The Limits on the Treaty Power

Hopefully, I will be able to leave the treaty power issue alone for a while after this post, but let me finish elaborating my views in the context of also responding to the series of posts from Nick and others since my last posting.

1.  My principal argument has been directed against the specific limit on the treaty power that Nick argues follows from the Constitution’s text.  As I said in my initial post, I believe there might well be some constitutionally derived limits on the treaty power, but that Nick’s particular argument as to what those limits are is not convincing.  Curtis Bradley expressly agrees with me on that.   As I read him, Ilya appears to as well, but I’m not sure he has fully worked out his view yet.  But I don’t think anyone in this exchange has endorsed the specific view that is unique to Nick:  that self-executing treaties can override federalism constraints, but that non-self executing treaties, followed by implementing legislation, cannot.

It was Nick’s particular theory that I was primarily debating, not the full Missouri v. Holland set of issues.  At times, the discussion has run the former and the latter together, but to clarify what’s at stake, we need to be careful to keep Nick’s theory separate from other theories on how the treaty power might be constitutionally bounded.   If there are limits, we need a different account than Nick’s of what they might be.

2.  Further on Nick’s particular theory:  Nick’s theory has the same Reid v. Covert “problem” that my approach has, though nothing in Nick’s recent post on that issue recognizes that.  A longstanding question in this area has been if treaties cannot override individual rights provisions in the Constitution, why should they be able to override federalism-based constitutional provisions/doctrines (leave aside for now whether it’s actually right to conceptualize Congress as “overriding” any authority the Constitution otherwise grants states when Congress is enforcing treaties).

That’s a genuinely serious question, but it’s every bit as much a question for Nick as for me.  Nick’s view is that self-executing treaties can override federalism constraints — but of course, Nick does not believe self-executing treaties can override individual rights provisions of the Constitution.  So he, too, must give an account of why federalism constraints are treated differently than individual rights constraints when it comes to the scope of the national government’s power to adopt and enforce treaties.

3.  The same point is true about the debate on the historical evidence that Nick and I were having — though here I am guilty of not expressing my point clearly enough.  I still do not see virtually any historical evidence Nick can offer to support the specific understanding of the Constitution that he is advancing.  That is, I do not see any of the sources taking the view that the national government can expand the legislative power it otherwise has via self-executing treaties but not via non-self executing treaties.

However, it is definitely true that throughout U.S. history, particularly before the Civil War, one can find many statements from  political figures that treaties cannot expand the legislative power of Congress.  That is what Nick’s sources say and one could find many similar statements.  Some of my earlier posts inadvertently blurred this distinction, so I want to be clear that the anti-Holland view has been expressed throughout U.S history, especially by Southerners before the Civil War.  My reading of the record was that this was always a minority view, but at the point we start debating majority v. minority views, I recognize we are getting into more complex historical terrain.  It is Nick’s particular view that has virtually no historical support of which I’m aware.

4.  Putting Nick’s theory to the side, what are the more plausible places to look, in my view, for limits on the treaty power (in addition to the widely recognized Reid v. Covert, individual rights limitations)?  On this issue, I agree with a good deal of what Curtis Bradley has to say, at least in theory.  I also think any limitations have to apply the same way to self-executing and non-self-executing treaties; I don’t see any constitutional basis for distinguishing the two.  Turning then to those potential limits, I see three such possible limitations, at least in theory:

(1) Any legislation that purports to rest solely on Congress’ powers to implement treaties must actually be appropriately tied to the purposes, principles, and text of the treaty being implemented.  Federalism values, as well as other constitutional values, can influence judicial judgments of whether such legislation is closely enough tied to the treaty itself.  I suspect this might be the most important limitation, in practice, because it is the one it is easiest to imagine courts enforcing.

Indeed, in the Bond case itself, I share the intuition that there is something that seems odd, at least initially, in the notion that if the federal government would not otherwise have the power to criminalize a person’s use of toxic chemicals to attack another person, that such legislation is justified as an appropriate means of enforcing the Chemical Weapons Convention.  I have not studied the text of the Convention, the federal statute, or the facts enough to have a final judgment on that question, which is why I can only say that initially, the link between this application of the statute and the Convention seems thin.  I would hope the Court would give serious attention to that question.

(2) In addition, any treaty has to be a valid exercise of the treaty power, as I have said throughout.  What makes a treaty valid or invalid?  In principle, I would say something like a treaty must be an actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government.  More historically, this idea is reflected in the notion that treaties can deal with those subjects that are “appropriate objects of negotiation and agreement among states.”  Thus, if international cooperation is not helpful in achieving legitimate aims of the national government, the national government does not have the power to enter into a treaty on that subject.

I realize this formulation — or any one I can envision to replace it — will necessarily be vague.  It might also be that any limitation of this sort cannot be made judicially administrable and therefore should not be enforced by courts.  But a principle like this seems to me the right one, and I think an idea of this sort underlies Curtis’s analysis as well.

(3) This final limit is already contained within principle (2), I think, but just to be clear about it, let me also repeat, as I have said in earlier posts, that the national government cannot validly enter into a treaty solely for the purpose of gaining additional domestic legislative powers.  Pretextual treaties of this sort would not be valid exercises of the treaty power; such a treaty would not be a means of gaining the cooperation of other nations in ways that advance the legitimate national interests of the national government.

Although critics of the treaty power often like to raise these kind of examples, I want to reiterate that I am not sure there is strong evidence of the U.S. ever having entered into a treaty for this reason — even in the eras in which the Constitution was understood to limit the domestic powers of the national government much more greatly than since the New Deal.  So this fear might be the kind of abstract fear that could be raised about any powers the national government has, but real-world political constraints might make it highly unlikely such fears would ever come to fruition.

5.  The Tenth Amendment question is not, in fact, whether treaties can “override” federalism constraints.  The question is how the Constitution reconciles the national government’s treaty powers with the lawmaking powers states otherwise have. I think the answer is reflected in the three principles I’ve outlined above:  the Constitution does not permit the national government to displace state legislative authority except through a valid treaty and implementing legislation that is appropriate, according to some version of the three constraints above.  But if a treaty and legislation meet these criteria, then this is an area the Constitution makes one of federal power (states might have some concurrent power, of course, depending on how the treaty is written).

6.I don’t think my critics can escape so easily from the Treaty of Peace and similar examples at the time of the Constitution’s formation and early decades of operation.  As Curtis notes, many of these treaties — including the Treaty of Peace — deal not just with debtor/creditor relations, but with the ability of aliens to hold land and pass it on through inheritance in the states.  At common law, aliens did not have all of these rights, though states by legislation could grant them.  But the national government through treaties often guaranteed these rights and those guarantees trumped state property laws.  Some critics want to “save” the validity of these treaties(because they recognize the power of the notion that surely the national government must have the capacity to make and enforce these kinds of treaties, which serve such obvious national interests)  by arguing that Congress could have regulated state property laws through some enumerated power, such as the power over foreign commerce.

But I think these views are anachronistic.  As far as my understanding goes, neither constitutional doctrine nor political figures debating these treaties thought that the national government could regulate state property laws merely because an alien was involved.  It was only through these treaties (which were self-executing)  that the national government had the power to adopt substantive property rules of this sort.  In other words, these treaties were all exercises of the Missouri v. Holland power.  I think Curtis agrees with this, though I am not completely certain, in which case he agrees that valid treaties do give the national government the power to “override” state laws.  The real question, then, is what makes a treaty valid.  I agree that that should be the central question.