When Is a Treaty Supreme over the Constitution?

That essentially was the question the Ninth Circuit had to address in the recent case of United States v. Liu. The question arose out of a criminal prosecution by the United States against defendant for running a brothel in Saipan. Defendant argued that the United States had no authority to prosecute her under the commerce clause or the territorial clause. The surprising conclusion of the Ninth Circuit was that to the extent the applicable treaty did not preclude Congress from regulating pursuant to the commerce clause Congress had the constitutional authority to do so. Thus, the treaty trumps the Constitution in that it limits the application of constitutional provisions in a United States territory.

The United States’ authority to regulate criminal activity in the Commonwealth of the Northern Mariana Islands (CNMI) is governed by a 1975 treaty between the Northern Mariana Islands and the United States. The treaty lists specific provisions of the U.S. Constitution that apply to the CNMI, and excludes others, including the constitutional right to trial by jury in criminal and civil actions. The key treaty provision, Section 501, states that “the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if [it] were one of the several states…. Other provisions of or amendments to the Constitution … which do not apply of their own force …, will be applicable within the Northern Mariana Islands only with the approval of the Government of the Northern Mariana Islands and … the United States.”

The Ninth Circuit concluded that the treaty did not by its own terms limit Congress’ commerce clause or territorial clause powers:

The issue of whether the commerce clause or territorial clause apply to the CNMI is misleading. Section 501 sets forth constitutional provisions that are “applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States ….” Section 501 does not include a single constitutional provision that involves Congressional authority to legislate. If we adopted Zheng’s interpretation … Congress would have no authority to enact legislation applicable to the CNMI whatsoever. Such a result is nonsensical and conflicts with § 105 of the Covenant, which expressly provides, ‘The United States may enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands…. Section 105 [of the Covenant] assumes there are constitutional processes that would enable Congress to legislate for the CNMI’ …. [W]e hold Congress has the authority to enact legislation applicable to the CNMI. This authority is not limited by the exclusion or omission of constitutional provisions in § 501 of the Covenant.

While the Ninth Circuit ruled that the treaty did not preclude application of the commece clause or the territorial clause, for me the far more interesting point is that the treaty had the power to do so. I am by no means an expert on the law governing U.S. territories, but it seems odd that the United States could enter into a treaty that would carve out specific provisions of the U.S. Constitution and render them inapplicable in that territory.