Treaty-Making Power
What is the treaty-making power? It seems to me that there is a great misconception of its scope. There are many who argue that the treaty-making power may not extend to promises of what Congress is to do. That is the argument. Now, the treaty-making power is not a performing power. It is a promising power. When the government promises to another nation by contract, it is the treaty-making power that acts for the government and is the government. The promises to be performed are generally promises that can be performed only by Congress. Now, is it possible that the treaty-making power may not make a contract for the government to do a thing which it is for Congress to do under the Constitution? If that be true, then we cannot make treaties at all. There is no use having the treaty-making power, if that is true. Then the United States cannot promise, as it has promised time after time, to pay money, because Congress has to appropriate it when the payment is due.
That question was raised with respect to the Jay Treaty. After the Jay Treaty had been made, Congress demanded the letters between Washington and Jay as to the Treaty in order that it might investigate the Jay Treaty. Washington said No, the treaty-making power has bound you to make certain payments; that is your obligation; you are not part of the treaty-making power; therefore, you are not entitled to go to the foundations of that treaty. And Congress passed a resolution, called the "Blunt Resolution," in which it "resoluted" that it was entitled to consider the Treaty—but she paid the money without getting the letters.
Now, I appeal to you, because this is a fundamental distinction, that the treaty-making power is the promising power so far as other nations are concerned. Congress may join that promise, but it does not add any constitutional validity or strength to the promise because one congress cannot bind another congress to a policy unless it has the promising power. Under the Constitution, the President and the Senate,—two-thirds—have the promising power. Now that means the promising power for this government, and that means that when this government is bound by that promise, then it must be performed by Congress.
Ah but, you say, that limits the constitutional discretion of Congress. It does in this sense, that Congress is under a moral and legal obligation to do the thing that honor and legal obligation require, but Congress represents the government and has the sovereignty of the
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