Reasons to Worry About Overreaching on the Treaty Power

In his most recent thoughtful post on the treaty power, guest blogger Rick Pildes describes my position as follows:

Ilya… is concerned with Congress enter[ing] into a treaty pretextually – not for genuine reasons of foreign policy, international relations, and the like – but for the purpose of gaining legislative powers that would otherwise be in the hands of the states. But if we are worried about that concern (it’s not clear we have a historical example of this actually having happened), the way to address it is to conclude that a pretextual treaty of this sort is not a valid exercise of the treaty power.

In actuality, however, Congress’ and the President’s motives in entering into a treaty are just one part of what I worry about. “Genuine reasons of foreign policy” and “gaining legislative powers that would otherwise be in the hands of the states” are not mutually exclusive categories. Congress or the president might genuinely believe that a treaty creates foreign policy benefits for the US, while also seeking to expand federal power relative to the states. Even if their motives are completely benevolent and they have no conscious desire to make a power-grab, they could still end up violating the Constitution in ways that cause more harm than good and set a bad precedent for the future. This may only be a modest-size problem so long as federal power under the Commerce and Necessary and Proper Clauses is interpreted extraordinarily broadly. But, in my view, that interpretation is over-broad and needs to be pared back. When and if that happens, the treaty power will become a more tempting back door for circumventing constitutional limits on federal power. Even in the status quo, various scholars and activists have proposed the treaty power as a tool for getting around limits on congressional Commerce Clause authority imposed by decisions such as Lopez, Morrison, and NFIB v. Sebelius.

As I noted in previous posts, an unconstrained treaty power is less dangerous than unlimited congressional power under the Commerce and Necessary and Proper Clauses, because treaty ratification requires a two-thirds majority in the Senate. But that doesn’t mean we have no reason for concern at all. A temporary supermajority could still validate a dangerous expansion of federal power that would give Congress overbroad authority that persists long after that supermajority disappears. It could do so either deliberately or because treaty supporters simply fail to foresee the danger.

Rick says that Nick Rosenkranz and I differ on the key question of whether Congress and the President could establish a self-executing treaty that went beyond the limits that otherwise constrain federal power. I am not convinced that Nick’s position really does imply that such a treaty is legally binding and can be enforced by the courts. But if it does, Nick and I do indeed disagree on this point.

As discussed in an earlier post, Article VI of the Constitution only makes treaties the “supreme law of the land” if they “made…under the authority of the United States.” The reference to “the United States” here means the federal government. The full passage states that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” “Laws of the United States” are contrasted with “Laws of any State” and made supreme over them. “Laws of the United States” is clearly a reference to federal law as distinct from state law. In the same way, “Authority of the United States” refers to federal government authority as distinct from state authority. A treaty requiring action outside the scope of federal power goes beyond “the authority of the United States” and therefore isn’t part of the “supreme Law of the Land.”