At the Federalist Society Faculty Convention in New Orleans last week, Prof. Rick Pildes of NYU and I debated whether a treaty can increase the legislative power of Congress. (Video here.) In a case called Missouri v. Holland (1920), the Court, per Justice Holmes, seemed to say that the answer is yes. In an article in the Harvard Law Review, Executing the Treaty Power (2005), and again in New Orleans, I argued that the correct answer is no.
The issue is of great theoretical importance, because, at least in my view, Missouri v. Holland is in apparent tension with the doctrine of enumerated powers and the basic structural principle of limited federal legislative power. The issue is also of great and increasing practical importance, as we enter into ever more international legal commitments, many of which implicate what would seem to be paradigmatic state and local matters, far from traditional international concerns.
The debate is also timely, because there is a certiorari petition currently pending at the Supreme Court, United States v. Bond, which raises this exact issue. (I filed an amicus brief on behalf of the Cato Institute, urging the Court to grant the petition.) Bond has been relisted six times, which is unusual – suggesting that at least some Justices are interested.
In our debate in New Orleans, Rick offered the best and most articulate defense of Missouri v. Holland that I have ever heard. But neither of us landed a knockout punch in New Orleans, and so Rick suggested that we continue our debate here, with perhaps three or four posts each. On behalf of Eugene and the rest of the Conspirators, I am delighted to introduce Rick as a guest-blogger for this purpose.