One Last Clarification on Federalism and the Treaty Power

Before leaving off the subject of federalism and the treaty power, I would like to clarify one aspect of my position. In arguing, as I have from the beginning, that the treaty power cannot expand the scope of federal authority beyond that which is granted by other parts of the Constitution, I do not mean to suggest that treaties may only cover issues that fall within the scope of Congress’ authority under Article I, Section 8 of the Constitution.

I agree with Nick Rosenkranz’s comment that treaties “need not necessarily be on the same subjects enumerated in Article I, section 8 — a section that, by its terms, enumerates the lawmaking powers of Congress.” But that does not mean that the treaty power is not limited by the doctrine of enumerated powers at all. The Constitution gives the federal government lots of other powers beyond those listed in Article I Section 8, most notably the powers of the president listed in Article II, and those of the federal courts outlined in Article III. The treaty power may make commitments requiring the use of those other powers, as well as the congressional powers listed in Article I. For example, a military alliance like that created by the NATO treaty makes commitments regarding the exercise of the president’s powers as commander-in-chief of the armed forces. As I have previously emphasized, Article VI of the Constitution makes treaties the law of the land so long as they “are made, or which shall be made, under the authority of the United States.” The “authority of the United States” includes all powers of every branch of the federal government.

What is not clear from Nick’s last post is whether and to what extent he disagrees with me about the status of self-executing treaties that not only exceed the scope of congressional power under Article I, Section 8, but also don’t fall within the range of any of the other powers granted to the federal government. Perhaps he will take up that issue at a future time.

In conclusion, I would like to thank Rick Pildes for his excellent guest-blogging on this subject, and co-bloggers Nick Rosenkranz and Eugene Kontorovich for their insightful contributions to the debate.