Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste: The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be […]
Archive | Tenth Amendment
Does The Treaty Power Threaten Our System of Limited Government?
By Nick Rosenkranz on October 29, 2013 3:27 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
Senator Ted Cruz and I will discuss. Heritage Foundation, Wednesday, October 30th, 11:00am. Details here. Video via Heritage and possibly C-SPAN.
SCOTUSblog: Questioning Congress’s Legislative Authority to Implement Treaties
By Nick Rosenkranz on August 21, 2013 1:42 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
The “Academic Highlight” over at SCOTUSblog features Bond v. United States and Executing the Treaty Power.
The Solicitor General’s Brief in Bond v. United States
By Nick Rosenkranz on August 20, 2013 9:42 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
Regular readers are familiar with Bond v. United States, the pending case that presents the question of whether, per Missouri v. Holland, a treaty can increase the legislative power of Congress. I posted about Paul Clement’s brief on behalf of Ms. Bond here, and I posted about my brief on behalf of the Cato Institute […]
Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects
By David Kopel on March 16, 2013 4:21 pm in Asset Forfeiture, Constitutional History, Constitutional Law, Criminal Law, Federalism, Guns, Supreme Court, Symposia, Tenth Amendment, War on Drugs
That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction: In this Article we discuss the synergistic […]
Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress
Yesterday, the Supreme Court granted certiorari in United States v. Bond, which raises the question of whether a treaty can increase the legislative power of Congress. Guest Blogger Rick Pildes has already noted the cert grant here, and Ilya Somin posted his thoughtful take on the case here. I merely add that I am delighted […]
There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress
By Nick Rosenkranz on January 16, 2013 3:31 pm in Constitutional History, Constitutional Law, Tenth Amendment, Treaties
Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim […]
Drug Treaties Do Not Empower Congress To Override Or Repeal State Referenda Legalizing Marijuana
In a press release last week, the President of the International Narcotics Control Board, Raymond Yans, asserted that the recent referenda legalizing marijuana in Colorado and Washington “are in violation of the international drug control treaties.” He is almost certainly wrong about that; federal drug laws keep the United States in compliance with such treaties […]
Reducing the Drug War’s Damage to Government Budgets
By David Kopel on May 14, 2012 4:29 pm in Constitutional History, Criminal Law, Federalism, Proposed Legislation, Supreme Court, Tenth Amendment, War on Drugs
That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state […]
Independence Institute brief on Medicaid mandate
By David Kopel on January 19, 2012 2:30 pm in Constitutional History, Constitutional Law, Constitutional Theory, Health Care, Spending Clause, Tenth Amendment
On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument: By imposing the Medicaid mandates in the Affordable […]
Supreme Court: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.”
By David Kopel on December 1, 2011 5:54 pm in Constitutional History, Constitutional Law, Health Care, Taxing and Spending Clause, Tenth Amendment
So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court. At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly […]
Reagan’s infamous speech in Philadelphia, Mississippi
By David Kopel on August 16, 2011 6:18 am in Elections, History, Housing, Political Ignorance, Racism, Tenth Amendment
In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black […]
Scotusblog essays on Obamacare’s constitutionality
By David Kopel on August 3, 2011 11:46 am in Constitutional Law, Federalism, Health Care, Taxing and Spending Clause, Tenth Amendment
This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to […]
Kopel comment on states’ victory on health control lawsuit.
By David Kopel on October 14, 2010 5:06 pm in Commerce Clause, Congress, Constitutional Law, Health Care, Individual Mandate, Spending Clause, Standing, Taxes, Taxing and Spending Clause, Tenth Amendment
My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum. The court entirely rejected the administration’s claim that the penalty for disobeying […]
Cert. Grant in 10th Amendment Case
Granted this morning, Bond v. United States. Question presented: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” The circuits are split, and defendant was convicted in […]