There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress

Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim that treaties can increase the legislative power of Congress.

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

The conventional view (bolstered by a celebrated bit of purported drafting history, which proved to be false; see Executing the Treaty Power at 1912-18) is that this mechanism derives from a combination of the Necessary and Proper Clause and the Treaty Clause. (I believe that Rick acceded to this conventional view at our debate two weeks ago in New Orleans.) The Necessary and Proper Clause provides: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Treaty Power is certainly an “other Power[] vested by th[e] Constitution.” The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

So the Treaty Power is, in fact, a referent of the Necessary and Proper Clause, and thus the conjunction of these two clauses is essential to an analysis of whether a treaty can increase the legislative power of Congress. Here, then, is the way that these two Clauses fit together as a matter of grammar:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the [President’s] Power … to make Treaties….”

The question is the scope of that power. What is a “Law[] for carrying into Execution the … Power … to make Treaties”?

For purposes of this inquiry, the key term is the infinitive verb “to make.” The power granted to Congress is emphatically not the power to carry into execution “the treaty power,” let alone the power to carry into execution “all treaties.” Rather, on the face of the text, Congress has power “To make all laws which shall be necessary and proper for carrying into Execution the … Power … to make treaties.”

This power would certainly extend to laws appropriating money for the negotiation of treaties. And it would likewise embrace any other laws necessary and proper to ensure the wise use of the power to enter treaties. These might include, for example, appropriations for research into the economic or geopolitical wisdom of a particular treaty, or even provisions for espionage in service of the negotiation of a treaty. But on the plain constitutional text, such laws must have as their object the “Power … to make treaties.” This is not the power to implement non-self-executing treaties already made.

The Supreme Court saw this textual point clearly when construing a statute with similar language. In Patterson v. McLean Credit Union, the statute at issue concerned the “right … to make … contracts.” This provision is textually and conceptually parallel to the “Power … to make Treaties” both because of the key infinitive verb “to make” and because, as Chief Justice Marshall explained, non-self-executing treaties are, in fact, in the nature of contracts. This is what the Court said in Patterson:

The right to make contracts does not extend, as a matter of either logic or semantics, to conduct … after the contract relation has been established, including breach of the terms of the contract …. Such postformation conduct does not involve the right to make a contract, but rather implicates performance of established contract obligations….

Just so here. The “Power … to make Treaties” does not extend, as a matter of either logic or semantics, to the implementation of treaties already made. See Executing the Treaty Power at 1880-85. So there is no textual foundation for the claim that treaties can increase the legislative power of Congress.