I want to thank Eugene and Nick for graciously inviting me to guest blog here.
One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers. This question is also pending before the Supreme Court in Bond v. United States, in which the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993. The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.
The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty Power. Distilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers. More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact. In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.
The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters. In starting to think about these issues, it’s essential to understand that ensuring that the United States would be able to credibly make and faithfully honor international agreements was one of the central purposes driving the creation of the Constitution. This aim was not just one of many desirable goals the Constitution was designed to help achieve; it was one of the central animating causes that led to the calling of the Constitutional Convention, the abandonment of the Articles of Confederation, and the overall design and structure of the Constitution. See here for a full history.
Today, it is easy to forget how fundamental it was to the Constitution’s design that the U.S. be able to make and honor treaties. The most important treaty in U.S. history is still the Treaty of Peace with Great Britain in 1782, which ended the Revolutionary War. The inability of the U.S. to honor its obligations under the Treaty, and the resulting national-security threat to the U.S. from British retaliation for the inability of the U.S. to honor its Treaty commitments, was one of the major events behind the Constitution’s creation.
The Treaty recognized the independence of the U.S. and our claim to expansive boundaries. On the British side, an essential demand was that the U.S. override state war-time confiscation laws that had eliminated or reduced pre-War debt obligations of American debtors to British creditors. In the Treaty, the U.S. agreed to do so to ensure these debts would be honored in full; as part of the pact, the British also agreed to withdraw from their forts in the northwest of the U.S. But all that Congress could do, under the Articles of Confederation, was to ask the states to honor these international commitments the U.S. had made, and Virginia (whose citizens owed the largest portion of these debts) refused to do so. In retaliation, the British refused to withdraw from their forts and held the security of the U.S. hostage.
Notice that the Treaty regulated property or contract claims — debts — that are ordinarily regulated under state law. In addition, this problem of states undermining the capacity of the U.S. to honor its treaty obligations and be a credible nation in world affairs, with consequences to both the security and economic prosperity of the country, was a general problem under the Articles (for a fuller history on the Treaty of Peace, see the magisterial article on the history of the treaty power: David Golove, Treaty-Making and the Nation).
Numerous provisions reveal the extent to which the Constitution was designed to remedy this defect. Although treaties were made difficult to enter into, requiring 2/3 support in the Senate for ratification, the Constitution sought to ensure that the U.S. would have the capacity to honor valid treaties. Thus, the Constitution expressly makes treaties part of the “supreme law of the land;” the Art. III federal judicial power expressly extends to cases arising under treaties, to ensure their effective enforcement; the states are expressly denied power to enter into treaties; and the states are also denied power to enter into international compacts without congressional consent.
In addition, the Constitutional Convention explicitly debated but rejected the proposal to limit the subject matter of treaties into which the U.S. could enter, because of the view that the U.S. needed to have the power to decide over time the subject on which it would be desirable to enter into treaties to promote the interests of the U.S. Moreover, the Founding Era is overflowing with statements and positions that express the necessity and importance of the Constitution enabling the U.S. to honor its treaty commitments. As just one brief glimpse, here is what Federalist Papers #22 (by Hamilton) has to say:
The treaties of the United States, under the present Constitution [of the Confederation], are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation.
This brief account of the historical problems and context against which the Constitution was crafted is necessary to set the stage for considering Nick’s approach to the “treaty problem.”
Yet pushing back against all this history and original understanding is the kind of intuition or anxiety that fuel’s Nick’s argument and related ones that have arisen throughout U.S. history: if no limit on the treaty power and related national powers exists, can’t the national government subvert the federal/state balance of power that the Constitution also works so hard to establish? To make this concrete, let’s assume Congress does not have the legislative power to abolish the death penalty in the states. If the U.S. then enters into a treaty on this subject, can Congress now legislate to abolish the death penalty? Or, to take the issue in Bond itself, if Congress would not otherwise have the power to regulate an individual’s possession and use of toxic chemicals, can Congress gain this power as a means of implementing the Chemical Weapons Convention?
The issue takes on even more heightened stakes with the rise of human rights treaties the U.S. has signed in the post-WWII era. If Congress would not otherwise have the power to legislate in these areas, can it do so as a means of implementing these treaties? These questions illustrate the tension or puzzle or conundrum about the treaty power.
This post has gone on long enough in providing the historical perspective needed to assess Nick’s argument. In subsequent posts, I will offer my reasons for not being persuaded by Nick’s approach to the treaty power. I will then suggest some alternative approaches.