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, ยง 8, as a necessary and proper means to execute the powers of the Government." The sentence is wrong and the case should be overruled.
  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.
  Thanks to Larry Solum for the link.
Josh L.:
I just wanted to chime in to add an endorsement of this article. I was an articles editor of a law review last year (a "top 10" review, although I admit it's somewhat obnoxious for me to write that), and we were about to try to get this piece for our journal when Mr. Rosenkranz informed us that he was withdrawing it and placing it in a more highly-ranked journal. "If only we had gotten going a few days earlier!" we lamented, though we were happy for the author. Another articles editor and I both thought it was one of the best pieces we had received all year -- certainly in the top 5. (Of course, feel free to discount that judgment if you're not a fan of students running law reviews.) In any event, I'm very happy to see that it's now in print. I agree with Prof. Kerr that it's a terrific read, and I look forward to the next piece by this thought-provoking author.
7.6.2005 5:09am
I always wondered about that issue. It seems absurd that the feds could expand their jurisdiction just by signing a treaty with a foreign country. On the other hand, after Raich maybe it's moot - is there anything at all that's ever likely to be the subject of a treaty that would fall outside the reach of the commerce clause?
7.6.2005 1:23pm
Jam (mail):
I am not a lawyer and I find the idea that the Federal government can grant themselves undelegated powers to be presposterous.

How can an agent authorize himself powers not ganted by the principal by contracting with a third party?

For example: Can an agent empowerd to establish business contracts to sell widgets then contract with a third party to sell the house of his principal? The principal/agent contract would be null and void at such fiduciary violation.

I view the treaty powers as bound by the interstate commerce clause except that it is applying in the international arena. The Federal government has no authority to enforce a treaty intra-State. And the Federal government was not granted the power to delegate any delegated powers.
7.6.2005 3:25pm
Tom Holsinger (mail):
From an original intent point of view (not that I am one), foreign practices during the period the Constitution was written should be considered.

a) Cessations of territory and other requirements wildly contrary to the Constitution were normal practice in peace treaties terminating wars. This included occupation of territory by the victorious power for limited periods as part of the terms enforcing treaty provisions (such as occupation of Massachusetts until full payment of an indemnity).

b) National governments never required consent from their local governments to make treaties. I.e., that it might be necessary for Congress to seek Constitutional amendments from states as part of the ratification process for treaties concluding wars we had lost big-time never entered the heads of anyone in making and ratifying the Constitution. Victorious foreign powers wouldn't bother trying to comply with our Constitution - they'd just order the federal government to make things happen their way or else.

So Congresss was likely believed at that time to have the inherent power, under the treaty-making provision of the Constitution, to make AND ENFORCE treaties whose provisions not merely expand Congressional power beyond that permitted under the Constitution but, at least in extremis, to make treaties which violate the Constitution.

Can anyone shoot holes in this? Or is it "too much reality"?
7.6.2005 6:30pm
Jam (mail):
How on Earth can anyone advocate the idea that you can give yourself powers/authorities you do not have to another, who can then grant you those non-existant powers back to you?

But, then, Patrick Henry was correct when he said "I smelt a rat" when he referred to the Federalists and the proposed Constitution of 1787?
7.7.2005 12:15pm