Title: Treaty Making Power
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003088/00001
 Material Information
Title: Treaty Making Power
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Treaty Making Power
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003088
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

Treaty-Making Power

Under the Constitution, the President, has power: 24
by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators
present concur *
The Constitution also provides that treaties made under the
authority of the United States: 2
shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the
Constitution or laws of any State to the Contrary not-
The foregoing provisions have existing and potential impor-
tance, particularly as to international streams such as the Rio
Grande, the Colorado River, the Columbia River, and the St.
Lawrence River.2" As we shall later see, important functions
respecting certain international streams have been vested in
international agencies created pursuant to the provisions of
treaties." Likewise, reference will later be made to the his-
toric utility of treaties in preservation of waterways as common
highways." T
"U. S. CONST., Art. II, 2, cL 2.
U. S. CO sT., Art. VI, ci. 2. From Mr. Justice Story comes this statement
of-the reason why treaties should be held the supreme law of thelandi "It is
to be considered that treaties constitute solemn compacts of binding obli-
gation-among nations; and unless they are scrupulously obeyed and enforced,
-nooreigi nations would consent to negotiate with us *. It is, there-
fore, indispensable that they should have the obligation and force of t'lav,
that they may be executed by the judicial power, and be obeyed like other
laws. The peace of the nation, and its good faith, and moral
dignity indispensably require that all State laws should be subjected to their
supremacy." 2 Story, CoNarrrUIoN OF THE UNITE STATES, Bk. III, h.
XLII, 1 1838, pp. 604-605 (5th ed. 1891). See also MissUowt i olland,
252 U. S. 416, 433-435 (1920)..
For example, by treaty respecting the Colorado River and subject to
certain conditions, a right was recently guaranteed to Mexico to receive
annually 1,500,000 acre-feet of water. Treaty between the United States of
America and Mexico, Utilization of the Waters of the Colorado and Tljuana
Rivers, and of the Rio Grande, February 3, 1944, Treaty Series 994, Art. 10,
59 Stat. 1219,1237.
See infra, pp. 121-123, 147-148, 309-311, 480-481.
See infra, pp. 74-75.


I 2Xoreover, treaties constitute a source for limitation on uses
within the United States of waters of international streams.2
And it is plain that, in accordance with the express requirements
of the Constitution, provisions of valid treaties become the su-
preme law of the land to which other provisions of federal and
state lawiare subordinated?
by treaties with western tribes of Indians, the United States
has reserved certain rights to use of water. In the case of
Winters v. United States, involving such a reservation effected
by ian agreement ratified by act of Congress, the 'Supreme
Coint said:o 2
The power of the Government to reserve the waters and
exempt them from appropriation under the state laws
is not denied, and could not be *. That the
Government did reserve them we have decided, and for
a use which would be necessarily continued through

General-Welfare Power

Congress is expressly poweredd by the Constitution to levy
taxes and to appropriate funds to provide for the general wel-
fare of the United States.
It was early established that the Federal Government is one
of delegated powers, but not until 1936 was it determined in
the Butler case that the General-Welfare Clause constitutes a
delegation of power separate from and not restricted by those
laier enumerated in the same section of the Constitution, such
a~ federal authority over commerce.- Settling that point, the

Sf' :. Artizna v. Calfotrnia, 283 U. S. 423, 458, n. 10 (1931).
SUnited States v. Pink, 315 U. S, 203, 230-231 (1942).
"207 1. S. 564, 577 (1908). See also United States, Powers, 305 U. S.
527, 528-532 (1939); Conrad Inv. Co. v. United States, 161 Fed. 829 (0. A. 9,
1908); United States v. Mclntire, 101 F. 2d 650, 653-54 (C. A.,9, 1939);
United States v. Walker River Irr. Dist., 104 F. 2d 334, 336 (. A. 9, 1989) ;
United Stales v. Parkins,18 F. 2d 643,644 (D. C. Wyo. 1926).
mU. S. CONST., Art. I, 8, cl. 1; Art. I, 9, el. 7.
m United States y, Butler, 297 U. S. 1, 64-6 (1936). .

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