I’ve been coming to terms lately with the fact that I’m obsessed with treaties. Now, to some, this might be a strange subject for an obsession, but I really do like treaties – I like to read newly negotiated treaties; I like to debate who can make treaties, not to mention my interest in comparing how different states interpret and apply the Vienna Convention on the Law of Treaties.
Most recently, I’ve carried my treaty interest into the domestic sphere – examining the role of treaty-making within the U.S. legal system. My latest foray into this field is an article forthcoming in the Southern California Law Review, entitled Executive Federalism: Forging New Federalist Constraints on the Treaty Power. In it, I address the longstanding debate over whether federalism constrains the treaty power (i.e., do states’ rights preclude the United States from concluding treaties on certain subjects or limit what procedural obligations the United States can accept in its treaty commitments). I challenge the conventional wisdom that the courts will authoritatively resolve that debate, and argue that, in reality, the Executive (rather than the courts or the legislature) primarily controls when and how to accommodate federalism principles in U.S. treaty-making. I conclude that the Executive’s efforts to address federalism in its treaty-making (efforts I dub “Executive Federalism”) have significant implications for how we conceive of the nature of federalism, for the role of other government actors in U.S. treaty-making, and for U.S. foreign relations overall. I’ve now posted the article on SSRN (you can download it here) or continue reading after the jump for my full abstract.
Executive Federalism: Forging New Federalist Constraints on the Treaty Power
This article addresses the longstanding debate over whether federalism constrains the treaty power and challenges the view that courts may authoritatively resolve that debate. Until recently, scholars generally accepted that the treaty power operated free from federalism limits based on Justice Holmes’ opinion in
Missouri v. Holland. Lately, however, scholars have questioned whether
Missouri remains good law. Two camps have emerged. On one side lie “nationalists” who seek to defend
Missouri by invoking constitutional text, structure, history, doctrine and prudential claims. On the other side reside “new federalists” who suggest that the Court should overrule
Missouri in light of: (1) adjustments to Congress’ commerce power via
Lopez and its progeny; and (2) changes in the subjects and substantive obligations of U.S. treaties. Despite their disagreements, both sides focus on the same subject—the Supreme Court.
This article demonstrates, however, that this judicial focus is misplaced. An examination of the Court’s doctrine reveals little likelihood that it will revisit Missouri. More importantly, while the Court has chosen to disengage, the Executive has interpreted the treaty power’s scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive’s efforts to self-judge when and how federalism limits U.S. treaty-making–efforts that I label “Executive Federalism.” But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism’s nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states’ rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority of other actors (the courts, the legislature, and even future Presidents) to voice their views on federalism in the treaty context. Third, it provides us with valuable information about how the holder of the treaty power–the Executive–conceives of its scope. Finally, Executive Federalism can affect U.S. foreign relations, preventing some treaty-making altogether, constraining U.S. negotiating positions, imposing extra costs to achieve U.S. goals, and complicating questions of U.S. compliance. In sum, Executive Federalism presents the case for re-conceptualizing the treaty power debate to recognize the Executive as an essential subject in its own right. So, read it today.
At this point I think we can leave out the ‘shameless self promotion’ stuff, as it seems an accepted social norm in the blogosphere and elsewhere to publicize one’s own work. And inasmuch as many authors introduce their publications invoking this apologistic trope, it no longer rings true anyway, so let’s just drop it. Or does anyone think otherwise?
That said, I look forward to reading a paper I suspect will receive lots of attention if only because of its clever and provocative title (although the ‘new federalists’ will probably go away a bit disappointed). And who knows, a future presidential administration may find your arguments as congenial as the the current one found the arguments of John C. Yoo! (Playing around here, please don’t take this too personally or seriously)
Dear Duncan, I enjoyed your paper, although owing to my lack of expertise on this subject I doubt I can offer any intelligent comments that might be of help. As far as I can ascertain it was well argued. Correct me if I’m mistaken, but the heart of your argument is the claim that the answer to the question of ‘whether federalism limits U.S. treaty-making today’ is to be found in ‘Executive actions rather [rather] than in the scholarly readings of judicial tea-leaves.’ I trust you’re saying that this is a normative answer derived from your reading of the empirical evidence (from what is the case to what the case ought to be). The ‘Nationalists’ and the ‘New Federalists,’ on the other hand, look to the Supreme Court because they believe the argument is in the first instance Constitutional and thus normative, mining the historical record to buttress their constitutionally normative arguments (‘turn to history’ to ‘support their structural and textual conclusions,’ i.e., what ought to be the case is illustrated historically by what in fact has been the case) and hence to the Supreme Court for a confirmation or legitimation of that normative constitutional argument. I wonder whether individuals… Read more »
Please pardon the ‘rather’ redundancy.
It should read ‘is not the kind of argument either side will find compelling’
This was rather hastily composed as I wanted to finish before dinner was on the table!