24 Jan All You Ever Wanted to Know About the Treaty Power and Federalism, But Were Afraid to Ask*
I am remiss in not linking earlier to this excellent and absorbing discussion of the upcoming US Supreme Court decision in Bond v. United States at the Volokh Conspiracy. Rick Pildes at NYU is doing a nice job, but he is single-handedly taking on Professors Nick Rosenkranz, Ilya Somin, and Eugene Kontorovich on various aspects of the treaty power and its limitations under the U.S. Constitution. So Professor Pildes is a little outgunned, although he is doing a nice job nonetheless.
My own two cents so far: I find the textual argument for a limited treaty-execution power fairly compelling, especially under the Necessary and Proper Clause. I also agree that the Bill of Rights limitation on the treaty power, inferred from the Supreme Court’s plurality decision in Reid v. Covert, is not a particularly powerful precedent in favor of the Missouri v. Holland result. If anything, the Reid v. Covert conclusion that treaties cannot violate the Bill of Rights should limit the impact of the earlier Missouri decision, which may not have agreed with Reid.
But Professor Pildes certainly has a powerful argument on this front (at least to me): If a self-executing treaty can exceed Congress’ Article I powers, than why not a statute implementing that same treaty? What is the structural logic of this result?
For this reason, I associate myself with Professor Curtis Bradley’s view that it makes sense to read a federalism limitation on the self-executing effects of a treaty as well. That question was the subject of Missouri’s main holding, and that holding is also troubling and suspect. I understand that the arguments for limiting the implementation power are stronger, at least textually, but that doesn’t mean there aren’t good structural arguments for limiting the self-executing effects of treaties as well.
People overlook that Missouri v Holland is presented as a property dispute more than a question of powers. At the founding of the US, natural resources appeared to be inexhaustible. Experience with beaver trapping and buffalo herds showed this was not the case, and around the presidency of Teddy Roosevelt (and the cases in question) conservation became an issue. The prior cases on which Missouri based its arguments noted that when a natural resource was the common property of all people, and when it could be regarded as inexhaustible or else was located exclusively in one state (like clams rather than migrating birds) then the 10th Amendment made the regulation of hunting, fishing, and harvesting a matter for state rather than Federal regulation. That is, if Maine adopts rules on lobster pots that the Federal government regards as too lax, then Maine will suffer from the over-harvesting and will have to realize its mistake and correct it. In this case, Missouri cited precedent to assert that on behalf of its citizens, it had an exclusive property right in the “common property” of migrating birds when they were within the state and, therefore, the exclusive right to make rules governing hunting.… Read more »
I still don’t see the structural logic in limiting the treaty power to the other enumerated powers. The States ceded their entire sovereign power to make treaties to the federal government. There must be some entity that can make treaties on matters of State concern. Or did powers somehow mysteriously vanish as they were getting ceded? Given that there is no textual limit on the treaty power, for me the functional argument is pretty determinative regarding treaties adopted in the Constitutional way (i.e., Pres + 2/3 Senate). This, of course, doesn’t answer whether the necessary and proper power allows the legislature to adopting implementing legislation to give domestic force to treaties that are not self-executing. //Regarding Professor Pildes’ argument that you find convincing: with all respect, I do not. The treaty power arises in Article II–it is a power of the executive, not of the legislature, and is not subject to the limits placed on the legislature. Self-executing treaties avoid the limitations of Article I simply because they arise from a totally different federal power. (This is not to say that the president isn’t bound by Article I restraints when executing laws under the “take care’ power, but that is… Read more »
Re…I still don’t see the structural logic in limiting the treaty power to the other enumerated powers. The States ceded their entire sovereign power to make treaties to the federal government.
In Reid v Covert the Court noted that neither the President nor the Senate had the power to amend the Constitution, whether acting alone or in combination.
It also noted that statutes and treaties must comply with the terms of the Constitution, since neither were listed among the prescribed methods in Article V for amending that document. So the thinking goes: that a treaty (self-executing or not) can’t preempt the Bill of Rights or the Constitution and broaden the delegated powers granted to any branch of the federal government.
I fail to see how Reid v Covert is relevant. The holding of Reid is that the Constitution applies to treaties: only those treaties which are in accordance with the Constitution are the law of the land. But my argument above was not that the Tenth Amendment does not apply, but simply that it is not breached. The Tenth Amendment reserves to the States any power that they have not delegated to the federal government. Fine, but they have fully delegated all of their power to make treaties–they retain none of it, and the President is simply exercising a Constitutionally delegated power when he makes treaties on behalf of the United States–and moreover one that is enumerated in Article II as among his powers. There is no breach of the 10th Amendment there. And furthermore, so long as the law is necessary and proper, Congress is exercising an enumerated power specifically delegated to it when it makes laws executing a treaty constitutionally entered into by the President. In other words, yes, Reid says that the provisions of the Constitution apply to treaties, but, as I see it, there is no breach of any provision of the Constitution, and the actors… Read more »
When the Constitution was written treaties resolved disputes between nations. In the last 60 years, however, treaties are increasingly a form of international legislation. The Constitution did not include an enumerated power for the Supreme Court to invalidate a law passed by Congress if it was contrary to the Constitution. That was added later on by Marbury. Reid extends Marbury to Legislation by Treaty. If DOMA is invalidated, the political branches cannot bypass this by adopting the Defense of Marriage Treaty (DOMT) and then claim that because it is a treaty is falls outside the scope of judicial review. However, our Federal system divides domestic legislative power into a State sphere and a Federal sphere. When there is a legitimate international dispute, the Federal government negotiates on behalf of all 50 States and, to the extent that resolution of the dispute requires enabling legislation, the subject matter of the dispute becomes a Federal power even though without the dispute it would have been an exclusive power of the states. However, treaties that simply mandate a code of conduct and do not resolve disputes about legitimate foreign interests do not become a backdoor legislative mechanism completely at variance with what the… Read more »
Howard: your history is off re: actors (and “nation” is even diff. than “state” — see Brierly, etc.) as well as re: treaties only addressing disputes between formal actors in the internaitonal legal process. The U.S., for example, has had treaties with Indian nations (e.g., the Navajo nation) and tribes, as well as with free cities, and other non-state actors. See http://ssrn.com/abstract=1701992
Treaties fairly early on had addressed numerous subjects. They have trumped state powers within the U.S. b/c of the Supremeacy Clause, which expressly and unavoidably mandates that “all” treaties [not merely self-executing ones, or a few] are supreme law and binding on the states, including the state judiciary. Several cases, including Supreme Court cases other than Missouri, have affirmed (which was also affirmed per dictum in Reid) that with respect to treaties the States within the U.S. have no 10th Amendment power. Please see http://ssrn.com/abstract=1484842
With respect to enhancement of congressional power and cases in addition to Missouri, please see our West casebook, Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 251-273 (3 ed. 2009).
Under the Tenth Amendment to the U.S. Constitution, after the formation of the Constitution any remaining state powers or aspects of sovereignty were expressly limited to (1) those “powers not delegated to the United States by the Constitution,” and (2) those powers that are not “prohibited by it to the States.” The treaty power was expressly delegated to the United States in Article II, Section 2 (i.e., the President “shall have Power, by and with the Advice and Consent of the Senate to make Treaties”) and Article III, Section 2 (i.e., “[t]he judicial Power shall extend to all Cases … arising under Treaties”). The treaty power was also expressly prohibited to the States in Article I, Section 10 (i.e., “[n]o State shall enter into any Treaty”). Additionally, the text of the Constitution clearly and unavoidably mandates that “all” treaties are supreme law of the land binding the states and the state judiciary. As Supreme Court cases have long recognized, there is therefore no competing or inhibiting power of the states. Indeed, with respect to treaty law, “the Tenth Amendment is no barrier” and “whatever is within … [the] scope [of the treaty power] is not reserved to the states [and]… Read more »
So Jordan, does this mean that the President and Senate can ratify the Defense of Marriage Treaty with, say, the Mashantucket Pequot Tribal Nation (Foxwoods Casino) and that puts it beyond any challenge. Or on the other side, can it negotiate the Patient Protection and Affordable Care Treaty with them to put the Health Insurance Mandate beyond challenge even if it isn’t a tax. I think the Treaty clause is qualified by an assumption of reasonableness and is subject to challenge in court if used in pretense. Your bold statements are accurate simply because the power has previously been used honestly for the purposes to which it was intended, not as a loophole to achieve a questionable legislative purpose unrelated to any proper treaty.
Don’t forget that a treaty as such must receive consent from 2/3 of the Senators for the President to ratify. That is a significant political break. Such does not exist with respect to a sole Exec. Ag. or, what most forms of U.S. int’l ags. take, a congressional-exec. ag.
We all know that each form is trumped by the Cosnt., but what the Const. requires is, of course, the major issue. Certainly the 10th Amend. “is no barrier” and treaties can be directly operative as law of the United States.
If treaties can prohibit torture anywhere in the U.S. and can protect ducks, I cannot see why they cannot protect women or children.
An “assumption of reasonableness”? surely that would be judicial legislation contrary to the choices of the political branches — activists judges and all that
Response…Daniel said I fail to see how Reid v Covert is relevant.
I didn’t say that it was relevant to Bond. I simply explained its rationale and why it is relevant to some of the more bizarre hypotheticals that are being discussed. Some of those suggest or imply that a treaty can be used to amend the Constitution without the consent of the states. Article V denies the President and the Senate any such power.
Yes, a treaty would not “amend” the Supremacy Clause (Art. VI, cl.2), which expressly and unavoidably mandates vis a vis the states that “all” treaties (not some of them, some that implicate “foreign affairs” [what treaty does not?]} are supreme law of the land and binding on the states and their judiciary. This is unavoidable constitutional text, and coupled with the unavoidable constitutional text in the 10th Amend, there is no inhibiting state power vis a vis treaties — see Reid’s dictum re: Missouri and the 90 cases in my study (32 of which are supreme Court cases!). So text, structure, and early decisions of the judiciary (and all the way up to Missouri and Lara) dictate that there is no limitation with respect to the reach of the treaty power vis a vis the states. To decide otherwise wold be to ignore text, structure, etc. and engage in activist revisionism.
hostage: Thanks for the response. I understand the rationale, but I was trying to express that, if there is a federalism-based restriction, it does not come from the 10th amendment or the list of delegated powers in Article I, but rather from an inherent (I used the word “internal”) limitation within the treaty power itself. Reid stands for the proposition that treaties must comply with the constitution and cannot operate so as to amend the constitution. That’s true but not the issue in regard to federalism, since the treaty power is an explicit, enumerated power that states have ceded to the federal government. The issue is rather whether the treaty power has some sort of internal limitation. I can think of three internal limitations. First, is the treaty power in Article II (dealing with the executive) somehow limited by the list of enumerated powers in Article I (dealing with the powers of the legislature)? I argued before that there was a structural disconnect, that the list of enumerated powers comes in the context of legislation, which the states retain their sovereign powers and cede only limited, enumerated powers to the federal government, whereas the treaty power is given completely and… Read more »
and Daniel, note that Art. VI, cl. 2 expressly applies to “all” treaties and Art. II, Sec. 3 contains no limitation regarding subject matter or anything else. The treaty power is an independent power. An imaginary implied “federalism” limit is totaly inconsistent with the text of the Const. (esp. the 10th Amend.), and so is an imaginary “subject matter” limitation.