Bond v. United States and the Treaty Power

As guest blogger Rick Pildes notes, the Supreme Court on Friday agreed to hear Bond v. United States, an important case addressing the issue of whether international treaties can authorize Congress to legislate on issues that would otherwise be under the exclusive control of state governments.

This is one of the very rare cases that comes before the Supreme Court twice. I discussed the previous Bond ruling – an important federalism decision – here:

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

I covered some of the issues at stake in the present iteration of Bond in this post:

In my view, unconstrained federal power under the treaty clause isn’t as dangerous as unconstrained federal power under the Commerce Clause or the Necessary and Proper Clause. A treaty only becomes law if ratified by a two-thirds supermajority of the Senate, which is a high hurdle to overcome, and in practice usually requires a broad national consensus. Nonetheless,… I think the power to make treaties is best understood as a power allowing the federal government to make commitments regarding the use of its other enumerated powers, not a power that allows the federal government to legislate on whatever subjects it wants, so long as the issue is covered by a treaty. Among other things, the latter would enable the federal government to circumvent limits on the scope of its [authority] by paying off a foreign power (e.g. – a weak client state dependent on US aid) to sign a treaty covering the subject.

The view outlined in my last post on this subject flows naturally from the conventional understanding of treaties as contracts between nations. As Federalist 64 puts it, “a treaty is only another name for a bargain.” A person who makes a contract only has the right to make commitments with respect to decision-making authority that he already possesses. For example, I cannot sign a binding contract committing a third party to teach constitutional law at George Mason University, unless he has specifically authorized me to do so. Similarly, the federal government cannot sign an international contract (i.e. – a treaty) making commitments on issues outside the scope of its other powers. This presumption could have been overriden by a specific provision of the Constitution authorizing the president or Congress to sign and enforce treaties on subjects that are otherwise outside the scope of their power. But there is no such provision. The Necessary and Proper Clause does not give such authority to Congress for reasons outlined by co-blogger Nick Rosenkranz in his important article on the subject.

One could argue that Article VI of the Constitution, which makes treaties “the supreme law of the land” authorizes the making of treaties that go beyond the scope of structural limits on federal power. But Article VI only gives that status to “treaties made, or which shall be made, under the authority of the United States” (emphasis added). A treaty covering issues outside the scope of federal power goes beyond “the authority of the United States,” and is therefore not part of the “supreme law of the land.” Under the very broad modern interpretation of the Commerce and Necessary and Proper Clauses, the federal government has the authority to make and enforce treaties on a very wide range of issues – but not an infinite range.

I am not nearly as expert on the treaty power as Rick Pildes and co-blogger Nick Rosenkranz, and have not done much academic work on the subject. So it’s possible there’s a key point I’m missing here. We shall see. In the meantime, interested readers should check out the the debate on this issue between Pildes and Rosenkranz, with links compiled here.