The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty

Rick Pildes has posted useful historical background for our debate about whether treaties can increase the legislative power of Congress. I agree with almost everything that he has said. Under the Articles of Confederation, Congress lacked the power to enforce the Treaty of Peace with Great Britain in 1782, and that defect in the Articles was indeed part of the impetus for the Constitution.

This is helpful context, and it is certainly worth noting. I would just add a few sentences to, as it were, put this context in context. Under the Articles of Confederation, Congress lacked the power to do a great many important things — perhaps most importantly, it lacked the power to regulate interstate and international commerce. The inability to enforce the Treaty of Peace was a specific instantiation of this general impotence of Congress. And it is this general weakness that was the overriding impetus for the Constitution.

The Constitution remedied this general defect by giving Congress a robust array of legislative powers that were lacking in the Articles. This impressive list of powers seemed more than sufficient to meet the needs of the nation. Indeed, the primary concern of the antifederalists was that this list went far too far.

But in fact, the Constitution went even further. If at some future date, this list of powers, fearsome as it was, should, for whatever reason, prove insufficient, Article V provides a mechanism — really four distinct mechanisms — by which the Constitution could be amended and Congress’s legislative power could be increased even further. These mechanisms of Article V have, in fact, been utilized seven times to increase Congress’s legislative power.

But the question on the table is whether — in addition to the enumerated powers, and in addition to the four elaborate and express Article V mechanisms for adding to that list — the Constitution also includes a fifth mechanism, unmentioned in the text, by which Congress’s legislative power may be increased, simply by making a treaty.

Justice Scalia, at least, has his doubts: “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.” (oral argument, Golan v. Holder (2012)).

Stay tuned for Rick’s argument that Justice Scalia is wrong.