Related Citations
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Joshua Abbuhl, International Dealmaking at the White House: Toward a Viable Test of Allowable Sole Executive Agreements, 54 Colum. J. Transnat’l L. 779 (2016)
Concluding that various clauses in the Constitution–including the Treaty Clause–provide textual support for the idea that the President may enter international agreements in certain circumstances but contending that the text is largely silent on which circumstances allow such agreements.
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Daniel J. Hessel, Founding-Era Jus Ad Bellum and the Domestic Law of Treat Withdrawal, 125 Yale L.J. 2394 (2016).
Examining the relationship between treaty withdrawal and war powers through an originalist lens and concluding that the Constitution supports a role for Congress in treaty withdrawal.
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Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773 (2014).
Arguing that an examination of the development of American treaty termination practices illustrates how historical practice can inform modern understanding of constitutional matters.
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Rebecca M. Kysar, On the Constitutionality of Tax Treaties, 38 Yale J. Int’l L. 1 (2013).
Exploring the historical foundations and doctrinal developments of the Origination Clause and the Treaty Clause and concluding that tax treaties are constitutionally problematic.
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Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247 (2012).
Suggesting that the text of the Treaty Clause, evidence of original intent, and evolving practice all permit the Senate to give its advice and consent to a treaty in advance of a treaty’s negotiation.
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Carlos Manuel Vazquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008).
Positing that the Constitution’s text and structure–particularly the Supremacy Clause–support a default rule of self-execution for treaties, making them directly enforceable in the courts.
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David Gray Adler, George Bush and the Abuse of History: The Constitution and Presidential Power in Foreign Affairs, 12 UCLA J. Int’l L. & Foreign Affs. 75 (2007).
Arguing that the Bush Administration’s claim that the President has the power to terminate and suspend treaties has no support in the text or structure of the Constitution.
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Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L. Rev. 1 (2006).
Arguing that the original public understanding of the Treaty Clause was that the clause merely confirmed, clarified, and qualified the President’s power to make treaties, but that it did not grant a new treaty-making power to the President.
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Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001).
Arguing that the Constitution’s text supplies a robust four-part framework for foreign affairs powers and that this framework comports with foreign affairs powers practice before, during, and after the Constitution’s ratification.
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Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev. 961 (2001).
Critiquing Bruce Ackerman’s “constitutional moments” approach and Laurence Tribe’s textualist approach to foreign relations law and proposing a “constitutional increments” model in which constitutional history and practice form the basis for constitutional interpretation of the treaty power.
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H. Jefferson Powell, The Founders and the President’s Authority Over Foreign Affairs, 40 Wm. & Mary L. Rev. 1471 (1999).
Examining the writings of leading early American thinkers and concluding that the Constitution gives the President central responsibility for the foreign policy of the United States.
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Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. 2095 (1999).
Arguing that the Framers intended treaties to be self-executing upon ratification.
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John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999).
Concluding that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress.
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Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133 (1998).
Concluding that the original constitutional design allows the President to undertake international obligations through minor “nontreaty” agreements, but that the President does not have the sole authority to bind the United States to significant international obligations.
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David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. Rev. 1791 (1998).
Offering a textual and structural analysis of the Treaty Clause that supports the idea that the clause is indeterminate.
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Howard R. Sklamberg, The Meaning of “Advice and Consent”: The Senate’s Constitutional Role in Treatymaking, 18 Mich. J. Int’l L. 445 (1997).
Examining the origins of the phrase “advice and consent” in the Treaty Clause and concluding that the Framers intended the Senate to have the power to suggest diplomatic instructions or broad negotiating goals to the President and that the President would have the power to ignore the Senate’s suggestions.
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Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).
Arguing that the Constitution contains clear textual and structural constraints on treatymaking and constitutional amendment.
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Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995).
Arguing that “constitutional moments” have transformed the meaning of the Treaty Clause and legitimized the congressional-executive agreement in treaty-making and that such an understanding is appropriate because the constitutional text can plausibly be construed to support such a theory.