Somin on Bond

Ilya Somin has a thoughtful post on U.S. v. Bond here. I have only one quibble with what he has said. Ilya agrees with Justice Scalia and me that a treaty cannot increase the legislative power of Congress. But he reaches this conclusion in a slightly different way. The difference is actually an important window into this issue.

If the President signs a treaty promising that Congress will enact certain legislation, but Congress would ordinarily lack the power to enact that legislation, what happens? Missouri v. Holland seems to say that the treaty automatically gives Congress the legislative power at issue. Ilya and I both disagree.

Ilya would say that, under these circumstances, the treaty itself is void. He would say that the President has no power to make such a promise. In his view, the treaty power only empowers the President to make promises that the federal government knows it can keep.

In my view, the answer is different. I believe that the President can make such a promise, even though Congress lacks present power to keep it. Making such a promise is not generally advisable, to be sure, but it is permissible. To see why, consider that for every person, and every politician, and every government, the capacity to make promises exceeds the capacity to keep them. Many of our promises may turn on circumstances beyond our control, including the actions of third parties.

I might contract to build you a house on a particular tract of land by a particular date. Executing the contract might require circumstances, like good weather, that are not within my control. It might also require legal changes, like zoning waivers, that are also not within my control. This does not mean that we cannot make such promises. It merely means that we may fail to keep them.

Every non-self-executing treaty has this feature. Non-self-executing treaties promise that the United States will enact certain legislation. They promise, in other words, that we will utilize a particular constitutional mechanism, the mechanism of Article I, section 7, to achieve a particular outcome. But this mechanism requires the acquiescence of the House of Representatives — and the House has no role in the making of treaties. In every such case, there is the real possibility that the House will refuse to do what the President and Senate have promised, and then we will be in breach. Every time the President and Senate enter into a non-self-executing treaty, they are making a promise that they — and our treaty partners — cannot be certain that the United States will keep.

Now consider the case in which a treaty promises to enact legislation that Congress lacks the power to enact (either because such legislation would violate the Bill of Rights, see Reid v. Covert, or because it would exceed the enumerated powers of Congress, see Executing the Treaty Power). This is, in effect, a promise to use, not the legislative mechanism of Article I, section 7, but the amendment mechanism of Article V. The Article V mechanism, like the Article I, section 7, mechanism, requires the acquiescence of many political actors other than the President and Senate, and there is of course a great risk that these actors will refuse, putting the United States in breach. But this is, in principle, no different than the case above. Here too, the President and Senate are making a promise that turns on the actions of other political actors, a promise that they — and our treaty partners — cannot be certain that we will keep.

It will, of course, almost always be unwise to make such a promise. But perhaps not always. Imagine that the United States is defeated in a disastrous war, and the victorious country requires, as a term of a peace treaty, a concession that would violate the Bill of Rights. It proposes, for example, to allow the United States to maintain some military bases abroad, but insists that any crimes committed by people there, including the spouses of soldiers, must be tried by military commission. Can the United States agree to the term and end the war?

Such a treaty cannot be self-executing; if it were, then making it would violate the Bill of Rights. And if such a treaty were non-self-executing, it would not empower Congress to pass legislation executing it. A treaty cannot itself violate the Bill of Rights, and nor can it empower Congress to violate the Bill of Rights. These are the holdings of Reid v. Covert, and Rick, Ilya, and I all agree with them.

But does it follow that the President has no power to enter into such a treaty in the first place, even if it is non-self-executing? Ilya would say yes: If Congress has no power to execute such a treaty, then the President has no power to sign such a treaty, and if he does so, the treaty is void. But why? Would we really be obliged to fight to the last man rather than sign such a treaty?

This treaty, like all non-self-executing treaties, creates an international “legal” obligation. But this treaty, like all non-self-executing treaties, is not, of its own force, domestic law. It is hard to see how the subject matter of such a treaty exceeds the treaty power; a peace treaty is surely in the heartland of the treaty power. And since the treaty has no domestic legal effect, it’s hard to see how the treaty itself violates the Bill of Rights.

This hypothetical treaty, like all non-self-executing treaties, purports to require the action of other political actors — actions that the President and Senate cannot really guarantee. Most non-self-executing treaties are (uncertain) promises to use Article I, section 7; this one is an (uncertain) promise to use Article V. But why should that matter? The Article V amendment process is as much a part of the Constitution as the Article I legislative power. If a treaty can create an international commitment to exercise the latter, there is no reason in principle why it cannot create an international commitment to exercise the former.

I would say, contra Ilya (but perhaps consistent with Rick?), that the President has power to enter into such a treaty, even though Congress has no present power to execute the treaty. See Executing the Treaty Power at 1920-27.

To reiterate, though, this is a mere intramural dispute. Ilya and I agree with Justice Scalia on the fundamental point: A treaty cannot increase the legislative power of Congress.