The Treaty Power Time Bomb

Let's start with a fact that should trouble every believer in limited government: the treaty power has become the most under-appreciated threat to American federalism since the New Deal. And it's hiding in plain sight, dressed in the respectable language of diplomacy and international cooperation.

Here's the problem in one sentence: what the Constitution forbids Congress from doing directly, a President with two-thirds of the Senate can often accomplish through a treaty-and the House of Representatives, the chamber closest to the people, never gets a vote.

That is not how the Framers intended it. And it's time we started treating the treaty power as the constitutional time bomb it is.

The Founders' Design

The Constitution's Article II provides that 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." That's it. A simple, narrow delegation to deal with other sovereigns. The Founders knew that foreign relations required speed and discretion-qualities the full Congress lacks-so they gave the President the lead role, checked by the Senate's supermajority requirement.

But they never intended treaties to become a legislative bypass. James Madison made this clear in Federalist No. 45 when he wrote that the powers delegated by the Constitution are "few and defined." Treaties were among those few powers-but they were never meant to expand federal authority at the expense of the states or the people.

Alexander Hamilton reinforced the point in Federalist No. 75: the treaty power is not a legislative power. It is a power to make compacts with foreign nations. It is "executive altogether," he wrote, because it relates to "the conduct of the whole Nation" in its dealings with other countries-not to the internal governance of the American people.

That distinction matters. Because once a treaty becomes "the supreme law of the land," it imposes domestic law without ever passing through the House of Representatives. And that, as Thomas Sowell would remind us, is a classic case where intentions and results diverge dramatically.

The Self-Executing Trap

The key device that makes this possible is something called a "self-executing treaty." When the United States ratifies such a treaty, its provisions automatically become domestic law-no additional legislation required. That means a President and a Senate supermajority can unilaterally override state laws on everything from wildlife management to firearms regulation. No House vote. No committee hearings that the public can follow. No CBO score. Just a signature and a handshake in Geneva or New York.

Consider the Supreme Court's 1920 decision in Missouri v. Holland. The case involved the Migratory Bird Treaty Act, which implemented a treaty with Great Britain protecting birds that migrated between the United States and Canada. The problem? Two lower federal courts had already struck down a domestic law protecting the same birds, ruling that it exceeded Congress's enumerated powers under the Commerce Clause. So the federal government simply made a treaty with Canada, got the Senate's consent, and then passed implementing legislation that now could be justified under the treaty power-even though the same law was unconstitutional when proposed on its own.

Justice Oliver Wendell Holmes wrote the opinion, and it is a masterpiece of judicial evasion. He essentially said that if a treaty is valid, then laws "necessary and proper" to carry it out are also valid-even if they would otherwise be beyond Congress's authority. In one stroke, the treaty power became a lever to expand federal jurisdiction into areas the Constitution reserved to the states.

That is not a bug. It is a feature of the progressive view of government. And it has been exploited ever since.

Milton Friedman would see this immediately: the price system and decentralized decision-making work because they use local knowledge. But when a treaty centralizes regulatory authority in Washington (or worse, in international bodies), it destroys that local knowledge and replaces it with the fantasies of central planners. Hayek would call it a textbook case of the knowledge problem-a few hundred diplomats and bureaucrats in distant capitals thinking they can impose rules on 330 million Americans living in fifty distinct states with vastly different conditions.

The Modern Abuses

Fast forward to today. The treaty power is being stretched into areas the Founders could not have imagined and would not have tolerated.

Take the Arms Trade Treaty. The Obama administration signed it in 2013, though the Senate never ratified it. But the mere existence of such a treaty-which would regulate international firearms transfers-raises the specter of self-executing provisions that could affect domestic gun ownership. The BATFE has already cited "international obligations" in rulemaking. If a future President and Senate ratify a version of this treaty, the Second Amendment could be eroded without a single House vote.

Or consider the Paris Climate Accord. It was signed as an executive agreement, not a treaty, precisely to avoid the Senate's advice and consent requirement. That is a separate abuse. But even the treaty route would have been dangerous: a climate treaty with self-executing emission caps would impose federal regulations on everything from agriculture to transportation, preempting state laws and crushing local economies-all without the House ever weighing in.

And then there are the broad human rights treaties. The United States is a party to the International Covenant on Civil and Political Rights, the Convention Against Torture, and others. These are generally non-self-executing, meaning Congress must pass implementing legislation. But the pressure is always there to go further. Activist groups and international bodies constantly push for "incorporation" of treaty standards into domestic law through judicial interpretation. The Supreme Court has even cited foreign and international law in its decisions-something Justice Antonin Scalia rightly condemned as a "dangerous" practice that undermines American sovereignty and the Constitution as written.

The Structural Remedy

The remedy is not to abandon all treaties. The United States must be able to make binding agreements with other nations-trade deals, mutual defense pacts, extradition treaties. That is essential to national security and prosperity.

But the remedy is to return to the Framers' understanding: treaties govern relations with foreign nations, not relations within the United States. A treaty that would regulate conduct that is wholly domestic-migratory birds, firearms, emissions, or family law-should not be self-executing. It should require implementing legislation passed by both houses of Congress. That restores the House's constitutional role and respects federalism.

The Supreme Court has begun to recognize this problem. In Bond v. United States (2014), Justice Clarence Thomas wrote a concurrence arguing that the treaty power cannot be used to do what Congress has no enumerated power to do-especially when it intrudes on traditional state authority. The case involved a woman who used chemicals in a domestic dispute and was prosecuted under a federal law implementing the Chemical Weapons Convention. Thomas noted that the treaty power must be read in harmony with the Tenth Amendment. If the treaty would trench on powers reserved to the states, it cannot be self-executing. Period.

That is the right approach. And it should be codified in legislation: any treaty that would have domestic effect must be approved by both houses of Congress, just like any other law. The Senate's supermajority role in advising and consenting to the treaty itself remains intact. But the domestic implementation must go through the full legislative process.

The Human Stakes

This is not an abstract constitutional debate. The human stakes are real.

When a treaty imposes environmental regulations that shut down a family farm in Iowa because of migratory bird habitat, that farmer's livelihood is destroyed without his representatives ever voting on it. When an arms treaty restricts the types of firearms available to law-abiding citizens in Montana, their Second Amendment rights are eroded by diplomats, not legislators. When a climate treaty forces higher energy prices on working families in West Virginia, the cost is borne by people who never consented to the deal.

The Founders understood that concentrated power is dangerous. That is why they divided the legislative power between two houses, gave the House the exclusive power to originate revenue bills, and reserved most domestic governance to the states. The treaty power was never meant to undo that architecture.

The more policy is made by treaty, the less it is made by the people's representatives. The more Washington makes deals in Geneva or New York, the less freedom you have in your own town. That is not the republic the Founders gave us.

So the next time you hear a politician or pundit say "treaty," ask the right question: who has to vote, and whose liberties are being traded away? That question-anchored in the Constitution as written-is the one we're not asking nearly enough. And it's the one that could save our republic from the quietest power grab of them all.