Missouri v. Holland vs. Reid v. Covert

My thanks to Rick Pildes and to our commenters for pushing me to reframe the precise issue at stake in Bond and my precise position about it. I think we now have a better understanding of where we part ways.

Here is the question: If a non-self-executing treaty promises that Congress will do something that it otherwise lacks power to do, what happens? Can the President (with the consent of the Senate), just by making such a promise, thus empower Congress to do that thing, even if Congress lacked the power to do so the day before? Does the treaty increase the legislative power of Congress?

Now, Rick and I agree about the general importance of complying with treaties. And we agree that our pre-constitutional history of non-compliance was an important impetus for the Constitution. And yet — despite this important history that Rick keeps emphasizing — we also agree that the answer is generally no.

If the treaty promises that Congress will abridge the freedom of speech, despite the First Amendment, then Rick and I (and the Supreme Court) agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it. See Reid v. Covert.

If the treaty promises that Congress will suspend the writ of habeas corpus in peacetime, despite Article I, section 9, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

If the treaty promises that Congress will commandeer state officials, despite Printz, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

Now, what if the treaty promises that Congress will regulate INTRAstate commerce? What if, for example, it promises that Congress will regulate possession of guns near schools? In my view, the answer is the same. Congress lacked that power yesterday, see U.S. v. Lopez. And the treaty cannot confer it. See Executing the Treaty Power.

But this is where Rick and I part ways. This last case, Rick says, is an exception to the rule. In this case, Rick argues that even though Congress lacked the power to regulate INTRAstate commerce before the treaty, now it has the power. Rick argues, in other words, that in these circumstances, the treaty increases the legislative power of Congress.

Eugene Kontorovich and Josh Blackman and I have explained why this last case should not be an exception to the general rule. Rick has not yet explained why it should.