The Volokh Conspiracy

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “[I]t may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement of its meaning, even if the result may be viewed as simplistic. If there is nuance that has escaped us, it is for the Supreme Court to elucidate.” Id. at 164-65 (footnote omitted).

Judge Ambro was even more explicit in concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in . . . Holland . . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

Id. at 170 (Ambro, J., concurring) (quoting Rosenkranz, supra, at 1868 (2005)).

That one conclusory sentence from Holland implies that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would otherwise lack such power. It implies, in other words, that Congress’s powers are not constitutionally fixed, but rather may be expanded by treaty.

In Holland, Justice Holmes provided neither reasoning nor citation for this proposition. It appears in that one conclusory sentence, in a five-page opinion that is primarily devoted to a different question. And this Court has never elaborated. The most influential argument supporting this proposition appears not in the United States Reports but in the leading foreign affairs treatise. This argument has largely short-circuited jurisprudential debate on the question. But recent scholarship has shown that the historical premise of this academic argument is simply, demonstrably false.

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that “[t]he powers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone–or a foreign government alone–can decrease Congress’s power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.

Holland is wrong on this point and it should be overruled. This Court should hold that treaties cannot vest Congress with additional legislative power.

Cato has more here. Our brief itself is available here.

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. Several of us, including guest blogger Rick Pildes, debated the question at length earlier this year (my final post includes links to all the others). Now, the Court is poised to decide the question.

Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste:

[T]he government is left to argue that, in our constitutional system, a valid non-self-executing treaty grants Congress a plenary power to regulate all conduct that bears a rational relationship to the treaty .... [T]hat contention is fundamentally incompatible with the Constitution and this Court’s precedents. Missouri v. Holland does not establish that proposition, but if it did, it could not be reconciled with more recent decisions that respect our basic constitutional structure. Neither any clause of the Constitution alone nor all of them in combination grants Congress that kind of police power. And the last place such plenary power lies inchoate, waiting to be unleashed by a ratified treaty, is the Necessary and Proper Clause. An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).

I will be posting the other briefs (including mine, for Cato et al.) as they are filed.

I have put up a new working paper on SSRN, entitled Jurisdiction Over Israeli Settlement Activity in the International Criminal Court. It is not about the legality of settlements. Rather, it is about whether repeated and growing threats by Palestine and its supporters to make an international case out of it are consistent with the admissibility requirements of the ICC. I welcome substantive comments (as well as inquiries from law review editors).

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.

The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.

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.

This will be my final post of the debate with guest-blogger Rick Pildes about whether a treaty can increase the legislative power of Congress. In this post, I will just make some brief concluding remarks.

1 Rick has been at pains to suggest a fundamental disagreement between Ilya and me. This is tactically clever – opening up a second front. And Ilya and I do have an interesting theoretical disagreement. But on the fundamental point — the point on which Rick and I agreed to debate, the point on which I wrote in the Harvard Law Review, the point on which the Court has granted certiorari — Ilya and I are in perfect agreement with Henry St. George Tucker’s leading treatise, with Senator Wilson Cary Nicholas during the Louisiana Purchase debate, with the Supreme Court in Mayor of New Orleans v. United States, and with Justice Scalia at oral argument last term: a treaty cannot increase the legislative power of Congress.

2 In my last post, I pointed out that Missouri v. Holland is in deep tension with Reid v. Covert, and that it is Rick’s burden to explain why a treaty cannot empower Congress to violate the Bill of Rights (or Article I, section 9, or certain structural limits like the anti-commandeering principle) but can empower Congress to exceed its enumerated powers. Rick’s most recent post acknowledges that his approach has this “Reid v. Covert ‘problem’” and that it is “a genuinely serious question.” But he makes no attempt to answer it. Instead, Rick resorts to jujitsu. This is “every bit as much a question for Nick,” he insists, and leaves it at that.

But Reid v. Covert does not pose a problem for me. The treaty power is a power given to the President in Article II, and forbidden to the states in Article I, section 10; thus it is not a reserved power of the states under the Tenth Amendment. If a treaty is self-executing, then it creates domestic law of its own force, per the Supremacy Clause, and that law must be consistent with all restrictions on the content of domestic law — the Bill of Rights, etc. However, it 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, not the treatymaking powers of the President. About all this, Rick and I actually agree (though he scarcely lets on that we do).

If, however, a treaty purports to promise that Congress will make domestic law in our usual way, via Article I, section 7, (as in Missouri v. Holland and Bond v. United States), then all the usual restrictions apply to any such acts of Congress. Congress must act via biacameralism and presentment (even if the treaty says that it need not); Congress cannot violate the Bill of Rights (even if the treaty says that it must), see Reid v. Covert; Congress cannot suspend habeas in peacetime (even if the treaty says that it can); Congress cannot commandeer state officials (even if the treaty says that it can); — and Congress cannot exceed its enumerated powers (even if the treaty says that it must), see Executing the Treaty Power.

It is only this very last bit, about enumerated powers, on which Rick disagrees — his one exception to the rule. This is the “Reid v. Covert ‘problem’ that [his] approach has.” It is a problem that he has acknowledged but made no attempt to solve.

3 Finally, I am obliged to point out that Rick has never offered a textual argument for his position, though I twice challenged him to do so (here and here). In his six long posts, he never so much as quoted the relevant constitutional clauses. Again, before 2005, defenders of Holland never needed a textual argument, because they relied on an ostensibly dispositive bit of drafting history. But now that this purported history has been debunked, see Executing the Treaty Power at 1912-18, the defenders of Missouri v. Holland will surely need to return to the constitutional text, to see what it actually says. On careful reading, it does not entail that a treaty can increase the legislative power of Congress.

In conclusion, let me offer my heartfelt thanks to Rick Pildes for conducting such a spirited debate on these pages. Rick signed on for a one-on-one debate, but I’m afraid that my excellent and irrepressible co-conspirators, Ilya Somin and Eugene Kontorovich, made it something more like three-on-one. Rick never complained, and he argued eloquently. I say again: he is the most worthy adversary that I have encountered on this topic. Thank you for your excellent posts, Rick.

Here, in chronological order, are links to all of our prior posts in this series.

1/13 Rosenkranz
1/13 Kontorovich
1/14 Pildes
1/16 Rosenkranz
1/16 Pildes
1/16 Rosenkranz
1/18 Pildes
1/19 Somin
1/19 Rosenkranz
1/20 Rosenkranz
1/20 Somin
1/21 Pildes
1/21 Somin
1/21 Kontorovich
1/22 Rosenkranz
1/27 Pildes
1/27 Somin
1/27 Konorovich
1/28 Rosenkranz
1/29 Rosenkranz
1/30 Rosenkranz
2/2 Pildes
2/3 Somin

I will return to this topic when the briefing begins in Bond v. United States.

We are, I thinking, nearing the end of the ongoing debate over federalism and the treaty power between guest-blogger Rick Pildes, Nick Rosenkranz, Eugene Kontorovich, and myself. My own view remains unchanged: the treaty power does not allow the federal government to make treaties that go beyond the scope of the authority granted to Congress and the president elsewhere in the Constitution. A treaty that makes commitments that go further than that is legally null and void, and cannot be enforced by the president, Congress, or the federal courts. I developed that view in greater detail here, here, and here.

In this post, I wish to comment briefly on three issues raised in Rick Pildes’ most recent contribution to the discussion: his theory that the treaty power is limited to “actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government”; the question of whether my approach would deligitimizee the 1783 peace treaty with Britain that the Founding Fathers hoped the Constitution would enable us to enforce; and the possible differences between my view and Nick Rosenkranz’s.

I. Rick Pildes’ Theory of the Limits of the Treaty Power.

In his most recent post, Rick articulates his theory of the limits of the treaty power more clearly than before:

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....

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.

The problems with this formulation run far deeper than the fact that it is – as Rick admits – extremely “vague” and difficult for courts to administer. Virtually any power could potentially become a policy tool useful as “an actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government.” With respect to almost any treaty that it might conceivably sign, the federal government can point to some concession extracted from foreign powers that serves a “legitimate national policy goal.” Even a treaty that, for example, overrides United States v. Lopez by criminalizing possession of guns in school zones, could be defended on the grounds that it will improve the public image of the United States among anti-gun Europeans. Good public relations is surely a legitimate objective of foreign policy.

Similarly, various Muslim nations have demanded that the United States censor speech offensive to their religious sensibilities. If the US signed a treaty with Saudi Arabia agreeing to ban anti-Muslim “hate speech” in exchange for discounted oil or military basing rights, that would clearly be an example of securing the Saudis’ “cooperation” for for the purpose of “advancing legitimate national policy goals.” Rick might argue that treaties that violate the Bill of Rights are unconstitutional even if they do promote legitimate policy goals. But, as Eugene Kontorovich points out, it is difficult to see why treaties that violate the Bill of Rights should be treated any differently in Rick’s framework than treaties that violate other constitutional rights or the Constitution’s structural constraints on the scope of federal power.

II. The Constitutionality of the 1783 Peace Treaty with Britain.

In both his most recent post and previously, Rick argues that my approach would invalidate the 1783 peace treaty with Britain, which ended the Revolutionary War. Earlier, I pointed out that the treaty’s provisions protecting the rights of British creditors who lent money to Americans could easily be justified under the Congress’ power to regulate international commerce. Rick now responds that the provisions protecting the property rights of British citizens. in America (mostly Americans who remained loyal to Britain during the War) could not be so justified. I am not so sure. The relevant provision of the treaty merely requires that “Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the Restitution of all Estates, Rights, and Properties, which have been confiscated belonging to real British Subjects” (*emphasis added). Making an “earnest recommendation” is very different from actually forcing the states to do anything. Like the Confederation Congress, the one established by the Constitution can make an earnest recommendation on anything it wants without exceeding the limits of its authority. Indeed, Article I of the Constitution requires Congress to “keep a Journal of its proceedings” and that journal can presumably include any recommendations – earnest or otherwise – that Congress might care to make.

Moreover, Article VI of the Constitution explicitly validates treaties signed by the United States before the Constitution went into effect: “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The 1783 treaty with Britain is obviously an “engagement.. entered into before the adoption of this Constitution.” Indeed, it was by far the most important such engagement. Why would the framers and ratifiers of the Constitution want to validate the 1783 treaty if it contained provisions that would not have been permissible in a treaty contracted under the Constitution? Possibly because the termination of America’s relationship with the mother country necessarily involved a wide range of issues unlikely to recur in future treaties. In particular, the 1783 treaty had to address the rights of numerous “Britons” who were actually Americans who had lived in the colonies all their lives, but now were threatened with dispossession or persecution by state governments due to their Loyalist sympathies.

III. Rosenkranz v. Somin?

In several posts, Rick makes the interesting suggestion that there is a fundamental difference between my position on the treaty power and that of Nick Rosenkranz. According to Rick, Rosenkranz’s view is that Congress cannot enact legislation to enforce treaties that go beyond the scope of federal authority, but such treaties can still be enforced by the federal courts, if they are designed to be “self-enforcing.”

My interpretation of Nick’s theory is that he believes such treaties are legally valid in theory, but cannot actually be enforced by any agency of the federal government unless and until we enact a constitutional amendment permitting such enforcement. As Nick himself put it, such treaties are merely “a promise to use... the amendment mechanism of Article V.” If my interpretation of Rosenkranz is correct, we have an interesting theoretical disagreement, but one with little practical importance. I explained why in this post. If Rick Pildes’ reading of Rosenkranz turns out to be accurate, then Nick and I disagree more profoundly. In my view, courts cannot enforce treaties that go beyond the scope of federal power because Article VI of the Constitution only gives treaties the status of law if they are “made... under the authority of the United States.” A treaty that purports to exercise power the federal government does not have is necessarily outside the range of that authority. Hopefully, Nick himself will reveal his original intent and explain which interpretation of his view is correct.

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.

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.

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of the state against which the war is directed, can apply only as long as this community still exists as a state within the meaning of international law. This is hardly the case if, after occupation of the whole territory of an enemy state, its armed forces are completely defeated to that no further resistance is possible and its national government is abolished by the victorious state. Then the vanquished community is deprived of one of the essential elements of a state in the sense of international law: an effective and independent government, and hence has lost its character as a state. If the territory is not to be considered a stateless territory, it must be considered to be under the sovereignty of the occupant belligerent, which—in such a case—ceases to be restricted by the rules concerning belligerent occupation. This was the case with the territory of the German Reich occupied in the Second World War after the complete defeat and surrender of its armed forces. In view of the fact that the last national government of the German Reich was abolished, it may be assumed that this state ceased to exist as a subject of international law.

There is a lot of research to be done in this vein. I recently came across a discussion in the U.N.’s International Law Commission from 1950, as part of the drafting of the Draft Declaration on Rights and Duties of States. There were quibbles from countries such as France about whether annexation is always banned, or whether there might be various exceptions.

In response, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State.” [See I Yearbook of Int. Law Comm. 137 (1950).]

Indeed, it was not surprising that there was some confusion and concern about the extent of an annexation norm, since as the delegates admitted, there were some “frontier adjustments” made by the Allies after WWII.

Guest-blogger Rick Pildes has now written five long and eloquent posts defending the proposition that a treaty can increase the legislative power of Congress. But I must say that I am struck by how little of his argument has anything to do with the Constitution as written. Rick’s five posts — like the five pages of Justice Holmes’s opinion in Missouri v. Holland — never so much as quote the relevant clauses of the Constitution. As I wrote two weeks ago:

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

At last, in Rick’s fifth post, he has given his answer. He writes that this alleged mechanism is “a structural inference from the treaty-making power in Art. II and also a result of the necessary and proper (NP) clause.” That’s it. That is the sum total of the textual argument.

The Court has made it clear that this won’t do. One cannot simply gesture toward what the Court calls “the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause.” Printz v. United States. One cannot simply assert that potentially limitless legislative power is “a result of” NP.

Scholars have tried this approach before, without really looking at the text, for a quite specific reason. For years, this position was bolstered by a celebrated bit of purported constitutional drafting history — drafting history so powerful that it seemed to obviate the need to parse the actual text. For years it was said that an early draft of the Necessary and Proper Clause actually included the words “to enforce treaties,” but that these words had been struck from the Clause as superfluous.

I have shown that this purported drafting history was simply false. See Executing the Treaty Power at 1912-18. As it turns out, no draft of the Necessary and Proper Clause ever included those words.

If nothing else, one would have thought that this revelation would send the defenders of Missouri v. Holland back to the text of the Constitution, to see what it actually says. When one reads it closely, one can see that it neither says nor implies that a treaty can increase the power of Congress. Holland‘s defenders have not yet offered a counterargument grounded in constitutional text.

Again, Justice Scalia has said: “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.” (oral argument, Golan v. Holder (2012)). To persuade Justice Scalia and his colleagues that he is wrong this time around, it will surely be necessary to point to some specific words in the Constitution.

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “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.”

This is simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are all flatly inconsistent with Rick’s claim that a treaty can increase the legislative power of Congress.

On the second point, about weight of authority, surely I have met my burden. Rick said his position was “close to universally accepted” before 1920, while citing no authority. I cited one powerful counterexample in each of the three categories that Rick suggested (treatise, congressional debate, supreme court case), plus an editorial for good measure. In response, Rick again offers zero citations — other than the ipse dixit in Missouri v. Holland itself — for the proposition that a treaty can increase the power of Congress.

Rick says only this: “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.” But we all agree about this general historical claim. What Rick needs is evidence of the claim at issue (which is, as Curt Bradley explains, a non sequitur): the claim that a treaty can increase the legislative power of Congress. As to that, Rick again offers no authority whatsoever. Neither, by the way, does David Golove. See Executing the Treaty Power at 1888-89.

Moreover, Rick surely bears a much greater burden than I do here. After all, he is trying to assert that his position was so well established in 1920 as to require no reasoning whatsoever in Missouri v. Holland. I need to show only that some respectable arguments were in the air on the other side. Surely a leading treatise, published just five years before, squarely in the opposite camp — let alone a Supreme Court case and all the rest — suffices to prove that point.

I would think we could agree — as the current Supreme Court apparently agrees — that the question merits at least some analysis. Happily, an opinion with no reasoning whatsoever has very little stare decisis force. If nothing else, we should celebrate that the Court is poised, at last, to give the question the de novo analysis it deserves.

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries.

In previous posts, I have argued that the Constitution does not give the federal government the power to make binding treaties on issues that are otherwise outside the scope of federal power (see here, here, and here). In his latest contribution to our debate, guest blogger Rick Pildes argues that this position would make it impossible for Congress to enforce peace treaties:

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.

I don’t think this is a difficult problem for my view at all. Article I of the Constitution gives Congress the power to “regulate Commerce with foreign Nations.” Borrowing money from foreign creditors is clearly “commerce with foreign nations” even under a relatively narrow definition of commerce. Therefore, enforcing this kind of term is perfectly consistent with my argument, as are other treaty terms regulating international commercial transactions. Obviously, my approach does bar some conceivable peace treaty terms. But the same is true of Rick Pildes’ own view, since he argues that treaties that require violations of the Bill of Rights are unconstitutional. Under that approach, for example, we could not enforce a treaty requiring the United States to punish public criticism of the enemy state’s government, or one requiring bench trials rather than jury trials for Americans accused of committing crimes against citizens of that state.

As I discussed here, any limits of any kind on the treaty power might sometimes bar a treaty that many believe it is in our interests to sign. But that in no way proves that the treaty power is either unlimited or constrained only by the Bill of Rights. Co-blogger Eugene Kontorovich highlights the arbitrariness of the latter view in this post.

UPDATE: Duke law professor Curtis Bradley, a leading academic expert on the treaty power, comments on our debate at the Lawfare blog. Here’s a brief excerpt:

In arguing for a treaty power unconstrained by federalism, Rick emphasizes that the Founders wanted the United States to be able to comply with its treaty commitments. That is certainly true, but I don’t see how it advances his argument. After all, a desire that the United States comply with its obligations is not the same as a desire for an unlimited ability to create obligations. Rick’s point might be that in international affairs there will at times be situations in which the United States needs to be able to trade away important constitutional values. But if that is his point, then he has no basis for insisting, as he does, that the treaty power is subject to individual rights limitations. After all, there might be national affairs interests that could call for a restriction of rights. One might respond, of course, that part of the reason for having constitutional protections is to disallow the government from making such tradeoffs, but then the same point could be made about the constitutional value of federalism.

I agree with most of the points Bradley makes in his post. As they say, read the whole thing.

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.

I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “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.”

This is a bold claim to make without citation. I’m afraid that it is incorrect on each point.

First, treatises. Just five years before Missouri v. Holland, a leading treatise on the treaty power was written by Henry St. George Tucker — law professor, dean, congressman, ABA president. Tucker considered the precise claim at issue here: “that when a treaty may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it.” The treatise emphatically rejected this proposition, and for just the right reason: “[s]uch interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power.” Henry St. George Tucker, Limitations on the Treaty-Making Power, s 113, at 129-30 (1915).

Second, congressional debates. The most important such debate about the treaty power was the one surrounding the Louisiana Purchase. The debate is too involved to recreate here, and a wide variety of positions were expressed, but suffice it to say that there was no consensus that a treaty could increase the legislative power of Congress. One of the most clear-eyed Senators powerfully expressed the contrary view, apparently concluding: (1) the treaty itself was constitutional because non-self-executing; (2) Congress’s power to execute the treaty must be found among the list of Congress’s powers; the power does not instantly and automatically arise from the treaty and/or the Necessary and Proper Clause; (3) if Congress lacks the present power to execute the treaty, it does not follow that the treaty is void; it follows, rather, that the treaty calls for a constitutional amendment. See Executing the Treaty Power at 1926-27.

Third, Supreme Court cases: In 1836, the Court said this: “The Government of the United States … is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.” Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836) (emphasis added).

Fourth, for good measure, here is a caustic editorial on just this point in the New York Tribune (Dec 8, 1879): “it will be a new discovery in constitutional law,” the Tribune sneered, “that the President and Senate can, by making a treaty, enlarge the power of Congress to legislate affecting internal affairs.”

So, it was hardly “universally accepted,” before Missouri v. Holland, that a treaty could increase the legislative power of Congress; if anything, the conventional wisdom seemed to lean the other way. In any event, as of 1920, the issue certainly deserved far more than one unreasoned sentence in Missouri v. Holland.

Happily, the stare decisis force of an opinion turns, in part, on the quality of its reasoning — and it diminishes substantially if the opinion provides no reasoning whatsoever. This is why it is such good news that the Court is now poised to give this important question the analysis it deserves.