Recent posts (and comments) help clarify what is at stake in the debate about the treaty power and the Bond case. American constitutional doctrine since WW II, at least, is clear that a treaty cannot give Congress the power to violate the individual rights provisions of the Bill of Rights. That’s the principle of Reid v. Covert. Nick and I agree about that. The only issue is whether a treaty can alter the balance of lawmaking power that would otherwise exist between the national and state governments, given the Constitution’s grant of exclusive powers to the national government to make treaties and the effort to ensure that the U.S. would be able to comply with its treaty commitments.
In addition, Ilya and Nick actually disagree in profound ways that they do not yet acknowledge or recognize and that clarify my differences with Nick’s position. While this sentence gets a little ahead of the supporting argument so far, my position is going to be that Congress has legislative power to implement and enforce a valid treaty (as long as it doesn’t violate the Bill of Rights, as noted above). I recognize that puts a lot of weight on the question what makes a treaty valid (or invalid), but I think that’s precisely where the weight ought to be.
Ilya’s example illustrates this point; he is concerned with Congress enter into a treaty pretextually – not for genuine reasons of foreign policy, international relations, and the like – but for the purpose of gaining legislative powers that would otherwise be in the hands of the states. But if we are worried about that concern (it’s not clear we have a historical example of this actually having happened), the way to address it is to conclude that a pretextual treaty of this sort is not a valid exercise of the treaty power.
That is not, however, the position Nick argues. Nick argues that the national government can exercise powers it would not otherwise have vis a vis the states as long as it does so through a self-executing treaty – one that does not require further legislation to have binding domestic legal effect. Thus, all the parade of horribles that worry Ilya are not actually addressed by Nick’s argument. As long as done through a self-executing treaty, the national government can do all the things that concern Ilya. The only barrier Nick’s approach creates is to the national government adopting a non-self-executing treaty and then legislating to implement that treaty with powers otherwise left to the states.
I think that’s a particularly peculiar way to resolve “the treaty problem.” Put in other terms, Nick’s approach derives a lot of its intuitive appeal, I think, from the instinct to think there must be some limit on the treaty power. But what’s at stake here is the specific argument of what that limit actually is. My view is that if we are to look for such limits, the most appropriate place would be in determining what constitutes a valid treaty; if a treaty is valid, Congress then has the power to implement it. Nick’s position is that there are no limits on the national government’s powers when it makes a self-executing treaty, and those limits only arise when Congress legislates to implement a non-self-executing treaty. That’s the burden of Nick’s argument – to explain why sensible constitutional designers would have given the national government power to enter into self-executing or non-self executing treaties, the power to override state legislative powers in the former context, but no such power in the latter context.
Perhaps that helps clarify, for Ilya and others, what’s at stake here: it’s what the best place to look for limits on the treaty power is, if there are any judicially-enforceable limits. Let me briefly now make the last two general points I promised in response to Nick’s scholarship:
Third, Nick wants to put all the blame for the current structure of the law on Justice Holmes’ opinion for the Court in Missouri v. Holland, which has just one sentence on the issue. That sentence states the view I am defending: if a treaty is valid, Congress has the power to implement it through appropriate legislation (subject to the Bill of Rights, as above). Critics of that view like to focus on this one sentence as a way of trying to delegitimate the position: it’s just one sentence, unsupported by any analysis, in one case, that “establishes” this position. The implicit suggestion is that Holmes just invented this theory of the treaty power, that it did not exist before Holland, and that Holmes didn’t even feel any obligation to offer the reasoning to support his creation of this “novel” position.
But that view is deeply misleading in terms of the larger arc of Americna constitutional history. 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. Again, there were debates about what makes a treaty valid, but if valid, the overwhelming weight of authority and practice was that Congress had the power to implement the treaty through appropriate legislation.
That’s the peculiarity of Nick’s position: that self-executing treaties can displace state authority, but that non-self executing treaties cannot.
Fourth, we should return to the bigger picture that the historical context in my initial post describes. The burden of any approach to the treaty issue, it seems to me, is to offer an account of how that approach provides adequate answers to the profound concerns that drove the Constitution’s Framers in the first place – the concern to ensure the capacity of the national government to honor valid treaty obligations and to avoid the failed state of affairs under the Articles that followed from making treaty compliance hostage to the politics and policies of the states. Following on my first post, let’s call this the “Treaty of Peace” problem. As far as I can tell, Nick’s answer seems to be either, let the Senate and the President make the treaty self-executing; rely on the states to enforce the treaty; or get a constitutional amendment to enable Congress to enforce the treaty. But these latter two are not the answer to the treaty problem – they are a statement of the problem to which the Constitution was supposed to provide a solution. And thus the burden of Nick’s argument, it seems to me, remains explaining why a sensible way of working with the constitutional design is to conclude that self-executing treaties can displace state power but non-self-executing ones cannot.