Hopefully, I will be able to leave the treaty power issue alone for a while after this post, but let me finish elaborating my views in the context of also responding to the series of posts from Nick and others since my last posting.
1. My principal argument has been directed against the specific limit on the treaty power that Nick argues follows from the Constitution’s text. As I said in my initial post, I believe there might well be some constitutionally derived limits on the treaty power, but that Nick’s particular argument as to what those limits are is not convincing. Curtis Bradley expressly agrees with me on that. As I read him, Ilya appears to as well, but I’m not sure he has fully worked out his view yet. But I don’t think anyone in this exchange has endorsed the specific view that is unique to Nick: that self-executing treaties can override federalism constraints, but that non-self executing treaties, followed by implementing legislation, cannot.
It was Nick’s particular theory that I was primarily debating, not the full Missouri v. Holland set of issues. At times, the discussion has run the former and the latter together, but to clarify what’s at stake, we need to be careful to keep Nick’s theory separate from other theories on how the treaty power might be constitutionally bounded. If there are limits, we need a different account than Nick’s of what they might be.
2. Further on Nick’s particular theory: Nick’s theory has the same Reid v. Covert “problem” that my approach has, though nothing in Nick’s recent post on that issue recognizes that. A longstanding question in this area has been if treaties cannot override individual rights provisions in the Constitution, why should they be able to override federalism-based constitutional provisions/doctrines (leave […]