The Volokh Conspiracy

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.

Apologies for the delay, the flu bug set me back enough to cancel class and to be unable to re-engage this important dialogue sooner.   I hope a couple more posts will be enough to leave this discussion in the hands of readers for their own judgment.

To re-state my understanding of the Constitution’s design:  Treaties were to be hard to enter into (hence the 2/3 Senate ratification requirement), but easier to enforce than under the Articles of Confederation, where compliance depended on the willingness of state legislatures.  If a treaty is a valid treaty, Congress’ power to implement the treaty is not constrained by any “reserved” legislative powers of the states; the Constitution ensures that the legislative powers to implement treaties lie with the national government.  This is a structural inference from the treaty-making power in Art. II and also a result of the necessary and proper (NP) clause.  There are limits on what treaties can do, but those limits are to be found in various other provisions of the Constitution (Eugene is correct that those limits are likely not exhausted just by the Bill of Rights) and in the requirement that treaties must be valid exercises of the treaty power.

The Constitution was specifically designed to overcome “The Treaty of Peace” problem:  peace treaties often require a nation to honor the claims of foreign creditors, eg, and Congress was giving the power to override state contract/debt laws in order to enforce the terms under which the Revolutionary War was ended.  So far, I don’t think any of the responses from Nick, Ilya, and Eugene have yet explained how their views would enable Congress successfully to enforce the Treaty of Peace.  In my view, it’s a serious strike against any interpretation of the Constitution if it cannot explain how the Constitution solves one of the fundamental problems to which the Constitution was specifically designed to be a solution.

Nick’s approach is particularly odd to me because it generates the conclusion that the national government can trump state legislative powers if it makes a treaty self-executing, but not if the treaty requires domestic legislation to be implemented.  Nick gets to this view, in part, by claiming that Congress’ exercise of one enumerated power cannot give Congress additional legislative powers it does not have already.  I want to say more about that claim of Nick’s, in addition to my earlier argument that the national government’s war powers have always stood against Nick’s view.

Nearly every exercise of power by Congress under the NP clause also seems to be inconsistent with Nick’s claim, unless I misunderstand that claim.  Congress traditionally had no power to regulate intrastate railroad rates, for example, but if it regulates interstate rates through its commerce clause powers, then it can regulate intrastate rates as a necessary means of making the interstate regulatory regime effective.  Or, Congress has no enumerated power to create national corporations or to create a Bank of the United States; yet once Congress is create currency, paying soldiers and sailors, purchasing property, and the like, it has the power to charter the Bank as a means of making effective the exercise of these other powers.

Here is Nick’s apparent answer to this problem, from his article at n.91:

Similarly, cases like Houston, East & West Texas Railway Co. v. United States (Shreveport Rate Cases), 234 U.S. 342 (1914), are not to the contrary. That case upheld an order of the Interstate Commerce Commission regulating intrastate railroad rates, because the order was necessary to maintain its regime of interstate rates. But to say that Congress can regulate intrastate railroad rates only when and because it is also regulating interstate railroad rates is not quite the same as saying that regulating interstate railroad rates expands the power of Congress to reach intrastate rates. The case is probably best read to hold that a single act of Congress (the Interstate Commerce Act of 1887) regulating both interstate and intrastate rates is necessary and proper to carry into execution the power to regulate interstate commerce.  It does not follow, however, that an act of Congress regulating only intrastate rates would be constitutional – even if there were already another act of Congress on the books regulating interstate rates.

In other words, assume that (1) X alone is within Congress’s power; (2) Y alone is not; and (3) Y is necessary to carry X into execution. It may be that a single act of Congress X + Y is constitutional, because X + Y may fairly be described as a law regulating interstate commerce. It does not follow, however, that Y could ever be enacted alone, even after the enactment of X, because Y alone could never be described as a law regulating interstate commerce. Evaluation of the Article I power to enact a statute may rightly depend on the content of the whole statute, but probably should not depend on the existence of other statutes already enacted. The question in each case should be whether any given statute – all of it, in itself – may be said to be an exercise of an enumerated power (citations omitted).

Thus, Nick’s view is that it would be unconstitutional for Congress to regulate intrastate commerce in a statute passed after  Congress had regulated interstate commerce, but constitutional if Congress regulates both interstate and intrastate commerce at the same time in one statute.  Needless to say, no Supreme Court case has come close to endorsing that position, as far as I know, and I will let readers decide how persuasive they find it.  In addition, laws like the one creating the Bank of the US — and many laws enacted under the NP clause — are not enacted at the same moment as exercises of the enumerated powers to which those later laws are necessary and proper.  The Bank of the US law was a freestanding law enacted after the national government was engaged in other activities to which the Bank was viewed as necessary.  But Nick is driven to his claim about how congressional powers purportedly work by his view that self-executing treaties can displace state legislative power (the equivalent to a comprehensive federal law that regulates both interstate and intrastate commerce in one moment) but not non-self executing treaties.

On the historical record, Nick takes issue with my statement that long before Missouri v. Holland it was “close to universally accepted” that Congress’ power to enforce treaties was not limited by any “reserved” legislative powers of the state.  Ironically, one of the strongest pieces of evidence I can offer (in a blog post) for that statement is:  Nick’s own article.  Before making that statement, I re-read Nick’s articles with a specific eye out for every piece of historical evidence it offers to support Nick’s view, since I assume Nick would have marshaled all the supportive evidence.  Yet I was surprised how thin that evidence turns out to be; Nick reprises virtually all of it his short blog post.

This evidence consists of (1) one newspaper article from 1879; (2) the position of one Senator, Wilson Cary Nicholas of Virginia, during debates over the Louisiana Purchase — but from my recollection of those debates, this statement was isolated and it was not an issue that anyone else engaged, agreed with, or took issue with it, because it stood askew to any of the issues actually being debated.  But leaving that aside, if one Senator once made such a statement, that’s not much of  a basis for concluding that there has long been a significant understanding, even if a minority position, within the political branches, of the anti-Missouri v. Holland view; (3) a statement in one Supreme Court case in 1836 (Nick’s post says “cases,” but he cites only this one majority opinion) and in St. George Tucker’s treatise on the treaty power.  Yet neither this Court case nor the treatise, as I understand them, supports Nick’s particular view:  neither takes the view that self-executing treaties can override state legislative power but non-self-executing ones cannot.  These two statements, on their face (I haven’t gone back to the sources to read them in context), support a different view, closer to Ilya’s, which is that no kind of treaty can expand the legislative powers of Congress.  And they remain two statements, in one treatise and one 1836 Court decision.

Having read Nick’s article, I said the Missouri v. Holland view had been “close to universally accepted” throughout U.S. constitutional history — not universally accepted.  I know enough constitutional history to know that there is always at least a few bits of support that one can find for most views on almost any difficult issue in constitutional history.  But based on the evidence offered so far, I remain surprised by how little evidence there appears to be for Nick’s view throughout American constitutional history.  For the evidence on the other side, showing how central it was to the Constitution’s design and structure that the U.S. be able to honor its treaty commitments and for the historical understanding of the treaty power, see the articles referred to in my earlier posts by Dan Hulsebosch and David Golove.  I stand willing to be corrected on that point and now that the Supreme Court will be hearing the Bond case, perhaps we will learn much more about what the full historical record shows on these issues.

Recent posts (and comments) help clarify what is at stake in the debate about the treaty power and the Bond case.  American constitutional doctrine since WW II, at least, is clear that a treaty cannot give Congress the power to violate the individual rights provisions of the Bill of Rights.  That’s the principle of Reid v. Covert.  Nick and I agree about that.  The only issue is whether a treaty can alter the balance of lawmaking power that would otherwise exist between the national and state governments, given the Constitution’s grant of exclusive powers to the national government to make treaties and the effort to ensure that the U.S. would be able to comply with its treaty commitments.

In addition, Ilya and Nick actually disagree in profound ways that they do not yet acknowledge or recognize and that clarify my differences with Nick’s position.  While this sentence gets a little ahead of the supporting argument so far, my position is going to be that Congress has legislative power to implement and enforce a valid treaty (as long as it doesn’t violate the Bill of Rights, as noted above).  I recognize that puts a lot of weight on the question what makes a treaty valid (or invalid), but I think that’s precisely where the weight ought to be.

Ilya’s example illustrates this point; he is concerned with Congress enter 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.

That is not, however, the position Nick argues.  Nick argues that the national government can exercise powers it would not otherwise have vis a vis the states as long as it does so through a self-executing treaty ­­– one that does not require further legislation to have binding domestic legal effect.   Thus, all the parade of horribles that worry Ilya are not actually addressed by Nick’s argument.  As long as done through a self-executing treaty, the national government can do all the things that concern Ilya.  The only barrier Nick’s approach creates is to the national government adopting a non-self-executing treaty and then legislating to implement that treaty with powers otherwise left to the states.

I think that’s a particularly peculiar way to resolve “the treaty problem.”  Put in other terms, Nick’s approach derives a lot of its intuitive appeal, I think, from the instinct to think there must be some limit on the treaty power.  But what’s at stake here is the specific argument of what that limit actually is.  My view is that if we are to look for such limits, the most appropriate place would be in determining what constitutes a valid treaty; if a treaty is valid, Congress then has the power to implement it.  Nick’s position is that there are no limits on the national government’s powers when it makes a self-executing treaty, and those limits only arise when Congress legislates to implement a non-self-executing treaty.  That’s the burden of Nick’s argument – to explain why sensible constitutional designers would have given the national government power to enter into self-executing or non-self executing treaties, the power to override state legislative powers in the former context, but no such power in the latter context.

Perhaps that helps clarify, for Ilya and others, what’s at stake here:  it’s what the best place to look for limits on the treaty power is, if there are any judicially-enforceable limits.  Let me briefly now make the last two general points I promised in response to Nick’s scholarship:

Third, Nick wants to put all the blame for the current structure of the law on Justice Holmes’ opinion for the Court in Missouri v. Holland, which has just one sentence on the issue.  That sentence states the view I am defending:  if a treaty is valid, Congress has the power to implement it through appropriate legislation (subject to the Bill of Rights, as above).  Critics of that view like to focus on this one sentence as a way of trying to delegitimate the position:  it’s just one sentence, unsupported by any analysis, in one case, that “establishes” this position.  The implicit suggestion is that Holmes just invented this theory of the treaty power, that it did not exist before Holland, and that Holmes didn’t even feel any obligation to offer the reasoning to support his creation of this “novel” position.

But that view is deeply misleading in terms of the larger arc of Americna constitutional history.  That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland  and in the all the years since.  In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.  Again, there were debates about what makes a treaty valid, but if valid, the overwhelming weight of authority and practice was that Congress had the power to implement the treaty through appropriate legislation.

That’s the peculiarity of Nick’s position:  that self-executing treaties can displace state authority, but that non-self executing treaties cannot.

Fourth, we should return to the bigger picture that the historical context in my initial post describes.  The burden of any approach to the treaty issue, it seems to me, is to offer an account of how that approach provides adequate answers to the profound concerns that drove the Constitution’s Framers in the first place – the concern to ensure the capacity of the national government to honor valid treaty obligations and to avoid the failed state of affairs under the Articles that followed from making treaty compliance hostage to the politics and policies of the states.  Following on my first post, let’s call this the “Treaty of Peace” problem.  As far as I can tell, Nick’s answer seems to be either, let the Senate and the President make the treaty self-executing; rely on the states to enforce the treaty; or get a constitutional amendment to enable Congress to enforce the treaty.  But these latter two are not the answer to the treaty problem – they are a statement of the problem to which the Constitution was supposed to provide a solution.  And thus the burden of Nick’s argument, it seems to me, remains explaining why a sensible way of working with the constitutional design is to conclude that self-executing treaties can displace state power but non-self-executing ones cannot.

To the surprise of many Supreme Court observers, the Court today granted cert. in the Bond case, which Nick and I have been debating on this blog.  The grant was a surprise because the Court had re-listed Bond for discussion at conference seven or eight times; after that many re-listings, the most typical outcome is cert. denied, with at least one dissenting opinion.  It’s possible a majority of the Court had initially voted to deny cert. but the dissenting opinion was convincing enough it persuaded the Court it should not decide the issue without plenary consideration.  It’s also possible the Court was uncertain throughout about whether to grant cert. and was working through the several issues the case presents before concluding it was appropriate to hear on the merits.

In light of the grant, it’s perhaps worthwhile to collect in one place the debate Nick and I have conducted so far.  See here, here, here, and here.  The biggest issue the case presents is whether Missouri v. Holland was rightly decided on the scope of Congress’ power to legislate to enforce valid treaties, which is precisely the issue we have been debating.  We will continue that debate over the coming days, now with the greater sense of urgency and interest the Court’s grant generates.

As we move into the areas where Nick and I disagree about the treaty power, I want to avoid getting mired in the smaller constitutional issues we could debate and instead focus on four of the deepest and most general problems I see in Nick’s approach.  This post will address the first two.  Nick’s argument, remember, is that a treaty cannot generate any legislative power to implement the treaty that Congress otherwise would not have.

 First, Nick’s approach accepts that if the Senate and President choose to make a treaty self-executing, then that treaty can indeed displace the states’ traditional legislative powers.  Thus, under Nick’s approach, a treaty to eliminate the death penalty that was self-executing would validly and constitutionally have the power to displace the states’ traditional police-power authority to decide for themselves whether to adopt the death penalty – even if Congress would lack legislative power to do so absent the treaty.  In other words, the Senate and the President can jointly ensure faithful compliance with a treaty obligation by making the treaty self-executing.

It is easy to overlook this fact in responding to Nick’s “solution” to the treaty problem.  But because Nick’s approach would apply only if the President and Senate choose not to make a treaty self-executing, so that Congress must enact legislation to implement the treaty as domestic law, much of the rhetorical force behind Nick’s argument, as well as the constitutional foundation for it, seems to me to dissipate.

On the rhetorical side, Nick invokes concerns such as the one he quotes Justice Scalia as expressing at a recent oral argument:  can it be the case that if the President and Senate enter into a treaty with Zimbabwe, Congress now has legislative powers it would not otherwise have to enforce that treaty?  But even under Nick’s approach, the President and the Senate can displace the prior constitutional allocation of federal/state legislative authority as long as they make that treaty with Zimbabwe self-executing.  Moreover, the meaning of a self-executing treaty is that it has immediate domestic legal effect; that means the federal courts would have the power (and obligation) to implement the treaty through interpretation.  The only option taken off the table by Nick’s approach is giving Congress the power to implement and interpret the treaty through legislation (it’s unclear whether Justice Scalia endorses Nick’s position or whether Justice Scalia would conclude, contrary to Nick, that a self-executing treaty can also not displace the legislative powers otherwise allocated to the states).

On the constitutional side, it is surely hard to understand as a structural or functional matter why the Framers would have intended — or why a sensible way of reading and reasoning about the Constitution would be — that the Senate and the President acting jointly can displace state law but the Senate and the President are constitutionally forbidden from deciding that the best means of implementing a treaty is to require the subsequent agreement of the House, Senate, and the President.  After all, to make a self-executing treaty requires only the agreement of the President and 2/3 of the Senate.  To give a non-self-executing treaty domestic legal effect requires that same level of agreement plus the later agreement of the House, the Senate, and the President to enact legislation. The latter process would seem more protective, not less, of both the states’ legislative powers and the private interests that would be affected by the treaty.

Thus, it turns out that Nick’s solution rests on a very thin foundation:  while his approach is driven by (understandable) anxieties about whether a treaty can expand the powers of the federal government vis a vis the states, his solution enables the federal government to do exactly that.  All the weighty concerns about the federal/state balance of power thus disappear if the Senate and President simply chose to make the treaty self-executing.  But if they do not make that choice, then (and only then) is Congress as a whole denied the power to implement that treaty through the legislative process.  In terms of constitutional structure or logic, that seems like such a peculiar outcome – and such a strange way of “solving” the “treaty problem,” if there is a problem – that we would need, at the least, a compelling account of why the Constitution would have been designed and is best read this way, especially in light of the centrality to the Constitution’s design of enabling the federal government to honor treaty obligations.

Second, Nick tries to generate support from his argument by providing various seeming puzzles that the Missouri v. Holland approach purportedly spawns:

Aren’t Congress’ powers supposed to be fixed and enumerated?  How can Congress acquire new powers outside the enumerated powers simply because a treaty has been adopted?  Does this mean there is some magical on-off switch for congressional powers, by which Congress gains new powers it would not otherwise have from the national government’s exercise of the treaty power?  In general, he argues, the valid exercise of one power the federal government has cannot create new national powers, can it? Under Holland, does this mean that if the United States revokes the treaty, the legislation implementing it then becomes invalid?  But, Nick continues, legislation must be either valid or invalid when enacted.  Nick offers a number of challenges of this sort that arise from the view that Congress can gain power to enforce a treaty that Congress would not otherwise have.

But none of these seeming puzzles are all that puzzling once we focus on the larger constitutional structure.  The short answer to all of these kind of questions is that, yes, that is precisely the way the Constitution works.  To gain perspective on that, let’s broaden the discussion away from the treaty power in isolation to consider other national powers — specifically, the war powers.  There is no question that the existence of war gives birth to numerous kinds of powers the national government does not otherwise have  — including the power to change the balance of federal/state powers.

The most obvious example — especially if you have recently seen the movie, Lincoln — is the Emancipation Proclamation.  President Lincoln always took the view that the Constitution did not give the national government the power to abolish slavery where it existed.  As a matter of the ordinary allocation of domestic, national legislative and presidential power, there was no power to abolish slavery.  Yet over the course of the war, Lincoln came to the view that abolishing slavery in the states in rebellion would be an important and constitutionally legitimate means of facilitating the Union war effort — and that he had the power, even acting unilaterally, to abolish slavery in the states in rebellion.

Similarly, during the war Congress passed the Confiscation Acts.  These laws authorized the uncompensated confiscation of property held by those in rebellion.  Again, there was no question that absent the activation of the war powers, Congress would have (1) no power to regulate state property law and (2) no power to confiscate property without compensation (Art. I, by the way, gives Congress enumerated power to regulate “captures,”.but there is no express textual power to confiscate enemy property).  Yet as with President Lincoln’s action, the activation of the war power gave Congress power to displace state law it would otherwise lack.

The U.S. can, of course, enter into a state of war through a formal congressional declaration of war.  That legal act then triggers new national powers.  Such a declaration is probably the most visible, direct analogue to the legal act of entering into a treaty.  The U.S. can also, of course, legitimately enter into military conflict in some contexts without a formal declaration of war. But either way, war and related uses of military force trigger new national powers, for both Congress and the President.  Among many other consequences, the entry into war or miltiary conflict gives the national government powers to displace state authority in areas otherwise allocated to state legislative power under the Constitution.

Thus, all Nick’s puzzles are really not that puzzling once we focus on the Constitution’s larger structure at the intersection of international and domestic matter.  Yes indeed, the exercise of one power the Constitution gives the national government can activate other national powers the federal government does not otherwise have.  There is nothing mysterious or magical or surprising about that.  And the treaty power is not unique in this way.

Similarly, Nick thinks there is a great puzzle in the fact that if a treaty is revoked, what do we do about a law enacted to implement the treaty that Congress would not otherwise have power to adopt?  Does that law now become unconstitutional?  Can that make sense?

Again, the war powers example clarifies why these questions are not as puzzling as Nick makes them seem.  If Congress adopts a war measure that it can only enact as long as a war is going on, then yes, that measure becomes unconstitutional going forward once the war ends.  Congress might have power to require or permit military detention of enemies, including those captured in the U.S., but once the war ends, any such legislation would no longer be constitutional.  There is no deep mystery here and the same is true with the treaty power.

* * *

I will make my final two points more briefly in the next post, then turn to other possible approaches to “the treaty problem.”

I want to thank Eugene and Nick for graciously inviting me to guest blog here.

One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers.  This question is also pending before the Supreme Court in Bond v. United States, in which the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993.  The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.

The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty Power.  Distilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers.  More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact.  In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.

The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters.  In starting to think about these issues, it’s essential to understand  that ensuring that the United States would be able to credibly make and faithfully honor international agreements was one of the central purposes driving the creation of the Constitution.  This aim was not just one of many desirable goals the Constitution was designed to help achieve; it was one of the central animating causes that led to the calling of the Constitutional Convention, the abandonment of the Articles of Confederation, and the overall design and structure of the Constitution.  See here for a full history.

Today, it is easy to forget how fundamental it was to the Constitution’s design that the U.S. be able to make and honor treaties.  The most important treaty in U.S. history is still the Treaty of Peace with Great Britain in 1782, which ended the Revolutionary War.  The inability of the U.S. to honor its obligations under the Treaty, and the resulting national-security threat to the U.S. from British retaliation for the inability of the U.S. to honor its Treaty commitments, was one of the major events behind the Constitution’s creation.

The Treaty recognized the independence of the U.S. and our claim to expansive boundaries.  On the British side, an essential demand was that the U.S. override  state war-time confiscation laws that had eliminated or reduced pre-War debt obligations of American debtors to British creditors.  In the Treaty, the U.S. agreed to do so to ensure these debts would be honored in full; as part of the pact, the British also agreed to withdraw from their forts in the northwest of the U.S.  But all that Congress could do, under the Articles of Confederation, was to ask the states to honor these international commitments the U.S. had made, and Virginia (whose citizens owed the largest portion of these debts) refused to do so.  In retaliation, the British refused to withdraw from their forts and held the security of the U.S. hostage.

Notice that the Treaty regulated property or contract claims — debts — that are ordinarily regulated under state law.  In addition, this problem of states undermining the capacity of the U.S. to honor its treaty obligations and be a credible nation in world affairs, with consequences to both the security and economic prosperity of the country, was a general problem under the Articles (for a fuller history on the Treaty of Peace, see the magisterial article on the history of the treaty power:  David Golove, Treaty-Making and the Nation).

Numerous provisions reveal the extent to which the Constitution was designed to remedy this defect.  Although treaties were made difficult to enter into, requiring 2/3 support in the Senate for ratification, the Constitution sought to ensure that the U.S. would have the capacity to honor valid treaties.  Thus, the Constitution expressly makes treaties part of the “supreme law of the land;” the Art. III federal judicial power expressly extends to cases arising under treaties, to ensure their effective enforcement; the states are expressly denied power to enter into treaties; and the states are also denied power to enter into international compacts without congressional consent.

In addition, the Constitutional Convention explicitly debated but rejected the proposal to  limit the subject matter of treaties into which the U.S. could enter, because of the view that the U.S. needed to have the power to decide over time the subject on which it would be desirable to enter into treaties to promote the  interests of the U.S.  Moreover, the Founding Era is overflowing with statements and positions that express the necessity and importance of the Constitution enabling the U.S. to honor its treaty commitments.   As just one brief glimpse, here is what Federalist Papers #22 (by Hamilton) has to say:

 The treaties of the United States, under the present Constitution [of the Confederation], are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation.

This brief account of the historical problems and context against which the Constitution was crafted is necessary to set the stage for considering Nick’s approach to the “treaty problem.”

Yet pushing back against all this history and original understanding is the kind of intuition or anxiety that fuel’s Nick’s argument and related ones that have arisen throughout U.S. history:  if no limit on the treaty power and related national powers exists, can’t the national government subvert the federal/state balance of power that the Constitution also works so hard to establish?  To make this concrete, let’s assume Congress does not have the legislative power to abolish the death penalty in the states.  If the U.S. then enters into a treaty on this subject, can Congress now legislate to abolish the death penalty?  Or, to take the issue in Bond itself, if Congress would not otherwise have the power to regulate an individual’s possession and use of toxic chemicals, can Congress gain this power as a means of implementing the Chemical Weapons Convention?

The issue takes on even more heightened stakes with the rise of human rights treaties the U.S. has signed in the post-WWII era.  If Congress would not otherwise have the power to legislate in these areas, can it do so as a means of implementing these treaties?   These questions illustrate the tension or puzzle or conundrum about the treaty power.

This post has gone on long enough in providing the historical perspective needed to assess Nick’s argument.  In subsequent posts, I will offer my reasons for not being persuaded by Nick’s approach to the treaty power.  I will then suggest some alternative approaches.