Federalist #73

The Provision For The Support of the Executive, and the Veto Power (Hamilton)

The president has the power to, with the advice and consent of the Senate, make treaties that must be ratified by two thirds of the Senators present at the time of ratification. Hamilton believes this is one of the best digested and most unexceptional parts of the proposed Constitution. He says some people object to the provision because it has an element of mixed power. Some critics believe that the president alone should have the power of making treaties. Others believe the Senate alone should have the power. Another objection is the small number of people involved in making a treaty. Some critics believe that the House of Representatives ought to have a say in making treaties. Other critics seem to think that two thirds of the Senate should ratify the treaty instead of two thirds of those present at the time the treaty is considered.

As to the mixture of powers, Hamilton relies on the explanations are given from other places of the true sense of the rule which the objection is founded in and take it for granted from the other sources that the Senate and the executive making treaties is no infringement on that rule. Though several writers on the nature of government place the power to make treaties entirely with the executive's it eventually falls to the legislature to actually make the treaty, but it doesn't strictly fall within the definition of what either of the branches are supposed to do. Legislatures have the authority to enact laws or in other  words to prescribe rules for the regulation of society; while the execution of laws seems to comprise all of the functions of the executive. The power of making treaties is neither one or the other. It relates neither to the execution of the existing laws or the making of new ones. Treaties are contacts with foreign nations that have the force of law, but derive that from some good faith. They are agreements between leaders. The power seems to therefore form a distinct department belonging either to the executive or the legislative branches. The qualities that seem indispensable to negotiations with foreign powers point to the executive as the most the agent in these transactions; While the importance of trust in the operation of treaties and laws plead strongly for participation of the whole or a portion of the legislative body when making them.

It may be safe to give the power for making treaties solely to the executive when a country is ruled by a monarch, but it is utterly unsafe and improper to trust that power to an executive that serves only four-year terms. This is because a chief executive might find it tempting to sacrifice his duty for his personal interest or gain. He might be tempted to trade the interest of the country for the acquisition of personal wealth.

To give the treaty making power to the Senate alone would have relinquished the constitutional power of the president to conduct foreign negotiations. If the Senate were wholly responsible for making treaties, they would have the option of asking the president to make foreign negotiations on their behalf, but they would also have the option of doing it themselves. If the president were used in this capacity by the Senate, he would not enjoy the respect foreign powers in the same degree as being a constitutional representative of the United States. He would also not be able to ask for with any degree of weight or efficacy. The people in the United States would also lose the additional security that comes from the cooperation of the executive. The mixed power arrangement provides a greater prospect of security than the separate possession of the power by either branch. 

 Hamilton believes that the House of Representatives should not be involved in making treaties because its short terms forbid us to expect those qualities in it which are essential to the proper execution of treaty creation: accurate and competent knowledge of foreign politics, a study in systematic adherence to the same views, decision, secrecy and dispatch. Trying to get so many people to agree on the proper treaty would be very difficult. The House of Representatives would have to gather for extended period of time which would add to the difficulties. 

In response to the criticism that it should be two thirds of the members composing the Senate to ratify a treaty instead of two thirds of those present, Hamilton said that is been shown that all provisions which require more than a majority of any body have a direct tendency to slow down the operations of government. He says this should be enough to convince critics of ratifying treaties the way the Constitution provides.

To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of the numerous agency better than to merely require upper portion of the attending members. Requiring all members increases the difficulty of resolutions agreeable to the minority and diminishes the reasons for attending a ratification. If treaties are ratified as the Constitution reads, the presence or absence of a single member does not derail the whole process. When we take into consideration the cooperation of the president, we can infer the people of America would have greater security in the power of making treaties under the new Constitution than they now enjoy under the Confederation. Adding the Senate to the process of making treaties provides confidence that a sufficient number of people will be entrusted with the power of making treaties and all bodies bigger than this Senate would not be fit for such a power.