Will Bond v. United States Matter?

by Julian Ku

Bond v. United States is one of those cases that promises both more and less than it seems.

At first glance, it seems an important and fascinating case because it is the first time the U.S. Supreme Court will revisit any aspect of the famous 1920 Oliver Wendell Holmes Jr.’s decision in Missouri v. Holland.  That decision, arguably the most famous decision in the U.S. foreign affairs law canon, held that the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution.  It also held that Congress’ power to implement treaties through normal legislation is similarly unconstrained.

By agreeing to decide Bond, the Supreme Court may reconsider the second (and less famous) of those two holdings.  That second holding, on the much understudied “treaty implementation” power, was challenged in a 2005 Harvard Law Review article by Georgetown Professor Nicholas Rosencranz. (BTW, large congratulations should go to Nick for almost single-handedly creating, or at least reviving, this argument.)

As a matter of high constitutional principle about the nature of the U.S. Constitution’s grant of enumerated powers, this could be a huge case.  But there are reasons to doubt the practical importance of any decision by the Court to revisit Missouri v. Holland in the context of Bond.  Why?  Because the central holding of Missouri v. Holland was that treaties are not constrained by the Tenth Amendment.  Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues here).

Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty.  The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment).  Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years. That Tax Convention with Chile?)  Or they are approved like most trade agreements via the route of the congressional-executive agreement.

So Bond might actually result in giving the President and the Senate the incentive to go the “self-execution” route.  As a matter of politics, this might be difficult in today’s Senate, but I think future treaty supporters might not think it would be safer to go the self-execution route to avoid future Bond-like challenges to their treaties.

http://opiniojuris.org/2013/01/19/will-bond-v-united-states-matter/

3 Responses

  1. Response… Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues)

    On the other hand the Court may finally get around to reversing the error in Missouri v Holland. In Reid v. Covert, 354 U.S. 1 (1957) the Court held that the Congress and President may acquire more power only by amendment of the Constitution, and that treaties and statutes are not among the methods listed in Art. V for adopting such an amendment.

  2. ” the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution”
    This is not an accurate statement of the text of the decision. “it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because, by Article II, § 2, the power to make treaties is delegated expressly”.
     
    Missouri v Holland then asks the question of whether an international agreement on the subject matter is essential and unavoidable. Given that Missouri asserted a property interest in the migratory birds, the decision notes that “Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with.”
    Once it is clear that a treaty is required to preserve the property in which the State of Missouri has asserted an interest, then since it is not possible for the State to negotiate the treaty itself, so the Federal Government must use its explicitly delegated authority to negotiate on behalf of Missouri and all other states. But with the negotiation of the treaty also comes the authority to enforce the treaty once it is ratified.
    In other words, while the Federal Government might not have had the authority to legislate absent an international dispute absolutely requiring resolution, the existence of the dispute Federalizes the subject under the treaty clause, which then means that text of the 10th Amendment subsequently permits the implementing legislation.
    However, in any matter where the subject matter does not compel negotiating a treaty (that is, any subject other than migrating species like fish, or common resources like lake water, or navigation of common waterways, or use and quality of a river that crosses borders) then Missouri v Holland is not a precedent. The necessity (not the desirability, the necessity) of a treaty combined with the inability of a State to negotiate on its own are essential elements of the decision.

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