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.