What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?

What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?

Things are starting to heat up around the pending U.S. Supreme Court case Bond v. United Stateswhich will test the scope of Congress’s power to implement U.S. treaties.  The case is a big one — challenging as it does the holding of the most famous of U.S. foreign affairs law cases — Missouri v. Holland and Oliver Wendell Holmes’ wonderfully written (if somewhat ambiguous) opinion.  The amicus briefs are pouring in.  And with lots of lurid facts regarding affairs, revenge and chemical weapons, I assume the case will garnering increasing interest from the main stream media.

There’s already plenty of scholarship on (a) the scope of the treaty power (I’m a fan, if not always a follower of, the work of Curt Bradley, David Golove and Ed Swaine on this topic) as well as (b) Congress’s power to implement U.S. treaties (jump-started by Nick Rosenkranz).  Most of that work employed originalist research along with textual and structural arguments (my own contribution was to note the Executive’s self-regulation with respect to relying on Missouri).

Amid the many many pages of treaty power-related research, however, there’s been remarkably little academic attention to subsequent historic practice — how the implementing power was perceived after the framing and before Holmes’ opinion in Missouri v. Holland.  So, it’s with great interest that I read Jean Galbraith‘s new article — Congress’s Treaty-Implementing Power in Historical Practice.  It examines that history and comes to a somewhat surprising conclusion:  prior to Missouri v. Holland, both those who favored and those who opposed expansive uses of the U.S. treaty power believed Congress had authority to implement otherwise valid U.S. treaties.  That’s a finding that clerks and others working on the Bond case might want to investigate and think about a bit more.  Obviously, it’s not going to be determinative, but I’d assume the historical practice should be referenced and incorporated into whatever outcome the Court reaches.

For those interested in a more nuanced summary of Jean’s article, here’s her abstract:

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.

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[…] it all here.   Hat tip to Duncan Hollis at Opinio Juris, who discuses the article here.  There is a very interesting debate about the Bond case between Rick Pildes and Nick Rosenkranz […]


Response…What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?
In the past, the Supreme Court hasn’t even allowed the Congress to use the Berne Convention and its delegated powers regarding patents and copyrights to require enforcement of copyright laws against State agencies. The Courts have had similar holdings regarding patents and trademarks that are covered by conventions administered by WIPO. Those treaties didn’t make any difference IIRC.


Congress would not be “expanding” its powers because it has an express power under Art. I, Sec. 8, cl. 10, as well as other relevant express and implied powers.  Moreover, the state has no relevant power given the Tenth Amendment’s express recognition that powers delegated to the feds (e.g., treaty power and Cong. sec. 8, cl. 10 power) are excluded from the states and the express recognition that powers denied the states (such as the treaty power, art. I, Sec. 10) are also excluded — i.e., the 10th is “the answer”.
Moreover, there were cases on point BEFORE Missouri v. Holland.  See
31 Suffolk Transnatonal Law Review 301, 318-24 (2008) and numerous cases cited (also available on SSRN).


Response…Congress would not be “expanding” its powers because it has an express power under Art. I, Sec. 8, cl. 10, as well as other relevant express and implied powers.
If the Congress can expand its powers through legislation that implements a treaty, then why did the Supreme Court decision in the case of Florida Prepaid v. College Savings adversely affect copyright owners’ ability to bring copyright, patent, or trademark infringement suits against states and their instrumentalities in the Courts?
Treaties, like statutes, can’t authorize things that the Constitution forbids and are not listed among the methods that can be used to amend the Constitution. The Supreme Court has taken the position on a number of occasions that the States enjoy residual sovereignty and immunity in areas that happen to be the subject matter of treaties. So its an interesting question.