Executing the Treaty Power:
My friend Nick Rosenkranz has posted a copy of his recent article, Executing the Treaty Power, which was published in the April 2005 Harvard Law Review. I knew absolutely nothing about the treaty power before reading this article, but I found the article a terrific read, very provocative, and (at least to this outsider) quite persuasive. Whether you agree with it or not, it's top-shelf legal scholarship. From the introduction:
The most important sentence in the most important case about the constitutional law of foreign affairs is this one: "If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." The sentence is wrong and the case should be overruled.Thanks to Larry Solum for the link.
The name of the case is Missouri v. Holland, and what that sentence means is 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 lack such power in the absence of the treaty. In other words, the powers of Congress are not fixed by the Constitution, but rather may be expanded by treaty. And if the Restatement (Third) of the Foreign Relations Law of the United States is correct that there are no subject-matter limitations on the scope of the treaty power, then it follows from Missouri v. Holland that treaties may increase the legislative power virtually without limit.
. . .
This Article endeavors to demonstrate that Missouri v. Holland is wrong. Part I describes the three great issues raised by the treaty power, examining them through the lens of Missouri v. Holland itself. Part II argues from text and structure that Justice Holmes misunderstood the relationship between the Treaty Clause and the Necessary and Proper Clause. Part III addresses Professor Henkin's counterargument from constitutional history and demonstrates his error. Part IV considers the practical implications of this thesis and the public choice arguments for and against it. The Article concludes that the crucial sentence from Missouri v. Holland is flatly wrong: treaties cannot expand the legislative power of Congress.