21 Mar Missouri v. Holland and Treaties’ End
Even if historical practice does not provide a legitimate basis for restricting the scope of the congressional-executive agreement power, federalism might. Under Missouri v. Holland, neither Article II treaties nor the statutes that implement them are subject to the enumerated power limitations that apply to Congress. While these limitations are relatively modest, especially with respect to activities involving the production of goods (as illustrated by the medical marijuana case, Gonzales v. Raich), they have been enforced in some prominent modern cases, including in United States v. Lopez (disallowing federal regulation of possession of handguns near schools), Boerne v. Flores (disallowing federal regulation of local zoning), and United States v. Morrison (disallowing federal regulation of intrastate violence against women).
One of the strongest arguments for the holding in Missouri v. Holland is that the supermajority senatorial consent process specified in Article II provides enough political process protection for federalism, such that judicial enforcement of federalism is not needed in this context. Defenders of Holland also point to the practice of the Senate in either blocking some treaties thought to be particularly intrusive on federalism, or in attaching federalism-protective reservations, understandings, and declarations to its consent to treaties, as proof that the senatorial consent process does in fact protect state interests. This political process line of argumentation is unavailable, however, for congressional-executive agreements, which follow the same domestic process as is used for statutes. A number of supporters of congressional-executive agreements have therefore concluded that they do not receive the benefit of Missouri v. Holland, and this is also Oona’s conclusion.
Because of this, Oona pulls back from calling for treaties’ end, and only calls for their partial end. She states that, “[i]n contrast with Article II treaties, congressional-executive agreements cannot exceed the bounds placed by the Constitution on congressional authority” and that therefore “[w]ere there an international agreement that required the federal government to exercise powers beyond those granted to Congress, it could (and should) be ratified through the Treaty Clause just as it would be today.” This is a perfectly reasonable concession, but it seems to me that Oona probably underestimates the extent to which this issue will arise, especially in the area of human rights law. To take just one example, is it really clear that Congress could simply enact all of the local family law provisions in the Convention on the Rights of the Child?
Oona also appears to assume that we will know in advance which treaties will exceed Congress’s authority, and that we can channel those (allegedly very rare) treaties into the Article II process and the rest into the congressional-executive agreement process. The bounds of Congress’s Article I authority, however, are notoriously unclear, and much will depend on how particular treaty provisions are interpreted and applied. As a result, her concession might actually provide support for a categorical approach to the issue whereby certain types of agreements likely to raise federalism issues (e.g., human rights agreements) are presumptively channeled to the Senate to foster constitutional avoidance. (Incidentally, I agree with other posts that have expressed the view that this channeling is going to continue anyway since we now have a political equilibrium for human rights agreements that is unlikely to be disturbed by academic grumbling about the irrationality of our constitutional practice.)
It seems to me that a more fundamental objection to Oona’s federalism concession, however, is that there is tension between her democracy-oriented defense of congressional-executive agreements and her support of Missouri v. Holland. She rightly observes that it is more democratic to have a majority of both houses of Congress decide on our international commitments than to give this authority solely to a supermajority of the Senate. Yet, if we should be concerned about democracy with respect to the making of international commitments, shouldn’t we be at least as concerned about democracy with respect to the making of domestic law? Nevertheless, Oona is perfectly comfortable giving a supermajority of the Senate more domestic legislative power than a majority of two houses of Congress, pursuant to Holland. (A non-self-executing treaty will require that the House of Representatives take part in domestic implementation, but Oona does not appear to condition her support of Holland on non-self-execution. In any event, even when the treaty is non-self-executing, the House may feel constrained to enact implementing legislation to avoid a breach of the agreement.) As multilateral treatymaking becomes increasingly pervasive and increasingly overlaps with domestic regulation, this democracy issue will only continue to grow. If we are to have treaties’ end, it may also be time for Holland’s end.