wrongLogin (04/04/83)
It is certainly true that treaties are the "supreme law
of the land". That is, they take effect, any State law,
State consitution, or judicial policy to the contrary not
withstanding (See McCormick v. Sullivant, 10 Wheat. 192,202
(1825); United States v. Fox, 94 U.S. 315,320 (1876) ).
However, the treaty making power, while broad, is not
unlimited. In particular, it must be made bona fide and not
for the purpose of aggrandizing the powers of the National
Government (Missouri v. Holland, 252 U.S. 416 (1920) ).
Moreover, a treaty may not overide the constitution; it may
not change the character of the government which is
established by the Constitution nor require an organ of that
government to relinquish its constitutional powers (See
Geofroy v. Riggs, 133 U.S. 258,267 (1890); Doe v. Braeden,
16 How. 635,637 (1853) ; The Cherokee Tobacco, 11 Wall.
616,620-621 (1870); United States v. Minn., 270 U.S. 181,
207-208 (1926) ). Also, a treaty may be adopted with
reservations as in the case of the Hague Conventions and the
United Nations Charter.
It is also the case that an "executive agreement"
within the power of the President to make is the law of the
land which the courts must give effect to (U.S. v. Belmont,
301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203
(1942) ). Finally, Congress may authorize agents to enter
into executive agreements with foreign governments (Field v.
Clark, 143 U.S. 649 (1892); Hampton, Jr. and Co. v. U.S.,
276 U.S. 394 (1928) ).
There is some question whether treaties or "executive
agreements" may be repealed (See Fong Yue Ting v. U.S., 149
U.S. 698,721 (1893); Cf. Reichart v. Felps, 6 Wall.
160,165-166 (1868) ). It does not seem that treaties or
executive agreements may overide previous acts of Congress
(See Whitney v. Robertson, 124 U.S. 190 (1888); U.S. v. Lee
Yen Tai, 185 U.S. 213 (1902); Pigeon River Improvement, etc.
Co. v. Cox, 291 U.S. 138 (1934); Cf. however Cook v. U.S.,
288 U.S. 102 (1933) ).
In any case, I know of no support for the propostion
that a United Nations RESOLUTION, passed unanimously or
otherwise, qualifies as a treaty or executive agreement.
Therefore, I see no reason why such a resolution would come
under the auspices of Article VI.
- Cardozo