Will the Supreme Court Revisit Missouri v. Holland? More Likely as of Yesterday.

by Peter Spiro

The Supreme yesterday gave the green light to an individual asserting a Tenth Amendment defense in a criminal prosecution under a federal statute enacted pursuant to the Chemical Weapons Convention (Bond v. United States).  The facts of the case are certainly more lurid than our run-of-the-mine foreign relations law cases.  The basic claim:  the Treaty Power doesn’t add anything to other congressional authorities under the Constitution.

That’s taking Missouri v. Holland head on, something that hasn’t happened since the case was decided in 1920.  There haven’t been any subsequent challenges not only because almost all federal legislation has been enabled by other clauses (the Commerce Clause most notably, of course), but also because Congress hasn’t treated the Treaty Power as adding anything to its quiver (see, for instance, the practice with the human rights conventions).

So what’s the betting?  Assuming it gets to the question, I think there’s a pretty good chance the Court overrules Missouri, as part of its federalism agenda and on the theory that these days the Treaty Power would know no limit (with the Offenses Clause as a wild card).  Would this be the end of the world as we know it?  I don’t really think so, although it would obviously create some additional obstacles to incorporation/execution in particular cases.  Two things to keep in mind:  First, the state are often pretty cooperative in adopting various international standards (see for example Julian Ku’s important piece on the subject).  Second, it’s not as if Washington is imposing many international obligations on the states even with Holland on the books.

If nothing else, a new decision could give Peggy an excuse to reprise the fabulous conference she put on at Mizzou in 2008!

http://opiniojuris.org/2011/06/17/will-the-supreme-court-revisit-missouri-v-holland-more-likely-as-of-yesterday/

One Response

  1. Response…
    First, Missouri was not the first or last case on point.  Second, it is impossible for a Justice committed to the express mandate of the U.S. Constitution to rule that the 10th Amend. overrides the treaty power when Art. VI, cl. 2 expressly mandates that “all” treaties are supreme law of the land and the 10th Amend. expressly and unavoidably requires such a result since the Const. has expressly delegated the treaty power to the federal government and expressly denied the treaty power to the States –either one of which expressly obviates any reach of the 10th Amend. re: the federal treaty power.  See, e.g.,
    http://ssrn.com/abstract=1484842
    which also addresses relevant views of Founders and Framers and the federal and State judiciary — and tracks those areas where Supremacy has already been recognized.

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