Topic: The Constitution and Executive Power
Senator: Feinstein
Date: SEPTEMBER 14, 2005
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FEINSTEIN: Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power. I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?
ROBERTS: Right.
FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?
ROBERTS: As a general matter, the answer is no. The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.
FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?
ROBERTS: Yes. Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated. But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.
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