foreign relations.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is required for a treaty negotiated by the President to become binding federal law?
    1. Approval by a majority of the House of Representatives.
    2. Approval by a two-thirds vote of the Senate.
    3. Signature by the President alone.
    4. Approval by a majority of both Houses of Congress.
  2. If a valid treaty conflicts with a prior federal statute, which controls?
    1. The treaty.
    2. The statute.
    3. The one adopted later in time.
    4. The one approved by a larger vote.
  3. Which of the following is true regarding executive agreements?
    1. They require Senate approval.
    2. They are not binding on the United States.
    3. They may override conflicting state law.
    4. They may override the U.S. Constitution.
  4. Can a state enact a law that directly regulates foreign commerce or enters into an agreement with a foreign nation?
    1. Yes, if Congress consents.
    2. Yes, without restriction.
    3. No, states are always prohibited.
    4. Only if the President consents.

Introduction

The U.S. Constitution divides foreign affairs powers between the President and Congress. The President leads diplomatic relations and negotiates treaties, but the Senate must approve treaties for them to become binding. Executive agreements are another tool for international commitments. The Constitution also restricts states from conducting their own foreign policy. Understanding these allocations and limits is essential for MBE success.

Key Term: Treaty A formal agreement between the United States and a foreign nation, negotiated by the President and requiring approval by a two-thirds vote of the Senate to become binding federal law.

Key Term: Executive Agreement An international agreement made by the President with a foreign nation that does not require Senate approval and is generally used for routine or less formal matters.

Key Term: Supremacy Clause The constitutional provision that makes the U.S. Constitution, federal statutes, and treaties the supreme law of the land, overriding conflicting state law.

Key Term: Foreign Affairs Power The authority to conduct the nation’s relations with other countries, including making treaties, appointing ambassadors, and recognizing foreign governments.

The President’s Treaty and Foreign Affairs Powers

The President is the primary representative of the United States in foreign relations. This includes negotiating treaties, appointing ambassadors, and recognizing foreign governments. However, these powers are not unlimited and are subject to checks by Congress.

Treaty Power

The President negotiates and signs treaties, but a treaty does not become binding federal law unless two-thirds of the Senate present concur. Once ratified, a treaty has the same legal status as a federal statute.

  • If a treaty and a federal statute conflict, the one adopted later in time prevails.
  • Treaties cannot override the U.S. Constitution.

Executive Agreements

The President may also enter into executive agreements with foreign nations. These do not require Senate approval and are often used for routine or administrative matters.

  • Executive agreements are binding on the United States.
  • They may override conflicting state law but cannot override federal statutes or the Constitution.
  • Congress may limit or override executive agreements by statute.

Recognition Power

The President has the exclusive power to recognize foreign governments and determine which foreign states are legitimate. Congress cannot override the President’s recognition decisions.

Congressional Checks

Congress can check the President’s foreign affairs powers by:

  • Refusing to appropriate funds for foreign initiatives.
  • Passing statutes that override executive agreements.
  • Regulating foreign commerce and declaring war.

Limits on State Power

States may not conduct their own foreign policy, enter into treaties, or regulate foreign commerce. The Constitution prohibits states from entering into agreements with foreign nations without congressional consent.

  • State laws that interfere with federal foreign policy are preempted.
  • States cannot recognize foreign governments or send ambassadors.

Worked Example 1.1

A President negotiates a treaty with Country X on environmental standards. The Senate approves the treaty by a two-thirds vote. Congress previously passed a statute with different environmental rules. Which law controls if there is a conflict?

Answer: The treaty and the statute have equal status under federal law. The one adopted later in time controls. If the statute was enacted after the treaty, the statute prevails; if the treaty was ratified after the statute, the treaty prevails.

Worked Example 1.2

The President enters into an executive agreement with Country Y to facilitate trade. A state passes a law that restricts trade with Country Y. Is the state law valid?

Answer: No. Executive agreements, like treaties, preempt conflicting state law. The state law is invalid to the extent it conflicts with the executive agreement.

Worked Example 1.3

A state legislature passes a law recognizing a breakaway region as an independent country and opens a state trade office there. Is this law constitutional?

Answer: No. States cannot recognize foreign governments or conduct foreign relations. Such actions are reserved to the federal government.

Exam Warning

The President cannot unilaterally make binding federal law through executive agreements if Congress has legislated otherwise. Always check for conflicting federal statutes.

Revision Tip

Remember: Treaties require Senate approval; executive agreements do not. Both override state law, but only treaties can override prior federal statutes if later in time.

Summary

  • The President negotiates treaties, but Senate approval is required for them to become binding federal law.
  • Executive agreements do not require Senate approval but cannot override federal statutes or the Constitution.
  • Treaties and executive agreements preempt conflicting state law.
  • Congress can limit the President’s foreign affairs powers through legislation and funding.
  • States are prohibited from conducting their own foreign policy or entering into international agreements without congressional consent.

Key Point Checklist

This article has covered the following key knowledge points:

  • The President negotiates treaties, but Senate approval by two-thirds is required for ratification.
  • Executive agreements are made by the President alone and do not require Senate approval.
  • Treaties and executive agreements override conflicting state law.
  • Treaties and federal statutes have equal status; the later in time prevails.
  • Executive agreements cannot override federal statutes or the Constitution.
  • Congress can check the President’s foreign affairs powers through legislation and appropriations.
  • States cannot conduct foreign policy or enter into agreements with foreign nations without congressional consent.

Key Terms and Concepts

  • Treaty
  • Executive Agreement
  • Supremacy Clause
  • Foreign Affairs Power
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