The Law Treaty Negotiation: A Presidential Monopoly?


Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress. He has published numerous works on the presidency, national security, war powers, and other constitutional issues. The views expressed here are personal, not institutional.


In “The Law” section of the March 2007 issue, I analyzed misconceptions by Justice George Sutherland in his decision in United States v. Curtiss-Wright (1936), where he described the president as “sole organ” in foreign affairs. This article examines his erroneous statements about the president's authority to negotiate treaties. Sutherland stated that the president makes treaties with the advice and consent of the Senate “but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” That statement was false when written, false when Sutherland served earlier as a U.S. senator from Utah, and false in contemporary times, especially in light of fast-track procedures that bring both chambers of Congress closer to the negotiation process for trade agreements.