Does Congress Have the Power to Enforce Treaties? Part II

As we move into the areas where Nick and I disagree about the treaty power, I want to avoid getting mired in the smaller constitutional issues we could debate and instead focus on four of the deepest and most general problems I see in Nick’s approach.  This post will address the first two.  Nick’s argument, remember, is that a treaty cannot generate any legislative power to implement the treaty that Congress otherwise would not have.

 First, Nick’s approach accepts that if the Senate and President choose to make a treaty self-executing, then that treaty can indeed displace the states’ traditional legislative powers.  Thus, under Nick’s approach, a treaty to eliminate the death penalty that was self-executing would validly and constitutionally have the power to displace the states’ traditional police-power authority to decide for themselves whether to adopt the death penalty – even if Congress would lack legislative power to do so absent the treaty.  In other words, the Senate and the President can jointly ensure faithful compliance with a treaty obligation by making the treaty self-executing.

It is easy to overlook this fact in responding to Nick’s “solution” to the treaty problem.  But because Nick’s approach would apply only if the President and Senate choose not to make a treaty self-executing, so that Congress must enact legislation to implement the treaty as domestic law, much of the rhetorical force behind Nick’s argument, as well as the constitutional foundation for it, seems to me to dissipate.

On the rhetorical side, Nick invokes concerns such as the one he quotes Justice Scalia as expressing at a recent oral argument:  can it be the case that if the President and Senate enter into a treaty with Zimbabwe, Congress now has legislative powers it would not otherwise have to enforce that treaty?  But even under Nick’s approach, the President and the Senate can displace the prior constitutional allocation of federal/state legislative authority as long as they make that treaty with Zimbabwe self-executing.  Moreover, the meaning of a self-executing treaty is that it has immediate domestic legal effect; that means the federal courts would have the power (and obligation) to implement the treaty through interpretation.  The only option taken off the table by Nick’s approach is giving Congress the power to implement and interpret the treaty through legislation (it’s unclear whether Justice Scalia endorses Nick’s position or whether Justice Scalia would conclude, contrary to Nick, that a self-executing treaty can also not displace the legislative powers otherwise allocated to the states).

On the constitutional side, it is surely hard to understand as a structural or functional matter why the Framers would have intended — or why a sensible way of reading and reasoning about the Constitution would be — that the Senate and the President acting jointly can displace state law but the Senate and the President are constitutionally forbidden from deciding that the best means of implementing a treaty is to require the subsequent agreement of the House, Senate, and the President.  After all, to make a self-executing treaty requires only the agreement of the President and 2/3 of the Senate.  To give a non-self-executing treaty domestic legal effect requires that same level of agreement plus the later agreement of the House, the Senate, and the President to enact legislation. The latter process would seem more protective, not less, of both the states’ legislative powers and the private interests that would be affected by the treaty.

Thus, it turns out that Nick’s solution rests on a very thin foundation:  while his approach is driven by (understandable) anxieties about whether a treaty can expand the powers of the federal government vis a vis the states, his solution enables the federal government to do exactly that.  All the weighty concerns about the federal/state balance of power thus disappear if the Senate and President simply chose to make the treaty self-executing.  But if they do not make that choice, then (and only then) is Congress as a whole denied the power to implement that treaty through the legislative process.  In terms of constitutional structure or logic, that seems like such a peculiar outcome – and such a strange way of “solving” the “treaty problem,” if there is a problem – that we would need, at the least, a compelling account of why the Constitution would have been designed and is best read this way, especially in light of the centrality to the Constitution’s design of enabling the federal government to honor treaty obligations.

Second, Nick tries to generate support from his argument by providing various seeming puzzles that the Missouri v. Holland approach purportedly spawns:

Aren’t Congress’ powers supposed to be fixed and enumerated?  How can Congress acquire new powers outside the enumerated powers simply because a treaty has been adopted?  Does this mean there is some magical on-off switch for congressional powers, by which Congress gains new powers it would not otherwise have from the national government’s exercise of the treaty power?  In general, he argues, the valid exercise of one power the federal government has cannot create new national powers, can it? Under Holland, does this mean that if the United States revokes the treaty, the legislation implementing it then becomes invalid?  But, Nick continues, legislation must be either valid or invalid when enacted.  Nick offers a number of challenges of this sort that arise from the view that Congress can gain power to enforce a treaty that Congress would not otherwise have.

But none of these seeming puzzles are all that puzzling once we focus on the larger constitutional structure.  The short answer to all of these kind of questions is that, yes, that is precisely the way the Constitution works.  To gain perspective on that, let’s broaden the discussion away from the treaty power in isolation to consider other national powers — specifically, the war powers.  There is no question that the existence of war gives birth to numerous kinds of powers the national government does not otherwise have  — including the power to change the balance of federal/state powers.

The most obvious example — especially if you have recently seen the movie, Lincoln — is the Emancipation Proclamation.  President Lincoln always took the view that the Constitution did not give the national government the power to abolish slavery where it existed.  As a matter of the ordinary allocation of domestic, national legislative and presidential power, there was no power to abolish slavery.  Yet over the course of the war, Lincoln came to the view that abolishing slavery in the states in rebellion would be an important and constitutionally legitimate means of facilitating the Union war effort — and that he had the power, even acting unilaterally, to abolish slavery in the states in rebellion.

Similarly, during the war Congress passed the Confiscation Acts.  These laws authorized the uncompensated confiscation of property held by those in rebellion.  Again, there was no question that absent the activation of the war powers, Congress would have (1) no power to regulate state property law and (2) no power to confiscate property without compensation (Art. I, by the way, gives Congress enumerated power to regulate “captures,”.but there is no express textual power to confiscate enemy property).  Yet as with President Lincoln’s action, the activation of the war power gave Congress power to displace state law it would otherwise lack.

The U.S. can, of course, enter into a state of war through a formal congressional declaration of war.  That legal act then triggers new national powers.  Such a declaration is probably the most visible, direct analogue to the legal act of entering into a treaty.  The U.S. can also, of course, legitimately enter into military conflict in some contexts without a formal declaration of war. But either way, war and related uses of military force trigger new national powers, for both Congress and the President.  Among many other consequences, the entry into war or miltiary conflict gives the national government powers to displace state authority in areas otherwise allocated to state legislative power under the Constitution.

Thus, all Nick’s puzzles are really not that puzzling once we focus on the Constitution’s larger structure at the intersection of international and domestic matter.  Yes indeed, the exercise of one power the Constitution gives the national government can activate other national powers the federal government does not otherwise have.  There is nothing mysterious or magical or surprising about that.  And the treaty power is not unique in this way.

Similarly, Nick thinks there is a great puzzle in the fact that if a treaty is revoked, what do we do about a law enacted to implement the treaty that Congress would not otherwise have power to adopt?  Does that law now become unconstitutional?  Can that make sense?

Again, the war powers example clarifies why these questions are not as puzzling as Nick makes them seem.  If Congress adopts a war measure that it can only enact as long as a war is going on, then yes, that measure becomes unconstitutional going forward once the war ends.  Congress might have power to require or permit military detention of enemies, including those captured in the U.S., but once the war ends, any such legislation would no longer be constitutional.  There is no deep mystery here and the same is true with the treaty power.

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I will make my final two points more briefly in the next post, then turn to other possible approaches to “the treaty problem.”