Bradley Book Symposium: The Scope of the Treaty Power

by Jean Galbraith

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.”

Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court.

Professor Bradley’s objective is “to describe the central currents of the law rather than to argue a particular position.”  He succeeds impressively in this task.  A reader will come away from his chapter on treaties with a clear sense of the law as it now stands, as well as some sense of its past and of its possible future.  Professor Bradley conveys this doctrinal map while at the same time leaving the alert reader clear as to where he stands.  “Some commentators take the position that …” is quite often followed by a citation to his prior work, or to scholarship opposing positions taken in his prior work.  While I don’t agree with every precise assessment of the state of the law, I greatly admire the care that Professor Bradley has taken in distinguishing between his own views and the state of the doctrine and in according space in both the narrative and the footnotes to the diverse range of viewpoints.

Among the topics that Professor Bradley takes up is the scope of the treaty power.  As Professor Bradley notes, the Supreme Court in Missouri v. Holland (1920) held that Article II treaties can address issues that are otherwise beyond the scope of Congress’s Article I powers and that Congress can implement these treaties through its necessary and proper power.  Professor Bradley identifies three possible constraints that may nonetheless restrict the treaty power’s scope – federalism, individual rights, and subject matter.  He leads with federalism.  Perhaps a better way to categorize the scope of the treaty power, however, is to think of “subject matter” as a general category containing within it both external constraints related to what matters are proper subjects to treaties and internal constraints related to what the U.S. constitution further prohibits the United States from accepting in treaties.  (I speak here only of doctrinal constraints, not of the considerable political constraints imposed by the treaty-making process.)  Federalism can be protected by both external and internal constraints, although in my view both of these protections are quite limited as a doctrinal matter.  A historical example of an external constraint is the prohibition on the cessation of land without a state’s consent, which can be traced to the law of nations (as other parts of the February 1793 exchange between Hamilton and Jefferson suggest).  An example of the internal constraint would be a treaty provision that denied a state a republican form of government.  But under the current Supreme Court case law, including Missouri v. Holland and language on the scope of the treaty power in Geofroy v. Riggs and other cases, these internal constraints are quite limited.  I think Professor Bradley goes too far in asserting, for example, that commandeering is “probably” barred to the treaty power.  We have case law suggesting that federalism presents little if any serious bar to the treaty power; we also have more recent cases barring Congress from commandeering state officials; and the intersection of these two issues seems to me a wide open doctrinal question.

International Law in the U.S. Legal System presumably went to press before the Supreme Court granted cert in Bond v. United States, which opens the door for re-examination of certain aspects of Missouri v. Holland.  Ms. Bond was prosecuted for possessing and using deadly chemicals against a romantic rival in violation of the Congressional statute implementing the Chemical Weapons Convention.  The case nominally deals with Congress’s necessary and proper power, rather than with the treaty itself.  In a blog post on Lawfare, Professor Bradley appears to accept that the necessary and proper power applies to treaty implementation and is not subject to federalism limits beyond any that apply more generally to the treaty power.  He does, however, suggest that the treaty power should be externally limited to “matters that are of truly mutual concern to the parties”and that Ms. Bond’s possession of deadly chemicals may not be such a matter.  I think that this issue of external constraints – rather than internal constraints – is exactly the right space to lodge most debates about the treaty power and federalism.  I won’t take a position here on what the standard should be for external limits.  Applying Professor Bradley’s, however, I have little difficulty in concluding that the possession of deadly chemicals by non-state actors is an appropriate matter of mutual concern among nations. We shall see next year what the Court thinks.  Regardless, the cert grant in Bond is just one example of the dynamic and exciting nature of foreign relations law today.  There is much going on – and I very much hope future editions of International Law in the U.S. Legal System will unpack these developments down the road.

In closing, let me congratulate Professor Bradley on his valuable treatise and thank Opinio Juris (especially An Hertogen) for enabling me to comment on it.

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