This will be my final post of the debate with guest-blogger Rick Pildes about whether a treaty can increase the legislative power of Congress. In this post, I will just make some brief concluding remarks.
1 Rick has been at pains to suggest a fundamental disagreement between Ilya and me. This is tactically clever – opening up a second front. And Ilya and I do have an interesting theoretical disagreement. But on the fundamental point — the point on which Rick and I agreed to debate, the point on which I wrote in the Harvard Law Review, the point on which the Court has granted certiorari — Ilya and I are in perfect agreement with Henry St. George Tucker’s leading treatise, with Senator Wilson Cary Nicholas during the Louisiana Purchase debate, with the Supreme Court in Mayor of New Orleans v. United States, and with Justice Scalia at oral argument last term: a treaty cannot increase the legislative power of Congress.
2 In my last post, I pointed out that Missouri v. Holland is in deep tension with Reid v. Covert, and that it is Rick’s burden to explain why a treaty cannot empower Congress to violate the Bill of Rights (or Article I, section 9, or certain structural limits like the anti-commandeering principle) but can empower Congress to exceed its enumerated powers. Rick’s most recent post acknowledges that his approach has this “Reid v. Covert ‘problem’” and that it is “a genuinely serious question.” But he makes no attempt to answer it. Instead, Rick resorts to jujitsu. This is “every bit as much a question for Nick,” he insists, and leaves it at that.
But Reid v. Covert does not pose a problem for me. The treaty power is a power given to the President in Article II, and forbidden to the states in Article I, section 10; thus it is not a reserved power of the states under the Tenth Amendment. If a treaty is self-executing, then it creates domestic law of its own force, per the Supremacy Clause, and that law must be consistent with all restrictions on the content of domestic law — the Bill of Rights, etc. However, it need not necessarily be on the same subjects enumerated in Article I, section 8 — a section that, by its terms, enumerates the lawmaking powers of Congress, not the treatymaking powers of the President. About all this, Rick and I actually agree (though he scarcely lets on that we do).
If, however, a treaty purports to promise that Congress will make domestic law in our usual way, via Article I, section 7, (as in Missouri v. Holland and Bond v. United States), then all the usual restrictions apply to any such acts of Congress. Congress must act via biacameralism and presentment (even if the treaty says that it need not); Congress cannot violate the Bill of Rights (even if the treaty says that it must), see Reid v. Covert; Congress cannot suspend habeas in peacetime (even if the treaty says that it can); Congress cannot commandeer state officials (even if the treaty says that it can); — and Congress cannot exceed its enumerated powers (even if the treaty says that it must), see Executing the Treaty Power.
It is only this very last bit, about enumerated powers, on which Rick disagrees — his one exception to the rule. This is the “Reid v. Covert ‘problem’ that [his] approach has.” It is a problem that he has acknowledged but made no attempt to solve.
3 Finally, I am obliged to point out that Rick has never offered a textual argument for his position, though I twice challenged him to do so (here and here). In his six long posts, he never so much as quoted the relevant constitutional clauses. Again, before 2005, defenders of Holland never needed a textual argument, because they relied on an ostensibly dispositive bit of drafting history. But now that this purported history has been debunked, see Executing the Treaty Power at 1912-18, the defenders of Missouri v. Holland will surely need to return to the constitutional text, to see what it actually says. On careful reading, it does not entail that a treaty can increase the legislative power of Congress.
In conclusion, let me offer my heartfelt thanks to Rick Pildes for conducting such a spirited debate on these pages. Rick signed on for a one-on-one debate, but I’m afraid that my excellent and irrepressible co-conspirators, Ilya Somin and Eugene Kontorovich, made it something more like three-on-one. Rick never complained, and he argued eloquently. I say again: he is the most worthy adversary that I have encountered on this topic. Thank you for your excellent posts, Rick.
Here, in chronological order, are links to all of our prior posts in this series.
I will return to this topic when the briefing begins in Bond v. United States.