Harvard Law Review Forum: Limits on the Treaty Power

Harvard Law Review Forum: Limits on the Treaty Power

Can the President and the Senate override the Constitution by approving a treaty? U. S. Sen. Ted Cruz (R-Texas) presents a scholarly essay on constitutional provisions and Supreme Court decisions regarding limits on the power of the president to make treaties and the power of Congress to implement the terms of a treaty. Medellin v. Texas (which Cruz argued as the state's Solicitor General), Missouri v. Holland, and an important pending case, Bond v. U. S. are discussed in depth, along with many other Court decisions.

"As Thomas Jefferson explained, the treaty power 'must have meant to except . . . the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.'"

"Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power." -- Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836).