U.S. Constitution · Article II, Section 2, Clause 2

Treaty Clause; Appointments Clause

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Also known as: Treaty Clause · Appointments Clause

The President may make treaties and appoint high federal officers only with Senate consent, with two thirds of Senators present required for treaties.

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Cited in 1 VFA SI Solution and 18 grades this month.

44 public items cite this provision · 19 in October 2026 (last month: 0)

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The text

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

National Archives transcription (public domain; original spelling and capitalization). archives.gov

SI explainer

What it means

This clause gives the President power to make treaties and to appoint high federal officials, but only with Senate approval. A treaty takes effect as national law when the President makes it and two thirds of the Senators present agree. An appointment takes effect when the President nominates a person and the Senate consents to the appointment. The appointment rule covers ambassadors and other diplomats, consuls, Supreme Court judges, and all other Officers of the United States whose appointment is not otherwise described in the Constitution and whose positions Congress has created by law. Principal officers, meaning high-level officers who report mainly to the President, must go through nomination and Senate confirmation. For lower-level officers called inferior officers, Congress may pass a law allowing appointment by the President alone, by a court, or by the head of a department. The clause does not let the President act alone on treaties or high appointments, and it does not let Congress appoint officers itself. Treaties later became part of the supreme law of the land under Article VI, but they still must follow constitutional limits and individual rights. Later amendments changed related appointment rules, including how Senators are chosen and how the terms and succession of the President and other officers work, but they did not remove the Senate supermajority requirement for treaties or the basic nomination and confirmation process.

Original meaning

The generation that wrote and ratified the provision understood treaty-making and appointment of high officers as too consequential to leave to one person, yet too sensitive to entrust to a large assembly. Hamilton wrote in The Federalist No. 75 that the national interests involved in dealings with other nations should not be committed to the sole disposal of a President. Jay wrote in The Federalist No. 64 that treaty-making concerned war, peace, and commerce and should be exercised by the best qualified participants under precautions protecting the public good. For appointments, Hamilton wrote in The Federalist No. 76 that Senate concurrence would check favoritism and discourage appointments based on state prejudice, family connection, personal attachment, or desire for popularity. The ratification debate showed disagreement about the Senate role. The Federal Farmer expressed doubt about giving the Senate, also a legislative body and impeachment court, a controlling role in treaties, while conceding that no better restraint on the President was apparent and that the House was too numerous for peace and alliance negotiations. The same writer more strongly objected to Senate participation in appointments, calling the Senate a very improper body to take part in that function.
  • “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” Alexander Hamilton, The Federalist No. 75 (1788-03-26)
  • “The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.” John Jay, The Federalist No. 64 (1788-03-07)
  • “To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Alexander Hamilton, The Federalist No. 76 (1788-04-01)
  • “I am not perfectly satisfied, that the senate, a branch of the legislature, and court for trying impeachments, ought to have a controuling power in making all treaties; yet, I confess, I do not discern how a restraint upon the president in this important business, can be better or more safely lodged: a power to make and conclude all treaties is too important to be vested in him alone, or in him and an executive council, only sufficiently numerous for other purpose, and the house of representatives is too numerous to be concerned in treaties of peace and of alliance.” The Federal Farmer, Letters from the Federal Farmer, No. 11 (1788-01-10)
  • “As to treaties I have my doubts; but as to the appointments of officers, I think we may clearly shew the senate to be a very improper body indeed to have any thing to do with them.” The Federal Farmer, Letters from the Federal Farmer, No. 11 (1788-01-10)

How the Supreme Court has read it

  1. Missouri v. Holland, 252 U.S. 416 (1920)

    The Court upheld a federal law carrying out a migratory bird treaty, holding that a valid treaty may support federal legislation that might otherwise exceed the enumerated powers of Congress. The majority reasoned that constitutional words must be read in light of national experience, not only earlier understandings.

  2. Myers v. United States, 272 U.S. 52 (1926)

    The Court held that the President may remove an executive officer appointed with Senate consent without obtaining Senate approval. The decision connects the appointment power to presidential control over executive officers through removal.

  3. Reid v. Covert, 354 U.S. 1 (1957)

    The Court held that civilian dependents of servicemembers abroad could not be tried by court-martial for capital offenses in peacetime. In the plurality view, treaties and executive agreements cannot override constitutional protections for the individual.

  4. Buckley v. Valeo, 424 U.S. 1 (1976)

    The Court held that members of a federal commission who exercise executive enforcement powers must be appointed in the manner the Appointments Clause prescribes. Officers appointed by Congress could not exercise such executive authority.

  5. Morrison v. Olson, 487 U.S. 654 (1988)

    The Court upheld the independent counsel provisions of the Ethics in Government Act, holding that the counsel was an inferior officer and that a good-cause limit on removal did not impermissibly interfere with presidential power. A dissent argued that the text vesting executive power in the President required full presidential control over purely executive functions.

  6. Edmond v. United States, 520 U.S. 651 (1997)

    The Court held that judges of the Coast Guard Court of Criminal Appeals are inferior officers who may be appointed by a department head. The Court explained that inferior officers are those whose work is directed and supervised by principal officers.

  7. Medellín v. Texas, 552 U.S. 491 (2008)

    The Court held that a judgment of the International Court of Justice was not directly enforceable in state courts without implementing legislation, and that a presidential memorandum alone could not make it enforceable. The decision limits how treaties and presidential action create domestic legal obligations.

  8. Zivotofsky v. Kerry, 576 U.S. 1 (2015)

    The Court held that the President has exclusive power to recognize foreign sovereigns. Congress therefore could not require the State Department to record a particular birthplace designation for citizens born in Jerusalem when that designation conflicted with the recognition decision.

Two schools of interpretation

Originalist / textualist reading

Originalist and textualist readers begin with the public meaning of shall appoint, Advice and Consent, Treaties, Officers of the United States, and inferior Officers. They stress the careful division the text creates: the President nominates and appoints, the Senate concurs or withholds concurrence, two thirds of Senators present must concur for treaties, and only inferior officers may have their appointment vested by law in the President alone, courts, or department heads. On this view, that structure was designed to prevent unilateral presidential control of foreign commitments and offices while also preventing Congress from appointing executive officers itself. Later practice and precedent may clarify details, but they cannot rewrite the appointment hierarchy or transfer the treaty or appointment powers away from the actors the text names.

Living-constitutionalist reading

Living-constitutionalist and pragmatist readers emphasize that treaty-making, diplomacy, and federal administration now operate in a far larger and more interconnected government than in the 1780s. On this view, broad phrases such as Treaties, Officers of the United States, and inferior Officers should be applied functionally to present needs, with attention to workable government, settled practice, democratic accountability, and protection of individual rights. Supporters point to opinions treating constitutional language in light of national experience and to functional tests for inferior-officer status and removal limits as examples of adapting the shared appointment and treaty powers to modern administration while preserving checks among the branches.

Open questions

Whether and when a treaty may expand federal legislative power beyond otherwise applicable limits on Congress; which treaties require implementing legislation before they bind courts or displace state law; how far Congress may limit presidential removal of officers without intruding on executive power, including single-layer and dual-layer for-cause protections; the precise line between principal officers who require presidential nomination and Senate confirmation and inferior officers whose appointment Congress may vest elsewhere; and how the shared treaty power relates to exclusive presidential authority over recognition and diplomacy.

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Values for America Constitution Explorer, https://www.valuesforamerica.com/constitution (text: National Archives transcription, public domain), Article II, Section 2, Clause 2, https://www.valuesforamerica.com/constitution/article-2/section-2/clause-2

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