Treaties · how they're made, and when they're actually law

How a treaty is made

Under Article II, § 2, the President negotiates a treaty — but it is not law on the President's signature alone. The Senate must give advice and consent by a two-thirds vote; only then does the President ratify it and exchange instruments with the other nation. Under Article VI (the Supremacy Clause), a ratified treaty stands with the Constitution and federal statutes as “the supreme Law of the Land,” binding on state judges.

Not every international agreement is a “treaty” in this Article II sense. The United States also makes congressional-executive agreements (approved by a simple majority of both houses — most trade agreements take this form) and sole executive agreements (made by the President alone within existing authority). They can carry real legal force, but they are made and unmade differently, and a sole executive agreement cannot override a federal statute.

See Article II (the treaty power) and Article VI (Supremacy) on the Constitution page →

When a treaty is enforceable law here: self-executing vs. not

A ratified treaty binds the United States internationally — but whether a court in the United States can enforce it directly depends on whether it is self-executing. A self-executing treaty operates as domestic law on its own. A non-self-executing treaty is a promise to the other nation that does not create rights a private person can sue on until Congress passes implementing legislation — that legislation is how the treaty is codified into the U.S. Code.

The practical upshot: pointing to a treaty is not the end of the argument. A court asks whether it is self-executing and, if not, whether Congress has codified it — the step the pseudolegal “treaty immunity” claims skip.

The limits: powerful, but not above the Constitution

The real hierarchy: the Constitution above all; treaties and federal statutes on the same tier, the later one winning when they clash; and a treaty enforceable in court only when self-executing or codified. A treaty never places a person outside the Constitution or the courts.

How far the Constitution reaches: territory acquired by treaty, and Americans abroad

Treaties don't just bind the country — they've been how the United States acquired territory, which forced a hard question: when land comes in by treaty, does the whole Constitution come with it? This is real, unsettled, and directly relevant to anyone who thinks “jurisdiction” is a switch you can flip.

Territory acquired by treaty — the Insular Cases. After the Treaty of Paris (1898) transferred Puerto Rico, Guam, and the Philippines from Spain, the Court built the “unincorporated territory” doctrine: in such territories only some constitutional provisions apply automatically.

This is live, contested doctrine. The Insular Cases have been widely criticized as resting on discredited, racist reasoning. In Financial Oversight Board v. Aurelius (2020) the Court was asked to overrule them and declined to reach the question; in United States v. Vaello Madero, 596 U.S. 159 (2022), Justice Gorsuch's concurrence urged overruling them outright, writing they “have no foundation in the Constitution and rest instead on racial stereotypes.” The Court has not overruled them. We state this as the record, not a verdict.

Americans abroad — the Consular Cases. The reach question runs the other way too — how far U.S. law follows a citizen overseas. In re Ross upheld American consular courts trying citizens abroad without a jury, on the theory that the Constitution stopped at the water's edge. That theory did not survive:

The honest through-line: the reach of American law over acquired territory and citizens abroad is a real, serious, still-argued question resolved by courts case by case — the opposite of the pseudolegal fantasy that a person can unilaterally declare themselves outside all jurisdiction. Jurisdiction's edges are contested in the U.S. Reports; they are not a secret you opt out of.

Why this matters for the “treaty immunity” claims

Some movements claim an old treaty — most often the 1786/1836 Treaty of Peace and Friendship with Morocco — makes them immune to U.S. law. Run it through the real framework and it fails at every step: the treaty is not self-executing as a grant of personal immunity, Congress never codified any such immunity, and even a self-executing treaty could not place a person outside the Constitution and the courts (Reid v. Covert). See Rights That Hold Up in Court → the Moorish / treaty-immunity cases.

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